C.S. Kumaraswami Gounder vs Aravagiri Gounder and Another

Ismail, J.—The plaintiff in O. S. No. 59 of 1962 on the file of the court of the Subordinate Judge of Erode is the appellant herein. The

appellant and one Nallaswami Gounder were brothers, being the sons of one Sengoda Gounder. Between the appellant and Nallasami Gounder

there was a partition of all the joint family properties on 24-11-1924 under a document market as Ex. B-1 in these p2roceedings. The document

recited that with the help of mediators the properties of the joint family were divided as between them, that each of them took possession of the

respective shares allotted to them and that from that day on wards one party had no right whatever to trespass into the property of the other. The

properties themselves are divided into and described as to schedules, one schedule being allotted to each brother. There was one provision

contained in the document, namely, that, if any of the parties went back on the partition arrangement, he would have to pay a sum of Rs. 5,000/- to

the other. In 1932, Nallasami Gounder died and the first defendant in the suit is the only son Nallasami Gounder. The second defendant in the suit

is a subsequent alienee of survey No. 122/B, which is Item No. 2 in the schedule to the plaint. The present suit was instituted for partition of the

properties that originally belonged to the appellant and the deceased Nallasami gounder. The case of the appellant as set out in the plaint was that

the partition entered into between the parties on 24-11-1924 was not intended to be a final partition between the parties and that the agreement

had always been treated as a matter of convenience subject to alteration between them. He also put forward the contention that a power had been

reserved to ask for a repartition of the properties and that that itself was evidence of the fact that no final partition had been effected on 24-11-

1924. He further contended that the parties themselves treated the properties as if they had not been finally partitioned, and, in support of that

contention, relied on an order of the Subordinate Judge, Coimbatore, in C. C. 434 of 1953 (O. P. 524 of 1953), relating to a claim to

compensation in respect of acquisition of certain lands.

As against this the first defendant filed a written statement putting forward the contention that the partition dated 24-11-1924 was a full and

complete partition and that therefore the appellant had no right to go back upon the same. He also put forward an alternative contention that, in any

event, he had acquired title to the properties allotted to the share of Nallasami Gounder under Ex. B-1, by adverse possession. With regard to the

claim put forward by the appellant, that the order of the Subordinate Judge of Coimbatore in C. C. 434 of 1953 had decided that the appellant

also had a share in the compensation amount, he contended that the said decision was not rendered on merits and to which he himself was not a

party and that therefore it was not binding on him.

The second defendant filed a separate written statement putting forward a similar contention, namely, that the partition dated 24-11-1924, was

a complete and final partition, that pursuant to the partition the parties had taken possession of the respective items of properties allotted to them,

that they had been in complete and absolute enjoyment of those properties, and that S. No. 122/B was dealt with by Nallasami Gounder pursuant

to the partition, which had ultimately come to the second defendant after a series of alienations.

It is on these pleadings that the trial court framed the following issues;

Whether the deed dated 24-11-1924 mentioned in paragraph 3 of the plaint was never intended to be a final partition between the brothers?

In any event, whether the partition dated 24-11-1924 has been acted upon, and, if so, whether the plaintiff is estopped from going back upon

it?

Whether the plaintiff is entitled to the partition and separate possession prayed for?

Whether the plaintiff is entitled to 7/12 share of item 2?

Whether the decision in C. C. 434 of 1953 on the file of the Sub-Court, Coimbatore, is valid and binding upon the defendants?

Whether the first defendant has perfected title of the properties allotted to his father under the partition arrangement dated 24-11-1924, for the

reasons stated in the written statement of the 1st defendant?

To what relief are the parties entitled?

The learned Subordinate Judge, after considering the materials placed before him, came to the conclusion that the partition dated 24-11-1924

was intended to be a final partition between the brothers. On issue No. 2, his conclusion was that the said partition had been acted upon and that

the plaintiff was not entitled to go back upon the same. In view of his findings on issues Nos. 1 and 2, the learned Subordinate Judge held that the

appellant was not entitled to partition and separate possession as prayed for. On issue No. 4, he held that the second defendant had title to item

No. 2, and that, in any event, he had perfected title to the same by adverse possession. On Issue No. 5, his conclusion was that the order of the

learned Subordinate Judge in C. C. 434 of 1953, not being one on merits did not bind the defendants in the suit. On issue No. 6 his conclusion

was that the first defendant had perfected title to the properties allotted to the share of his father at the partition dated 24-11-1924 by adverse

possession. In view of these findings the suit instituted by the appellant was dismissed on 19-11-1965. It is against this judgment and decree the

present appeal has been preferred by the plaintiff in the suit.

