Full Judgment Text
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PETITIONER:
NANNI BAI AND OTHERS
Vs.
RESPONDENT:
GITA BAI
DATE OF JUDGMENT:
14/04/1958
BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
SUBBARAO, K.
CITATION:
1958 AIR 706 1959 SCR 479
ACT:
Agriculturist Protection of--Jurisdiction of Special
Judge--Execution sale, if binds the legal representative not
Party to it-Limitation-Mitakshara Law of Partition-Document,
if and when must be registered-Admissibilitv-Sangli State
Agriculturist Protection, Act (1 of 1936)-Indians Limitation
Act (IX of 1908), Arts. 12, 134 and 148-Indian Registration
Act (Act XVI of 1908), ss. 17 and 49.
HEADNOTE:
This was an appeal by the defendants in a suit for
possession on redemption of certain mortgages instituted in
the Court of the Special judge exercising jurisdiction under
the Sangli State Agriculturists Protection Act (1 of 1936).
Their case was that the mortgaged properties had been sold
at auction and purchased by their father who had sold most
of them to other persons more than 12 years before the
institution of the suit and as such the suit was barred by
limitation. The trial Court dismissed the suit. On appeal
the High Court of Sangli permitted the plaintiff to amend
the plaint originally filed so as to include the relief for
redemption and remanded the suit. The trial court,
thereafter, decreed the suit in part, holding that the claim
in respect of portions only of the mortgaged properties was
barred by limitation. Both the parties appealed to the High
Court of Bombay and the appeals were heard together. The
High Court dismissed the defendant’s appeal and allowed the
plaintiff’s appeal holding that Art. 148 and not Art. I34
Of the Limitation Act applied. In the result, the
plaintiff’s suit was decreed in its entirety.
Held, that the preliminary objection that the Special judge
had no jurisdiction under the Sangli State Agriculturists
Protection Act to entertain the suit must be overruled. The
fixing of ,915 as the date-line by the Act had reference to
such reliefs as could be had only by way of reopening of
closed transactions and could not, therefore, preclude the
Special Judge from granting other reliefs in respect of
transactions entered into prior to 1915.
Nor could it be contended in bar that the plaintiff was
bound in the first instance to set aside an auction sale of
the mortgaged properties in execution of a money decree in
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which she was not substituted in place of her deceased
father as his true heir and legal representative nor made a
party and no controversy was raised by the parties nor
decided by the Court as to who was the true legal
representative. The plaintiff was entitled to ignore the
sale and the suit was not barred under Art. 12 of the Limi-
tation Act.
480
Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa,
(1900) L.R. 27 I.A. 216, doubted and distinguished.
In order that Art. I34 of the Limitation Act might be
attracted to a suit for possession on redemption, it was
necessary for the defendant to prove affirmatively that the
mortgagee or his succesor-in-interest had transferred a
larger interest than was justified by the mortgage. Where,
as in the present case, this was not done, Art. 134 could
not apply and the only other article which could-apply was
Art. 148 Of the Limitation Act.
Under the Mitakshara School of Hindu Law partition may be
either (1) a severance of the joint status of the
coparcenary by mere defining of shares but without specific
allotments or (2) partition by allotment of specific
properties by metes and bounds according to shares. The
latter, if reduced to writing becomes compulsorily
registrable under s. I7(1)(b) of the Indian Registration Act
but the former does not.
Consequently, in the present case such unregistered docu-
ments as were adduced by the plaintiff for the limited
purpose of proving partition in the former sense did not
fall within the mischief Of s. 49 of the Indian Registration
Act and were admissible in evidence.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 177 of 1954.
Appeal from the judgment and decree dated October 9, 1950 of
the Bombay High Court in First Appeals Nos. 361 & 363 of
1948 from Original Decree arising out of the judgment and
decree dated July 31, 1946, of the Court of Special
Tribunal, Mangalvedhe in Special Suit No. 1322 of 1938.
