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"The statement , in any document whatever, of a fact other than the facts other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact."

It can scarcely admit of doubt that the phrase "facts referred to in this section" occurring in this Explanation means "the terms of such contract, grant or other disposition of property" mentioned in Sec. 91.

(10) The question now is whether in view of the unregistered document of partition of May, 1958, the defendant can be permitted to prove the factum of a prior partition by oral and other documentary evidence. The Court below has held in favour of the defendant on this point. The learned counsel for the plaintiff-appellant. earnestly challenges the correctness of that view. According to him. the existence of an unregistered partition deed precludes proof of a prior partition between the parties. His argument in that Sec. 49 (c) of the Registration Act put the unregistered document out of court. He contends that Sec. 91 of the Evidence Act cannot help the defendant because the fact of partition itself is a term of the unregistered partition deed. According to him, the position in the eye of law is that the properties continue to remain joint and a partition suit is therefore maintainable. For this proposition, he relies mainly on a full Bench decision of the Madras High Court in Ramayya v. Achamma, (1944) 2 Mad LJ 164 : (AIR 1944 Mad 550) (FB).

But this decision does not appear to govern a case like the present. There, the plaintiff claimed title to certain specified items of land on the strength of the title obtained by her deceased husband under a partition document. But the document of partition was unregistered. Therefore her right or title could not founded on it. What is more, the allotment of the particular items of land was one of the terms of the unregistered partition deed. Therefore Sec. 91 of the Evidence Act stood in her way in proving any independent evidence that the specified items of properties had been allotted to her husband in a family partition. It was in those circumstances that the Full Bench held that the plaintiff was not entitled to a decree in ejectment of the trespassers who were the other members of the erstwhile joint family. In the instant case, no attempt is made by the defendant to show that any specified item of immovable property was allotted to him in a partition between him and the plaintiff. If he had made such a claim, the circumstances of the partition document being unregistered would have been an insuperable hindrance in his ways.

(16) The learned counsel for the appellant has, however, strenuously urged that as the partition deed itself cannot "effect" the properties comprised therein because of Section 49 (a) of the Registration Act and as its reception as evidence of the transaction of partition is interdicted by Section 49 (c), partition becomes non-existent as a fact. We consider this an untenable proposition. Section 49 does not operate to efface any fact. It is not even concerned with what can be proved and what cannot be. It only disqualifies, so to say, unregistered documents which fall with its mischief. Clause (a) of it says that a document which falls within the purview of Section 17 and it is not registered shall not serve to create, declare, assign, limit or extinguish any right, title or interest in the immovable property comprised in it. The Respondent before us does not base any claim to property. on the unregistered partition deed. Therefore clause (a) of section 49 does not comfort him. Nor does clause (c) trouble him because he does not seek to tender the unregistered document as evidence . We have earlier in this judgment considered the ambit of Section 49. There is absolutely nothing in it to obliterate the existence of a fact - a concept hardly familiar to law.

(21) Equally, the reference to Subramonian v. Lutchman, ILR 50 Cal 338 : (AIR 1923 PC 50) is not of any assistance to the appellant. In that case, the memorandum which accompanied the deposit of title deeds represented the bargain between the parties and therefore the Judicial Committee held that without its production in evidence - proof of its terms being excluded by section 91, Evidence Act - the plaintiff could establish no claim, and as it was unregistered, it could not be received in evidence . That was a case of a mortgage by deposit of title deeds accompanied by a written memorandum which in the words of their Lordships "was the bargain between the parties". As the written memorandum which in the words of their Lordships "was the bargain between the parties". As the written memorandum was inadmissible in evidence for want of registration, the mortgage could not be enforced. That case bears no anology to the instant case because there without proving the terms of the unregistered memorandum which accompanied the deposit of title deeds, it was impossible to prove the mortgage itself and get relief on foot on it. In the case before us the factum of previous partition can effectively be proved without admitting into evidence the unregistered documents of partition and without proving its terms.