Mr. K. Parasaran, the learned counsel fort the appellant, addressed only one argument before this court. His argument is this, Ex. B-1 was not

admittedly registered, though it required registration u/s 17(i)(b) of the Registration Act (XVI of 1908). For want of registration that document was

not admissible in evidence u/s 49 of the Registration Act and therefore the appellant was entitled to a decree for partition. With regard to the claim

of adverse possession put forward by the first defendant, the contention of Mr. Parasaran is that the parties being co-owners, mere adverse

possession is not enough and that the first defendant must prove ouster which he has not established in this case. His further contention is that Ex.

B-1 cannot be admitted in evidence even for the collateral purpose of finding out the character of the possession of the properties allotted to the

shares of Nallasami Gounder, under Ex. B-1 in the hands of Nallasami Gounder and after his death in the hands of the first defendant.

We are clearly of the opinion that there is no substance in any of these contentions. Before we got to Section 49 of the Registration Act, it is

necessary to refer to certain circumstances and facts emerging from the evidence. As far as the case of the appellant is concerned, even though he

purported to put forward the case that were was no final partition on 24-11-1924, the very halting and prevaricating stand taken by him in the

plaint itself clearly shows that there was a final partition on 24-11-1924. In paragraph 3 of the plaint the states-

On 24-11-1924, the plaintiff and his brother, the aforesaid Nallasami Gounder, entered into a sort of written partition agreement.

In the same paragraph he stated-

As a matter of fact, the agreement has always been treated as a matter of convenience subject to alteration, at any time, as and when the parties

felt the need for it.

In paragraph 4 this is what he states-

After the advent of the Lower Bhavani Canal most of the properties that fell to the share of the said Nallasami Gounder have been included in the

ayacut. Though at the time of the aforesaid agreement the division for the sake of convenience was fair and equitable, after the advent of the lower

Bhavani Canal the conditions have changed to such an extent that the division is no longer fair and equitable.

These allegations in the plaint cannot be understood except on the basis that there was a final partition between the parties on 24-11-1924 and that

certain items of properties fell to the share of the deceased Nallasami Gounder. The position is made clear by the allegations contained in

paragraph 5 as well. In that paragraph the plaintiff states-

The aforesaid Nallasami Gounder, brother of the plaintiff, died in or about 1932. The first defendant, who is the only heir and legal representative

of the deceased, succeeded his father, and is in possession and enjoyment of his share."" This again emphasises the finality of the partition

arrangement made on 24-11-1924. If that had not been so, it is not possible to comprehend how the properties could have fallen to the ''share'' of

Nallasami Gounder and how the first defendant succeeded to the ''share'' of Nallasami Gounder and was a possession of the several items of the

properties. Having regard to this strange stand of the appellant, there can be no doubt whatever that there was a final partition between the

appellant and the deceased Nallasami Gounder on 24-11-1924. The subsequent conduct of the parties also emphasises this fact. As pointed out

already, Nallasami Gounder died in 1932. After his death, Ex. B-4, dated 3-4-1933, being an agreement, was entered into between the appellant

on the one hand, and the mother of the first defendant, as guardian of the first defendant, on the other. This agreement expressly refers to the earlier

partition of 24-11-1924, and purports to divide the properties left undivided at that partition. We shall have occasion to refer to similar conduct

and admissions of the appellant in another context in the course of this judgment and all that we are interested in pointing out at this stage is that the

conduct of the appellant himself throughout, from 1942 upto the date when he chose to call for a re-partition, was consistent only with the position

that there was final partition in 1924 under Ex. B-1 dated 24-11-1924.

Now let us take the question of law argued by Mr. Parasaran with reference to Sections 17 and 49 of the Registration Act. It is conceded by

both sides that Ex. B-1, being a partition deed, requires registration u/s 17(i)(b) of the Act. The only question for consideration is to what extent

Section 49 of the Act prohibits the reception of Ex. B-1 as evidence, Section 49 is as follows-

No document required by Section 17 of by any provision of the Transfer of Property Act, 1882, to the registered, shall-

(a) affect any immovables comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be

registered may be received as evidence of a contract in a suit for specific performance under Ch. II of the Specific Relief Act, 1877, or as

evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral

transaction not required to be effected by registered instrument.

