Makireddi Nookaraju vs Makireddi Ramamurthi and Others

Anantanarayana Ayyar, J.—This is an appeal against the judgment and decree of the Subordinate Judge, Visakhapatnam in O. S. No. 19 of 1956 on his file.

One Makireddi Venkanna had two sons. The younger son is the first defendant. The elder son was one Appanna who was the husband of the third defendant by whom he begot his only son Makireddi Nookaraju, the plaintiff. Venkanna also had two daughters namely, Narayanamma (D. W. 1) and Rajamma. Rajamma had a daughter Simhachalam by her first husband. Simhachalam is the wife of the first defendant. Rajamma''s second husband is Pothuraju (D. W. 2). Rajamma is now dead. The other daughter, Narayanamma (D. W. 1) became a widow when she was very young in about 1937 and from then she was living in her father''s village. Her father, Venkanna purchased for her the land, which is item 11 of the plaint A schedule through Ex. B-9 dated 22-9-1926. Appanna was a man of sub-normal intelligence and he died in about 1947. Venkanna died a few months thereafter.

Makireddi Nookaraju, as sole plaintiff, filed O. S. No. 19 of 1958 for partition of the properties of plaint A and B Schedule into two equal shares and for possession of one such share, for taking of accounts in respect of A schedule lands till delivery of possession and for fixing maintenance of the third defendant. The second defendant is the undivided minor son of the first defendant. The third defendant is the plaintiff''s mother. Plaintiff contended in his plaint that himself and the defendants were members of a joint family. The first defendant was the manager of the joint family. As Appanna was not a worldly-wise man, the other members of the family ill-treated his (Appanna''s) wife (D-3) with the result that the latter had to go away and live in her parent''s house since two years prior to the death of Appanna. After the death of Appanna and Venkanna, the third defendant demanded partition on behalf of the plaintiff. But, the first defendant said that he would partition only after the plaintiff attained majority. Then there was a panchayat as regards maintenance of the third defendant, as a result of which a temporary arrangement was made by giving her one acre of land as maintenance in addition to giving a room in the house for her residence. After attaining majority, the plaintiff came to know that the first defendant had secreted the income from the properties with a view to defraud him. Plaintiff issued a lawyer''s notice (Ex. B-3) dated 10-7-1955.

Defendants 1 and 2 contested the suit by filing a written statement to the following effect: In 1949, the third defendant demanded a partition on behalf of the plaintiff, who was then a minor. P. W. 4, who is the brother of the third defendant, convened a panchayat. The panchayatdars made a decision and accordingly the plaintiff was given half share in all the joint family properties and his mother, who represented him as his guardian in the course of partition, took possession of his half share. He was also given a cart and a pair of bulls and a sum of Rs. 247-8-0 towards his half-share in the moveables. The third defendant executed an agreement (Ex. B-5) dated 11-5-1949 on behalf of the plaintiff in favour of the first defendant, admitting all these facts. The plaintiff and his mother has been in possession of and have been cultivating the property constituting his share in items 1 to 6, 12, 14, 17 and 18 of the plaint A schedule property. Plaintiff is not entitled to any share in any of the other items of the property or to ask for account. The suit is liable to be dismissed. Regarding each of the other items of property other than items 10 and items 1 to 6, 12, 14, 17 and 18, defendants 1 and 2 made specific pleadings. These pleas will be referred to when considering the individual items of property later in this judgment.

The third defendant remained ex parte.

On the pleadings, the learned Subordinate Judge framed eleven issues. They are as follows:

Whether the joint family properties were divided in 1949 by the panchayatdars and whether the plaintiff''s mother took delivery of plaintiff''s share as per the terms of the agreement dated 11-5-1949 and whether it is valid and binding on the plaintiff ?

If so, whether the suit as framed is maintainable?

Whether the Court-fee paid is sufficient?

Whether items 7, 8, 9, 11, 13, 15 and 16 of the A schedule are joint family properties in which the plaintiff has a share?

Whether portions of items 13 and 16 are self-acquisitions of the first defendant?

Whether the B schedule items are correct? If so, what are their value?

Whether the suit is bad for non-joinder of parties in possession?

Whether the plaintiff is entitled to claim any profits?

Whether the third defendant is entitled to claim maintenance from defendants?

Whether the first defendant is not the manager of the joint family and not liable to render account?

To what relief?

Plaintiff examined five witnesses in support of his version. Of these, P. W. 1 is the plaintiff''s mother namely, the third defendant. P. W. 2 is the plaintiff himself. P. W. 4 is the brother of the third defendant, who has attested the agreement, Ex. B-5. All these witnesses support the case of the plaintiff. Plaintiff did not adduce any documentary evidence.

Defendant examined six witnesses. Of these D. W. 3 is the first defendant himself. D. Ws. 5 and 6 are persons, who deposed to have taken part in effecting the settlement under which the properties were divided in partition. D. W. 5 is the Village Munsif of Neelammapeta and stated with reference to several village accounts, that from the time of the partition, the third defendant representing the plaintiff, and subsequently the plaintiff himself, after he attained majority, was in possession of the property which he got in the partition of 1949. The other witnesses also supported the case of the first and second defendants. Defendants marked Exs. B-1 to B-37 in support of their case.