L. K. Jha, Rameshwar Nath, J. B. Dadachanji and S. N.
Andley, for the appellant.
K. R. Bengeri and K. R. Chaudhari, for the respondent.
1958. April 14. The following Judgment of the Court was
delivered by
SINHA J.-This is a defendants’ appeal by leave granted by
the High Court of Judicature at Bombay from the decision of
that Court, dated October 9, 1950, in two cross-appeals from
the decision of the Special Judge of the Special Tribunal
Court at Mangalvedhe, dated July 31, 1946, in Special Suit
No. 1322 of 1938. Of the two cross-appeals, the First
Appeal No. 361 of 1948, by the appellants, was dismissed,
and the First
481
Appeal No. 363 of 1948, by the plaintiff, was allowed. The
plaintiff-respondent had instituted another suit, being suit
No. 1894 of 1937, which was also tried along with Special
Suit No. 1322 of 1938. The former suit stands dismissed as
a result of the judgment of the High Court, and no appeal
has been brought against that judgment to this Court.
The suit out of which this appeal arises (Special Suit No.
1322 of 1938), was instituted under the provisions of the
Sangli State Agriculturists Protection Act, granting certain
reliefs from indebtedness to agriculturists of that State
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which was then outside what used to be called " British
India ". The suit as originally framed, prayed for accounts
in respect of two mortgages, though there were really three
mortgages, to be described in detail hereinafter, and for
possession of the, lands comprised in those mortgages. The
first, defendant filed his written statement on January 6,
1940, contesting the suit mainly on the ground that the
plaintiff had no title to the mortgaged properties in view
of the events that had happened; that the mortgaged
properties had been sold at auction and purchased by the
defendant’s father who, thus, became the full owner thereof;
and that he had sold most of the properties to other persons
who were holding those properties as full owners.
Defelidant No. 3 who also represents the original mortgagee,
filed a separate written statement supporting the first
defendant. Of the defendants who are transferees from the
original mortgagees or their heirs only defendant No. 8
filed his written statement on March 26, 1940, substantially
supporting the first defendants written statement and adding
that he had purchased the bulk of the mortgaged properties
after acquisition of full title by the mortgagees themselves
more than 12 years before the institution of the suit, and
that, therefore, it was barred by limitation.
The trial court dismissed the suit by its judgment dated
November 26, 1941, with costs. On appeal by the defeated
plaintiff, the Special Bench of the High Court of Sangli
State, by its judgment dated June 13, 1944, remanded the
suit for a fresh trial after having permitted the plaintiff
to amend the plaint so as to
482
include the relief for redemption. It appears that during
the pendency of the suit after remand, an application was
made in February, 1945, for making substitution in place of
defendant No. 2 who had died meanwhile, but the application
was refused by the Court on the ground that the suit had
abated as against that defendant. After reframing the issues
and rehearing the ,lase, the trial court, by its judgment
and decree dated July 31, 1946, dismissed the suit as
against defendants 6 to 9 who were holding portions of the
mortgaged properties by sale-deeds of the years 1919 and
1922, for more than 12 years, as barred by limitation under
Art. 134 of the Limitation Act. The Court decreed the suit
in respect of the mortgaged portion of R. S. No. 1735,
having an area of 16 acres and 21 gunthas, as against
defendant No. 3, and R. S. No. 334 against defendant No. 1’s
heirs. Each party was directed to bear its own costs
throughout. From that decision, the defendants preferred a
first appeal, being First Appeal No. 361 of 1948, and the
plaintiff filed a crossings, being First Appeal No. 363 of
1948, in the High Court of Judicature at Bombay. Both the
appeals were heard together along with two other cross-
appeals arising out of the other suit mentioned above. The
High Court, by its judgment and decree dated October 9,
1950, dismissed the defendants’ appeal No. 361 of 1948, and
allowed the plaintiff’s appeal No. 363 of 1948, with costs,
holding that Art. 148 and not Art. 134 of the Limitation
Act, applied to the suit, and that, therefore, it was not
barred by limitation. In the result, the plaintiff’s suit
was decreed in its entirety.Hence, this appeal by the
defendants.