One thing that may be seen immediately is that Section 49(a) is a substantive law declaring that a document required by Section 17 to be

registered shall not affect any immovable property comprised in the document, if the document is not registered. On the other hand, Section 49(c)

is a provision of law dealing with evidence which states that such an unregistered document cannot be received as evidence of any transaction

affecting such property. A striking feature to be noticed in this context is that the section does not provide for a total prohibition of the reception of

the document as evidence at all. As pointed out by Mullah in his Commentaries on the Registration Act, 8th Edn. at p. 198-

It is important to observe that the section does not say that an unregistered document which requires to be registered shall not be received in

evidence. It says as evidence of any transaction affecting the property. It may be received in evidence for a collateral purpose even if that purpose

does indirectly affect the property.

The condition precedent for the invocation of Section 49--omitting the reference to the Transfer of Property Act--is that it must be a document

which requires registration u/s 17 of the Act. For Section 17 to apply, the document must be one which purports or operates to create, declare,

assign, limit or extinguish any right, title, or interest, of the value of Rs. 100 and upwards, to or in immovable property. Section 49 prohibits the use

of such document, when unregistered, as evidence of the creation, declaration, assignment, limitation or extinguishment of any right, title or interest

of the value of Rs. 100 and upwards to or Immovable property. The section had nothing whatever to do with the reception of such a document as

evidence for any other purpose. This is made abundantly clear not merely by the language of the main part of the section, but also by the language

of the proviso, which has been extracted above. Consequently the irresistible conclusion is that, if a document deals with or refers to more than one

transaction and if the principal transaction happens to be a creation, declaration, assignment, limitation or extinguishment of any right, title or interest

to or in immovable property as contemplated by Section 17(i)(b) of the Act, and if there is also a transaction or purpose collateral to the same, the

document can be certainly used in evidence for the purpose of showing the collateral purpose or transaction with reference thereto. We shall now

illustrate this construction of ours with reference to the case of actual partition.

A partition in a joint Hindu family may denote either of two things: (i) a division in status as between the members of the coparcenary; and (ii)

an actual division of the properties belonging to the joint family by metes and bounds as between the different members of the family. The

expression ''partition'' has been used indiscriminately to denote either one or the other of the two things. Once a partition of the properties by metes

and bounds has taken place, naturally there will be the consequential transaction of the parties, to whom the properties have been allotted

separately, taking possession of these properties. Thus it will be seen that in the case of an express, completed partition there will be three different

stages--(i) the stage of effecting a division in status, (ii) the stage of dividing the properties by metes and bounds, and (iii) the stage of each party

taking possession of the properties allotted to his share. As far as these three stages are concerned, it is conceded, having regard to the decided

cases, that each and every one of them can be effected orally without there being a document. Even if there is a written document in respect of the

first and third stages, then also it is conceded that the document does not require registration, because neither the division in status nor the actual

taking possession the properties can be said to create, declare, assign, limit or extinguish any right, title or interest to or in immovable property.

Therefore, it is only with regard to the second stage, namely, division of properties in different shares and allotment thereof to the various members,

if the same is reduced to writing, it requires registration u/s 17(i)(b) of the Act. Under the Hindu law, it is well settled that, severance in status can

take place either by the unilateral declaration of one of the coparceners or by agreement between all the coparceners. Where severance is effected

as above, it is not a transaction which requires any writing and even if it is effected by means of any instrument in writing, that will not fall within the

scope of Section 17(i)(b) of the Act. Similar will be the position with regard to taking possession of the properties. From the very nature of the

case, once a division of the properties by metes and bounds has taken place as between the members of a coparcenary and the parties take

possession as exclusive owners of the respective items allotted to them, such a partition assumes a division in status having taken place between the

parties. Therefore, though an unregistered partition deed cannot be admitted in evidence to prove the terms of the partition, it can certainly be

admitted in evidence for proving the division in status and the fact of partition, as pointed out by several decisions based on the judgment of the

privy Council in Rajangam Ayyar v. Rajangam Ayyar, (1922) 50 Ind App 134 = AIR 1922 PC 266 . Similarly, taking possession of the shares

allotted to each one of the parties at the partition will be a purpose collateral to the purpose of partition and such taking possession not creating,

declaring, assigning, limiting or extinguishing any right, title or interest to or in immovable property, will not require registration, and therefore an

unregistered deed of partition can be used for the collateral purpose, namely, for proving the nature and character of the possession of the

respective items of properties in the hands of the members of the coparcenary. In Bai Gulabbai Vs. Shri Datgarji Mohangarji, , it was pointed out

that a collateral purpose is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.

Therefore a collateral transaction within the meaning of the proviso to Section 49 of the Act means a transaction other than the transaction affecting

immovable property, but which is in some way connected with it. In Ramlaxmi Ranchhodlal Vs. The Bank of Baroda Ltd., the Bombay High Court

pointed out-

The expression ''collateral'' transaction to a principal transaction or a subsidiary transaction to a main transaction. The root meaning of the word

''collateral'' is running together or running on parallel lines. The transaction as recorded would be a particular or specific transaction. But it would

be possible to read in that transaction what may be called the purpose of the transaction and what may be called a collateral purpose, the fulfilment

of that collateral purpose would bring into existence a collateral transaction, a transaction which may be said to be a part and parcel of the

transaction but nonetheless a transaction which runs together with or on parallel lines with the same.

An obvious illustration of this is the transaction which is recorded in the memo of petition before us. The transaction therein recorded was a

transaction of partition of the movable and immovable properties belonging to the joint family. These properties were allotted to the shares of the

respective members of the family. A partition was in fact effected by this document and that transaction took place under the terms of the

document itself. The memo of partition thus required registration and not being registered could not be admitted in evidence under the terms of

Section 49, Registration Act. There was, however, involved in this transaction itself a collateral transaction, viz., that of the severance of the joint

status which transaction by itself did not require to be registered by any law for the time being in force. A severance of joint status could be

effected under Hindu law in various modes, one of the modes being an unequivocal expression of an intention to separate. A partition could be

effected orally as well as by a written document, and it would be open to a party to prove that there was a partition or severance of joint status

effected between the parties without its being effected by a registered instrument. A partition i.e., severance of joint status thus would be a

collateral transaction, and would certainly fall within the proviso to Section 49 of the Registration Act.

The same view was taken by a Bench of the Patna High Court in Girija Nandan Singh and Others Vs. Girdhari Singh and Others, . That court,

after referring to a number of decisions, pointed out-

The word ''partition'' involves two concepts: (i) change of status, and (ii) division of property. Severance of status does not require to be proved

by any documentary evidence at all, nor is it necessary that for the purpose of proving actual division of property between the members of a joint

family, a written instrument is essential. Where, therefore, there is evidence that there was an actual division of property between the parties, and

that they went into possession of their respective shares in accordance with that division, and there are also circumstances to show that the conduct

of the parties are inconsistent with anything except the factum of separation, a court of law may very well hold, apart from any instrument of

partition, that the parties and separated in status and effected partition of the family properties.

That will be the prima facie construction of Section 49 of the Act.

The above view of ours on partition in a Mitakshara family also derives support from the following observations of the Supreme Court in Nanni

Bai and Others Vs. Gita Bai,

Partition in the Mitakshara sense may be only a severance of the joint status of the members of the coparcenery, 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 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

Section 17(i)(b), the material portion of which has been quoted above. But partition in the former sense of defining the shares only without a

specific allotments of property, has no reference to immovable property. Such a transaction only affect2s the status of the member of the members

who have separated themselves from the rest of coparcenery. The change if status from a joint member of a coparcener 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 Section 17(i)(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 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 u/s 17, and would, therefore,

not come within the mischief of Section 49, which prohibits the reception into evidence of any document, ''affecting immovable property''. It must,

therefore, be held that those documents have rightly been received in evidence for that limited purpose.