A number of Questions of fact and law have been raised by
the learned counsel for the appellants, but before we
proceed to deal with them, it is convenient to dispose of
the preliminary points in bar of the suit. At the fore-
front of his submissions, the learned counsel for the
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appellants contended that the suit was outside the
jurisdiction of the Special Court created under the Sangli
State Agriculturists Protection Act I of 1936. With
reference to the provisions of that Act, it was contended
that the Act authorized the Special Court to
483
take accounts and to reopen closed transactions only up to
the year 1915, and that as the transactions which were the
subject-matter of the suit, were of the years 1898, 1900 and
1901, the Special Court was not competent to go into those
transactions and grant any relief to the agriculturist-
plaintiff. In our opinion, there is no substance in this
contention. The Sangli Act referred to above, had chosen
the year 1915 as the dateline beyond which the court was not
competent to grant any relief to agriculturists, by way of
reopening of closed transactions. But that does not mean
that the court itself was incompetent to grant any other
relief in respect of transactions of a date prior to 1915.
If the legislature had intended to limit the jurisdiction of
the Special Court, as contended on behalf of the appellants,
nothing would have been easier than to say in express terms
that the court’s jurisdiction to grant relief was limited to
transactions of that year and after, but there are no such
words of limitation in any part of the statute. The
operative portion of the statute does not contain any such
provision. In our opinion, therefore, the Special Court was
competent to entertain the suit for redemption, though it
would not be competent to reopen those transactions even if
any such question of reopening closed transactions had been
raised. But it is manifest that no such question arose out
of the pleadings in this case. Hence, those words of
limitation are wholly out of the way of the plaintiff. It
may be mentioned that no such plea of want of jurisdiction
of the trial court, had been raised in the pleadings or in
the issues in the courts below. This ground was raised, for
the first time, in the statement of case in this Court. The
preliminary objection to the jurisdiction of the trial court
is, thus, overruled.
It was next contended that the suit was barred by limitation
of one year under Art. 12 of the Limitation Act. The point
arose in this way. The properties sought to be redeemed
were mortgaged, as will presently appear, successively under
three bonds of the years 1898, 1900 and 1901, by the
plaintiff’s father, Gundi (omitting all reference to his
brothers).
484
It appears that there was a decree for money of the year
1903, in favour of a third party who is not before us.
Gundi had been stied as the original defendant, but after
his death, his place was taken by his brother Sadashiv as
his heir and legal representative. In execution of the
decree, the mortgaged properties were auction-purchased by
the mortgagee’s Fulchand, son of the first defendant as it
appears from the sale-certificate, Exh. D-56, dated October
31, 1907. On the basis of this auction-purchase, it, has
been contended on behalf of the mortgagee that unless the
sale were set aside, it would bind Gundi and his successor-
in-interest, the plaintiff. The High Court has held that
Art. 12 is out of the way of the plaintiff because neither
the plaintiff nor her father was a party to the sale. If
Gundi himself were a party to the execution proceedings, the
sale as against him, would bind his estate and his
successor-in-interest. But it appears that Gundi was
substituted by his brother Sadashiv in the execution
proceedings. If Sadashiv could not be the
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representative-in-interest of Gundi, as will presently
appear, he could not have represented Gundi’s estate, and,
therefore, the gale as against him, would be of no effect as
against the plaintiff. Bat it was argued in answer to this
contention that the decision of the Privy Council in the
case of Malkarjun Bin Shidramappa Pasare v. Narhari Bin
Shivappa (1), is an authority for the proposition that even
if the property was sold by substituting a wrong person as
the legal representative of the judgment-debtor, the sale
would bind the estate of the judgment-debtor as much as if
the right legal representative had been brought on the
record of the execution proceedings. Assuming that the
decision of the Privy Council in Malkarjun’s case (supra) is
correct, and that it is not subject to the infirmities of an
ex parte judgment, asimay well be argued, that decision is
clearly distinguishable so far as the present case is
concerned. In Malkarjun’s case, the executing court had
been invited to decide the question as to who was the true
legal representative of the judgment-debtor, and the court,
after
(1) (1900) L.B. 27 1, A. 216
485
judicially determining that controversy, had brought on
record the person who was adjudged to be the true legal
representative. The sale was held to be of the property of
the judgment-debtor through his legal representative, after
the adjudication by the court. The Privy Council held that
though the decision of the court on the question as to who
was the true legal representative, was wrong, it was a
decision given in that litigation which affected the
judgment-debtor and his true legal representative, unless
set aside in due course of law. In the present case, there
was no such adjudication. From the scanty evidence that we
have on this part of the case, it appears that Gundi, the
original defendant, had died and had been, without any
controversy, substituted by his brother, Sadashiv. The
court had not been invited to determine any controversy as
between Sadashiv and the true legal representative of Gundi
deceased. In execution proceedings, the property was sold
as that of Sadashiv the substituted judgment-debtor. It was
a moneysale and passed only the right title and interest of
Sadashiv, if it bad any effect at all. Malkarjun’s case
(supra), therefore, is of no assistance to the appellants.
The plaintiff, Gundi’s daughter, not being affected in any
way by the sale aforesaid, it is not necessary for her to
sue for setting aside the sale. She was entitled, as she
has done, to ignore those execution proceedings, and to
proceed on the assumption, justified in law, that the sale
had not affected her inheritance. The suit is, therefore,
not barred by Art. 12 of the Limitation Act.
It was next contended that even if Art. 12 was not available
to the defendants by way of a bar to the suit, the suit was
certainly barred under Art. 134 of the Limitation Act.
Under Art. 134, the plaintiff has to sue to recover
possession of immovable property mortgaged and, afterwards,
transferred by the mortgagee for a valuable consideration,
within 12 years from the date the " transfer becomes known
to the plaintiff ". On the other hand, it has been contended
on behalf of the plaintiff that the usual
486
rule of 60 years’ limitation under, Art. 148 of the
Limitation Act, governs the present case. On this part of
the case, the defendants suffer from the initial difficulty
that the sale-deeds relied upon by them in aid of the plea
of limitation under Art. 134, have not been brought on the
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record of this case, and, therefore, the Court is not in a
position to know the exact terms of the sale-deeds. This
difficulty, the appellants sought to overcome by inviting
our attention to the statements made in paragraph 8 of the
plaint. But those are bald statements giving the reasons
why the defendants other than the original mortgagee, were
being impleaded as defendants. There is no clear averment
in that paragraph of the plaint about the extent of the
interest sold by those sale-deeds and other transfers
referred to therein. The Court is, therefore, not in a
position to find out the true position. Those sale-deeds
themselves were the primary evidence of the interest sold.
If those sale-deeds which are said to be registered
documents, were not available for any reasons, certified
copies thereof could be adduced as secondary evidence, but
no foundation has been laid in the pleadings for the
reception of other evidence which must always be of a very
weak character in place of registered documents evidencing
those transactions. Article 134 of the Limitation Act
contemplates a sale by the mortgagee in excess of his
interest as such. The legislature, naturally, treats the
possession of such transferees as wrongful, and therefore,
adverse to the mortgagor if he is aware of the transaction.