We called upon Mr. Parasaran to show any authority of any court taking a contrary view. As a matter of fact, as far as this court is concerned,

there is a direct decision of a Bench of this court in Subbu Naidu and Others Vs. Varadarajulu Naidu and Others, . That case dealt with a koorchit

which the court considered to be a deed of partition, which was not registered. This court, while holding that the document could not be received

in evidence for proving the terms of the deed of partition, held that it could be received in evidence for proving the character of the possession of

the properties in the hands of the respective members of the family. This is what this court pointed out:

Lastly it was contended that the document was admissible to prove the adverse character of the first defendant''s possession of the lands which

were allotted to him under the koorchit, though such allotment was ineffectual for want of registration. This contention must be accepted, as it is

supported by numerous decisions Nadepena Appamma and Others Vs. Saripalli Chinnaveadu (dead) and Others, ; Kandaswami Mudaliar and

Another Vs. Ponnuswami Mudaliar, , purporting to be based on the Privy Council ruling in Varada Pillai v. Jeevaratnammal, ILR (1919) Mad 244

= AIR 1919 PC 44 An attempt was made on behalf of the respondents to show that, on a close examination of the decision of their Lordships it

lends no support to the view expressed in those cases, but, as pointed out by Sir Dinshaw Mullah in his commentaries on the Registration Act, that

view has been accepted by almost all the High Courts in India, and we do not feel disposed to refer the point to a Full Bench, as we were invited

to do, especially as the point is of no more than academic interest on the facts of this case.

Mr. Parasaran contended that none of the decisions referred to in the above passage dealt with a case of partition and that therefore those

decisions could not be said to be authority for the view that an unregistered partition deed was admissible to prove the adverse character of the

possession of one of the parties. Mr. Parasaran also invited our attention to the decision of the Supreme Court in Mst. Kirpal Kaur Vs. Bachan

Singh and Others, , as taking the view that an unregistered partition deed could not be received in evidence for such a purpose. We are unable to

accept this argument of Mr. Parasaran.

Nadepena Appamma and Others Vs. Saripalli Chinnaveadu (dead) and Others, ,dealt with a case of an unregistered mortgage deed. The

following head note itself shows what was decided in that case-

Held that the deed, though unregistered, was admissible in evidence to show the character of the defendants'' possession; that the defendants

could be show to have acquired only a limited interest as mortgagees by adverse possession; that to the prove the extent of the interest acquired by

them by adverse possession, the terms of the mortgage asserted by them may be proved, and such proof cannot be regarded as an attempt to

prove the unregistered mortgage or to adduce secondary evidence of it, and the unregistered deed as well as other evidence was admissible for the

purpose.

Kandaswami Mudaliar and Another Vs. Ponnuswami Mudaliar, dealt with a case of an unregistered sale deed, and a Bench of this court took

the view that such a sale deed could be admitted to show the nature of the possession.

Varada Pillai v. Jeevaratnammal, (1919) 46 Ind App 285 = ILR (1919) Mad 244 = AIR 1919 PC 44 dealt with a case of gift. The question

there was whether there had been a valid gift of immovable property and whether the donee had acquired title by adverse possession. After

referring to certain petitions reciting a gift which had been presented to the Collector praying for the registration of the properties in the name of the

donee, the Judicial Committee held that, as a gift of immovable property as required to be made by a registered deed u/s 123 of the Transfer of

Property Act, the petitions could not be used as evidence of title, but it was permissible for the court to look at them to ascertain the nature or

character of the possession held by the person named in the petitions. The Judicial Committee referred to the question for consideration as follows-

It was not contended before the Board that the above transactions effected a valid gift of the property to Duraisani; for such a gift must, u/s 123 of

the Transfer of Property Act, be made by a registered deed. Nor, having regard to Section 91 of the Evidence Act, can the recitals in the petitions

be used as evidence of a gift having been made. But the defendant''s case is that Duraisani, although she may have acquired no legal title under the

transactions referred to, in fact took possession of the property when it was transferred into her name and retained such possession until her death

in December, 1911, after which date it passed to the defendant as her successor, and accordingly, that the plaintiffs'' claim is barred by upwards of

12 years'' adverse possession. The High Court upheld this contention; and their Lordships, after considering the evidence, have arrived at the same

conclusion.

Finally the Judicial Committee observed-

It should be added that, although the petitions of 1895 and the change of names made in the register in consequence of those petitions are not

admissible to prove a gift, they may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by

Duraisani. In other words, although the petitions and order do not amount to a gift of the land, they lead to the inference that the subsequent receipt

of the rents by Duraisani was a receipt in the character of donee and owner of the land, and therefore, in her own right and not as trustee or

manager for her mother and aunt.