Hence, the longer period of 60 years for redemption of the
mortgaged property in the hands of the mortgagee or his
successor-in-interest, is cut down to the shorter period of
12 years’ wrongful possession if the transfer by the
mortgagee is in respect of a larger interest than that
mortgaged to him. In order, therefore, to attract the
operation of Art,. 134, the defendant has got affirmatively
to prove that the mortgagee or his successor-in-interest has
transferred a larger interest than justified by the
mortgage. If there is no such proof, the shorter period
under Art. 134 is not available to the
487
defendant in a suit for possession after redemption. A good
deal of argument was addressed on the question as to upon
whom lay the burden to prove the date of the starting point
of limitation under that article. It was argued on behalf
of the defendants-appellants that as it is a matter within
the special knowledge of the plaintiff, the plaint should
disclose the date on which the plaintiff became aware of the
transfer. On the other hand, it was contended on behalf of
the plaintiff-respondent that it is for the defendants to
plead and prove the facts including the date of the
knowledge which would attract the bar of limitation under
Art. 134. As we are not satisfied, for the reasons given
above, that Art. 134 is attracted to the present case, it is
not necessary to pronounce upon that controversy. It is,
thus, clear that if Arts. 12 and 134 of the Limitation Act,
do not stand in the way of the plaintiff’s right to recover
posses.-,ion, the only other Article which will apply to the
suit, is Art. 148. It is common ground that if that Article
is applied, the suit is well within time.
Before dealing with the factual aspects of the case, it is
necessary to deal with another plea in bar of the suit
raised on behalf of the appellants. It is contended that
the suit is bad for defect of parties in so far as the heirs
of the second defendant are concerned. It appears from the
order dated March 27, 1946, passed by the trial court during
the pendency of the suit after remand, that the second
defendant died on April 26, 1943, that is to say, while the
appeal before the Bombay High Court was pending in that
Court before remand. The then appellant who was the
plaintiff, did not take steps to bring on record the legal
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representatives of that defendant. An attempt was made by
the plaintiff later on to get his heirs substituted on the
record, but the Court upheld the defendants objection and
did not allow substitution to be made. It was, therefore,
noted that the appeal which was then pending in the High
’Court, had abated as against defendant No. 2, and that, the
order of remand made after his death and in the absence of
his legal representatives, would not affect them.
Therefore, it was
488
contended that the whole suit would abate, because, in the
absence of the heirs of the deceased defendant No. 2, the
suit was imperfectly constituted under 0. 34, r. I of the
Code of Civil Procedure. That rule requires that " all
persons having an interest either in the mortgage-security
or in the right of redemption shall be joined as
parties............ The original mortgagee. under the three
mortgages, was Kasturchand Kaniram. The defendant No. 1 has
contested this suit by filing a separate written statement
of his own as the successor-in-interest of the original
mortgagee. It does not appear from the pleadings that the
second defendant was a joint mortgagee with the first defen-
dant or his ancestors. The only statement in the plaint in
para. 8, with reference to the second defendant, is that the
" Lands R. S. No. 1735 has gone to the share of defendant
No. 2. Defendant No. 3 looks after all the transactions of
defendant No. 2 and the shop running under the name of ’
Kaniram Kasturchand ’ has gone to the share of defendant No.
3 ". Thus, it is not a case of the first defendant being
joint with the other defendants including defendant No. 2
who is not now represented on the record. If defendant No.
2 had any distinct interest, that, on the plaint, appears to
be confined to R. S. No. 1735. In the written statement
filed on behalf of the third defendant, it is stated in
para. 9 that the mortgaged portion of R. S. No. 1735 which,
according to the plaint, was the property of the second
defendant, was really in possession of the third defendant
as owner. It would, thus, appear that even in respect of
that plot, the second defendant had no subsisting interest.
This claim of the third defendant is strengthened by the
fact that the second defendant did not file any written
statement challenging \the statement aforesaid of the third
defendant or claiming any interest in that plot or any other
part of the mortgaged property. The second defendant had
remained ex parte throughout, apparently because he had no
interest in the property to be redeemed. In any view of the
matter, his heirs are not parties to this suit, and any
determination in this suit will not bind them. But it does
appear that
489
the second defendant had no subsisting interest, if he had
any at any anterior period, in any portion of the mortgaged
property.
It was also contended that the original defendant No. 8
died, and in his place defendants Nos. 8a to 8g were
substituted. It appears that of the seven persons
substituted on the record as the legal representatives of
the original defendant No. 8, only defendants 8e, 8f and 8g
were served, and the others, namely, 8a, 8b, 8c and 8d were
not served. On those facts, it was contended that the suit
for redemption was bad in the absence of all the necessary
parties. It was sought, at one stage of the arguments, to
be argued that the suit had abated against defendant No. 8,
and this argument, in the High Court, was met by the
observation that under O. XXII, r. 4, Code of Civil
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Procedure, it was enough to bring on record only some out of
the several legal representatives of a deceased party, on
the authority of the judgment of the Bombay High Court in
Mulchand v. Jairamdas (1). But on the facts stated above,
there was no room for the application of r. 4, O. XXII of
the Code. All the legal representatives, at any rate, all
those persons who were said to be the legal representatives
of the deceased defendant No. 8, had been substituted.
Thus, the requirements of O. XXTI had been fulfilled. If,
subsequently, some of the heirs, thus substituted, are not
served, the question is not one of abatement of the suit or
of the appeal, but as to whether the suit or the appeal was
competent in the absence of those persons. It does not
appear that the absent parties were really necessary parties
to the suit or the appeal in the sense that they were
jointly interested with the others already on the record in
any portion of the mortgaged property. In what
circumstances they were not served or ordered to be struck
off from the record, does not clearly appear from the
printed record before us. The defendant No. 8e who happens
to be the brother of the original defendant No. 8, has only
filed a written statement claiming that he and his vendor,
defendant No. 7, had been in possession for more than 12
years, and that
(1) (1934) 37- Bom. L, R. 288,
490
the suit was, on that count, barred by limitation. None of
the other defendants who had been brought on the record in
place of the original defendant No. 8, has appeared in the
suit or in the appeal to contest the claim of defendant No.
8e that he was in possession of that portion of the
property, namely, 6 acres and 32 gunthas out of R. S. No.
242 (old survey No. 233). Renee, there was no question of
abatement of the suit or the appeal. The only question
which may or may not be ultimately found to be material on a
proper investigation, may be whether the decree to be passed
in this case, would be binding on those who had not been
served. For ought we know it may be that they were not
interested in the plot sought to be redeemed. On these
findings, it must be held that the preliminary objections
raised on behalf of the defendants in bar of the suit, must
be overruled. Hence, the whole suit cannot be held to be
incompetent for the reason that the heirs of defendant No. 2
have not been brought on the record.
Having, thus, disposed of the specific pleas in bar of the
suit, we now turn to the contentions bearing on the factual
aspects of the controversy. It was contended that the
plaintiff who is admittedly the daughter of Gundi, has not
established her title to the mortgaged properties. In this
connection, it is convenient to set out the essential facts
in relation to the three mortgage. deeds in question. The
first mortgage is dated June 4, 1898, in favour of
Kasturchand Kaniram, executed by Gundi, son of Appa, for the
sum of Rs. 700, the amount borrowed by him, mortgaging 7
survey numbers with an aggregate area of 43 acres and 38
gunthas. It was a mortgage with possession for a period of
4 years, with Gundi’s two brothers-Sadashiv and Rama-as
sureties for the repayment of the amount borrowed which was
the personal responsibility of Gundi under the terms of the
document. But the property mortgaged is admittedly the
ancestral land of the three brothers. The second mortgage
between the same parties in respect of the same properties,
bears the date May 25, 1900. It secures a further advance
of Rs. 300 to the mortgagor, the payment of which debt
491
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is again assured by his two brothers-Sadashiv and Rama-as
sureties. The third mortgage-bond is for a further advance
of Rs. 200 to the mortgagor Gundi, with his brothers
aforesaid again figuring as sureties. It would, thus,
appear that all the three mortgages are between the same
parties as mortgagor and mortgagee, and the two brothers of
the mortgagor join in executing the mortgages as sureties,
the property given in mortgage belonging to all the three
brothers. The total advance of Rs. 1,200 under those three
mortgages, was made to the principal debtor, Gundi. It
appears that, of the three brothers, Rama died first, and
then Gundi, some time in 1903, survived by his two
daughters-the plaintiff and defendant No. 13. The
plaintiff’s case is that the common ancestor, Appa, in his