The Judicial Committee itself has not referred to the proviso to Section 49 of the Registration Act. However, the courts in India have construed

the decision of the Judicial Committee as enabling the court to receive an unregistered document as evidence of the nature and character of the

possession in the hands of the person who purported to be the transferee of the interest created or declared under the document. In Mullah''s

Commentaries on the Registration Act, 8th Edn. at page 203, it is stated-

Their Lordships did not refer to Section 49, for the petition being mere recital, did not require registration, but the case shows that a document

inadmissible as evidence of a transaction may be used as evidence for a collateral purpose. An unregistered deed of lease can be used for a

collateral purpose to show the nature of possession. Tenancy agreement may be implied from the conduct. The High Courts of Calcutta, Bombay,

Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon, Delhi and Jammu and Kashmir, the former Chief Court

of Oudh, the Judicial Commissioner''s Court at Peshavar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which

requires registration u/s 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless

admissible to rove the character of the possession of the person who holds under it.

As we pointed out already, Mr. Parasaran invited our attention to the decision of the Supreme Court in Mst. Kirpal Kaur Vs. Bachan Singh

and Others, , and relied on the following passage therein:

In the present case Harnam Kuar had been in possession before the date of the document and to admit it in evidence to show the nature of her

possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as

adverse possession into a permissive possession and, therefore, to give effect to the agreement contained in it which admittedly cannot be done for

want of registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by Section 49

of the Registration Act.

Mr. Parasaran''s argument is that all these decisions dealt with a case where possession was given for the first time and that they did not deal with a

case where the party was already in possession of the property. According to him, an unregistered document cannot be used in evidence for

showing the change in the character of possession, but it could be used only for the purpose of showing the nature of the possession taken by a

party. In support of this contention he refers to the fact that none of these decisions, to which we have already drawn attention, except the decision

in Subbu Naidu and Others Vs. Varadarajulu Naidu and Others, , dealt with a case of partition among the members of a Hindu joint family. From

on point of view, even though the members of a joint Hindu family can be said to be co-owners and in joint possession of each and every one of

the properties of the family, once a partition has taken placed and the properties are divided and each one of the members takes possession of the

particular items of the properties allotted to him, it can be said that he is taking possession of those properties for the first time, because the former

possession was only juridical and constructive, while the later possession becomes physical and exclusive. Apart from this, there is the decision of

the Supreme Court itself holding that the character of possession can change into adverse under an invalid document in the hands of a person who

is already in possession. In Padma Vithoba Chakkayya v. Md. Multani, AIR 1963 SC 70, the Supreme Court pointed out-

Now the contention of Mr. Ranganathan Chetti for the respondent is that he had been in possession of the properties as owner ever since 1923,

when the second defendant sold them to him, that he had thereby acquired a prescriptive title to them and that the right of the appellant to redeem

was thereby extinguished. It is not disputed that, when a person gets into possession on properties, as mortgagee, he cannot by any unilateral act

or declaration of his prescribe for a title by adverse possession against the mortgagor, because in law his possession is that of the mortgagor. But

what is contended is that, if the mortgagor and mortgagee subsequently enter into a transaction under which the mortgagee is to hold the properties

thereafter, not as a mortgagee, but as owner, that would be sufficient to start adverse possession against the mortgagor, if the transaction is for any

reason inoperative under the law. This contention in our opinion, is well founded.

It is significant to note that it is this decision of the Supreme Court which has been relied on by the Editors of Mullah''s Commentaries on the

Registration Act in the extract given already. Apart from this the decision of the Privy Council in ILR (1919) Mad 244 = AIR 1919 PC 44 does

not lend support to any such argument. The extract from the judgment we have given already clearly shows that the document can be looked into

for the purpose of finding out the character in which the person has received rents and enjoyed the properties, namely, as that of donee and owner

of the land. Therefore, we are of the opinion that the decisions above referred to, clearly show that, even though an unregistered deed of partition,

as in the present case, is not admissible in evidence for proving the terms of the partition as well as the items of the properties that were allotted to

the appellant on the one hand and his deceased elder brother on the other, certainly it can be used as evidence for the purpose of showing the

character in which the deceased Nallasami Gounder was in possession of the properties allotted to his share subsequent to Ex. B-1. The evidence

in this case clearly and indisputably establishes that Nallasami Gounder was in possession of the properties in his own right and dealt with the same

as his own.