lifetime, had effected a partition amongst his three sons
aforesaid, giving them each specific portions of his lands,
reserving a portion for the maintenance of his wife. Those
transactions are exhibits P-43, P-44, P-45 and P-46, all
dated August 31 or September 1, 1892, and, apparently,
forming parts of the same transaction. These are formal
documents giving details of the lands allotted to each one
of the three brothers and to their mother by way of
maintenance. The common recital in these documents, is that
the executant of the documents, Appa, had three sons-Gundi,
Sadashiv and Rama, in order of seniority-" who cannot pull
on together The document further recites: ".Hence,
separation having been effected with your consent, (I have)
divided in every way and given you the estate, the land, the
assets etc., pertaining to the one-third share. The same
are as under. " Then follow the details of the properties
separately allotted to each of them. The plaintiff’s case
is that ever since 1892-the date of the documents aforesaid-
the three branches of the family had become separate in
estate, if not also divided in all respects, and that on the
death of Raina, Guildi and his brother Sadashiv inherited
his one third share in equal moieties, that is to say , on
the death of their mother and their brother, the two
brothers became owners of half and half of the ancestral
492
property left by Appa who appears to have died soon after
the alleged partition. The plaintiff’s case further is that
the principal mortgagor in all those three transactions
aforesaid, was Gundi, and his two brothers had joined only
as sureties by way of additional security in favour of the
mortgagee, It has been contended on the other hand on behalf
of the defendants-appallants that, in the first instance,
the documets of 1892, referred to above, do not evidence an
actual partition by metes and bounds, but only represent an
arrangement by way of convenience for more efficient and
peaceful management of the family property, and that,
alternatively, if those documents are claimed to have the
efficacy of partition deeds, they are inadmissible in
evidence for want of registration. The courts below have
held that those documents are inadmissible in evidence as
regular deeds of partition which they purport to be, in view
of the provisions of the Registration Act. But those
transactions have been used for the collateral purpose of
showing that from that time, the three brothers became
separate in estate, and evidencing the clear intention on
the part of each one of them to live as separated members,
each with one-third share in the paternal estate. In this
connection, reliance was placed on behalf of the appellants’
upon what was alleged to be the subsequent conduct of the
three brothers after 1892, as evidenced by the three
mortgage-bonds themselves and the saledeed-exhibit D-54-
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dated June 17, 1909. By the last named document, Sadashiv
purported to sell to Fulchand Kasturchand, son of the
original mortgagee, practically the whole of the mortgaged
properties, for a sum of Rs. 1,500. The recitals in the
sale-deed would certainly make it out that the three
brothers were joint in estate, and that the sale-deed was
being executed to pay off the personal loans of Gundi and
Rama during the Years 1900 to 1903, plus the loans taken by
the vendor himself. Finally, the deed proceeds to make the
following very significant declaration as to the status of
the members of the so-called joint family: "As I have sold
to you my right, title and interest in the above said lands,
neither I nor my heirs and
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executors of my will have any right whatsoever over the said
property. As I am the male heir in the joint family by
survivorship nobody except me has any interest in the
aforesaid lands. I have sold to you whatever interest I had
in the said, lands."
It was further contended that even strangers to the family
treated the brothers as joint in estate as shown by the
execution proceedings and the sale certificates of the years
1903 to 1907, whereby Sadashiv was substituted as the sole
heir and legal representative of the defendant Gundi, in the
suit for money which resulted in the, auction-sale referred
to above, of the ear 1907.
If the transaction of the year 1892, is admissible in
evidence, for the purpose for which the document was used in
the courts below, namely, to prove separation in estate,
there is no room for ambiguity, and the position is clear
that the three brothers had become separate. Further
recitals in those documents that specific portions of the
ancestral property had been allotted to the three brothers
separately, being in the nature of a partition deed by the
father in his life-time, and being unregistered, are
inadmissible in evidence to prove such a partition. But the
plaintiff’s case does not depend upon proof of actual
partition by metes and bounds. In the absence of any
ambiguity, the later transactions would not be relevant
except to show that there was a subsequent reunion amongst
the brothers, which is no party’s case.
But it was argued on behalf of the appellants that those
documents-exhibits P series aforesaid-are not admissible in
evidence even for the limited purpose of showing separation
in estate. The question, therefore, is whether those
documents " purport or operate to create, declare, assign,
limit or extinguish, whether in present or in future, any
right, title or interest, whether vested or contingent, of
the value of one hundred rupees and upwards, to or in
immovable property", within the meaning of s. 17(1) (b) of
the Registration Act. No authority has been cited before us
in support of this contention. Partition in the
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Mitakshara sense may be only a severance of the joint status
of the members of the coparcenary, that is to say, what was’
once a joint title, has become a divided title though there
has been no division of any properties by metes and bounds.
Partition may also mean what ordinarily is understood by
partition amongst co-sharers who may not be members of a
Hindu coparcenary. For partition in the former sense, it is
not necessary that all the members of the joint family
should agree, because it is a matter of individual volition.
If a coparcener expresses his individual intention in
unequivocal language to separate himself from the rest of
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the family, that effects a partition, so far as he is
concerned, from the rest of the family. By this process,
what was a joint tenancy, has been converted into a tenancy
in common. For partition in the latter sense of allotting
specific properties or parcels to individual coparceners,
agreement amongst all the coparceners is absolutely
necessary. Such a partition may be effected orally, but if
the parties reduce the transaction to a formal document
which is intended to be the evidence of the partition, it
has the effect of declaring the exclusive title of the
coparcener to whom a particular property is allotted by
partition, and is, thus, within the mischief of s. 17(1)
(b), the material portion of which has been quoted above.
But partition in the former sense of defining the shares
only without specific allotments of property, has no
reference to immovable property. Such a transaction only
affects the status of the member or the members who have
separated themselves from the rest of the coparcenary. The
change of status from a joint member of a coparcenary to a
separated member having a defined share in the ancestral
property, may be effected orally or it may be brought about
by a document. If the document does not evidence any
partition by metes and bounds, that is to say, the partition
in the latter sense, it does not come within the purview of
s. 17(1) (b), because so long as there has been no partition
in that sense, the interest of the separated member
continues to extend over the whole joint property as before.
Such a transaction
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does not purport or operate to do any of the things referred
to in that section. Hence, in so far as the documents
referred to above are evidence of partition only in the
former sense, they are not compulsorily registrable under s.
17, and would, therefore, not come within the mischief of s.
49 which prohibits the reception into evidence of any
document " affecting immoveable property ". It must,
therefore, be held that those documents have rightly been
received in evidence for that limited purpose.
Lastly, it was contended that if those documents of the
year 1892 are admissible to prove separation amongst the
three brothers, then, oil the death of one of the three,
namely, Rama, and of their mother, the entire ancestral
properties including the mortgaged properties, vested in the
two brothers in equal shares. Both by the auction-purchase
of the year 1906 (D-57-D) and the sale deed (exhibit D-54 of
the year 1909), Sadashiv’s moiety share in the mortgaged
property, was purchased by Fulchand aforesaid. The
plaintiff, therefore, could only claim the other moiety
share of her father, Gundi. In our opinion, there is no
answer to this contention because it is clear upon a proper
construction of the three mortgage-bonds and on the
plaintiff’s own case that the entire ancestral properties
and not only Gundi’s share, had been mortgaged. The appeal
will, therefore, be allowed to the extent of the half share
rightly belonging to Sadashiv, and the decree for possession
after redemption will be confined to the other half
belonging to the plaintiff’s father.
In the result, the appeal is allowed to the extent indicated
above. As success between the parties, has been divided,
they are directed to bear their own costs throughout.
Appeal allowed in part.
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