In view of the overwhelming evidence in this behalf, it is not necessary to refer to the details, and the learned counsel for the appellant did not

contest the position that, once it was held that Ex. B-1 could be looked into for finding out the character of the possession, the evidence clearly

established the adverse possession of Nallasami Gounder in respect of the properties allotted to his share. Therefore, we hold that Ex. B-1 is

admissible for the collateral purpose, namely, to determine the nature and character of the possession and that the other materials on record could

also be taken into consideration for the purpose of coming to a decision that the possession of the properties in question by Nallasami Gounder

was referable to a division of the properties between the parties concerned, and accordingly Nallasami Gounder and the first defendant had

perfected title to the properties by adverse possession.

Independent of the above consideration on the basis of the proviso to Section 49 of the Registration Act, there is a shorter answer to the claim

of the appellant herein. At the time of the death of Nallasami Gounder in 1932, the first defendant was a minor. The appellant himself filed O. P. 14

of 1932 on the file of the District Court, Coimbatore, for appointing a guardian for the first defendant. Ex. B-5 is a certified copy of the petition

filed by the appellant. In paragraph 4 of this petition the appellant stated:

The minor is unmarried and is absolutely entitled to the moveable and Immovable properties set out in the schedule properties set out in the

schedule below, which are approximately of the value of Rs. 17,150. The immovables have fallen to the share of the minor''s father, as per partition

agreement, dated 24-11-1924 between minor''s father and the petitioner.

Thus it will be seen that he appellant himself had acknowledged the exclusive and absolute title of the first defendant to the items of properties

which had been allotted to the deceased Nallasami Gounder under Ex. B-1. Once the appellant himself has admitted the exclusive tittle of the first

defendant to the properties as early as in 1932, certainly it can be held that the first defendant has perfected title to the property in question by

adverse possession. Therefore, looked at from any point of view, we are clearly of the opinion that the appellant is not entitled to a fresh partition

of the properties which originally belonged to the appellant and his deceased elder brother, Nallasami Gounder.

Item 2 of the suit property is one of the items dealt with under Ex. B-1. Once we come to the conclusion that Nallasami Gounder during his

lifetime and thereafter the defendant had perfected title to all the items of properties allotted to the share of Nallasami Gounder by adverse

possession, certainly the second item of the suit property would also stand on the same footing and with reference to that item also the appellant

would have no title. Independently of this, the trial court has considered the claim of adverse possession put forward by the second defendant to

the second item and held that the second defendant has perfected title to the said item of the suit property by adverse possession. We are clearly

of the opinion that this conclusion is also correct. Survey No. 122-B measuring 2.34 acres originally belonged to Kavundappa Goundan and

Chennimalai Goundan. Under Ex. B-8, dated 9-8-1924, Chennimalai Gounden sold his half share to the appellant and the deceased Nallasami

Gounder. This portion is shown as the northern half of S. No. 122/B in Ex. B-1, and was allotted to Nallasami Gounder. Nallasami Gounder and

Kavundappa Gounden thereafter sole the entire survey No. 122-B under Ex. B-9 to Nachimuthu Gounden. The appellant had attested this sale

deed. Under Ex. B-10 dated 19-1-1934, Nachimuthu Gounden sold the property to Chennimalai. Chennimalai Gounden in his turn sold the

property under Ex. B-11 dated 14-7-1937 to the second defendant in the suit. Ex. B-58 is patta No. 876 relating to the said item. There is clear

evidence to show that from 1938 to 1962 it was the second defendant who had been paying kist in respect of this item under Exs. b-59 to B-66.

Consequently, independent of the conclusion that Nallasami Gounder, and after his death the first defendant, had acquired title by adverse

possession to all the items of the properties allotted to the share of Nallasami Gounder under Ex. B-1, there is evidence to show that he second

defendant and his predecessors-in-interest had acquired title to the second item of the suit properties by adverse possession.

Under these circumstances, no ground whatever has been made out for interference with the decree passed by the trial court. Accordingly the

appeal fails and is dismissed with costs--(two sets).

Appeal dismissed.