The learned Subordinate Judge found on Issue No. 1 that there was a partition and that it was valid and binding on the defendants except regarding item 15 of the plaint A schedule. On issue No. 2, he held that the suit as framed was not maintainable. On Issue No. 3, he found that the Court-fee paid was insufficient. On Issue No. 4 he held that items, 7, 8, 9, 11, 13 and 16 of the plaint A schedule were not joint family properties available for partition and that the plaintiff''s right to claim a share in Simhachalam''s one-third share of item 15 of the plaint A schedule covered by the sale deed (Ex. B-13) has to he decided in a separate suit. He answered issue No. 5 in the affirmative. On issue No. 6, he held that the plaintiff was not entitled to any share in the plaint B schedule moveables. On issue No. 7, he held that the suit was bad for non-joinder of D. Ws. 1, 2 and 6. He found issue No. 8 against the plaintiff. On issue No. 9, he found that the third defendant could not seek to claim maintenance in this suit as there was no joint family as such. On issue No. 10, he found that after the partition in 1949, the first defendant was not manager of any joint family which the plaintiff was member and that, therefore first defendant was not liable to account to the pl As a result of his findings on the various issues. Issue by No. 11 against the plaintiff and dismissed plaintiffs the suit with costs. Thereupon, the plaintiff ed this appeal.

Sri G. Balaparameswara Rao, the learned counsel for the appellant, contends that there was notification in 1949, valid and binding on the plaintiff and no properties were taken possession of by the place in any partition such as alleged by defendants 1 and his contention was concerned in issue No. 1. Ex. B a document, which was styled as an agreement executed by the third defendant in favour of the first defendant. It is signed by the first defendant also. It mention that, in respect of immoveable properties, the third defendant would continue as guardian and that, therefore executed the said agreement. Ex. B-5 also mentions follows:

The share of each individual worth Rs. 47-8-0 is received by me. The one fourth share of each the individuals in these lands is received by me....

The learned Subordinate Judge considered objection raised on behalf of the defendants as to the missibility of this document. He held, with reference t s salient features that it contained characteristics of partition-deed, that it was not sufficiently stamped was not registered and as such it was inadmissible evidence. After considering the relevant aspects, we ag with the learned Subordinate Judge that Ex. B-5 is a d of partition and that it is inadmissible in evidence view of its being insufficiently stamped and unregistered.

As regards the effect of this document (Ex. B-5), the learned Subordinate Judge observed as follows:

.... Unfortunately, for the first defendant the agreement entered into between him and P. W. 1 behalf of the then minor plaintiff and marked for identification as Ex. B-5, is not admissible in evidence and can be looked into for any purpose in this suit for want of on registration ....... As such, except the exte purchased under Ex. B-13, there is no other property to be divided between the plaintiff and defendants 1 and 2, there was partition in respect of the entire other properties of the family even in the year 1949. It is not show how that partition is not valid and binding on the plaintiff As such, I answer this issue (No. 1) in favour of the defendants as indicated above.

Thus, the learned Subordinate Judge has held that Ex. B-5 was a document of partition and was inadmissible in evidence but, all the same, he found that the partition of 1949 was proved and that it was valid and binding on the plaintiff.

In Nalam Ramayya and Others Vs. Nalam Achamma, a Full Bench of the Madras High Court has held that where a deed of partition is inadmissible in evidence for want of registration, the partition cannot be proved by evidence apart from the deed. The learned judges came to this conclusion after considering the various previous decisions and by agreeing with the decision of Patanjali Sastri J. (as he then was), in Vedangi Veera Raghava Rao Vs. Vedangi Gopalarao, and disagreeing with the judgment of Kumaraswamy Sastri J. in Rama Chetty and Others Vs. Panchammal and Another, The learned Judges also observed as follows:

If it were a question of proving an oral agreement entered into after that embodied in the unregistered document, evidence of subsequent conduct could, of course, be led in proof of the subsequent oral agreement, but not with regard to the earlier one. In the present case, a division by metes and bounds took place before the execution of the partition deed.

As the property in suit admittedly had belonged to the joint family, the change in its character must be proved. As the agreement for partition cannot be proved, the Court can only regard the property as still belonging to the joint family.

Later, in AIR 1946 51 (Privy Council) in a suit by one Hindu brother against another for partition it was pleaded in defence that there had already been a partition and two unstamped memoranda showing the details as to the division arrived at were relied upon to corroborate the oral evidence as to prior partition. It was held that the memoranda should be excluded from consideration. Their Lordships also observed as follows (at page 296) : (of Mad LJ): (at p. 52 of AIR) :

It is unnecessary to consider the effect of this Section (S. 49) because the documents in question not being stamped, the wider prohibition contained in the Stamp Act applies, and the learned Judge rightly excluded the documents. In the absence of written evidence of partition the learned Judge considered the oral evidence called by the respondent to support a partition in February, 1939 was unsatisfactory .............

Subsequently in Ittoli Moidin Koya''s son Koyatti and Others Vs. Imbichi Koya and Others, Somayya, J. observed as follows :

The Judicial Committee did not refer to the difficulty of admitting other evidence when the transaction was admittedly reduced to writing and that writing was inadmissible either u/s 35 of the Stamp Act or under Sections 17 and 49 of the Registration Act. But there is no doubt that the Judicial Committee had no difficulty in finding a partition on other evidence. But whether other evidence is admissible to prove the details of the partition is still open to doubt. It is not clear whether oral evidence was accepted only in proof of division in status or to prove the details of the partition. When the question directly arises hereafter in this Court, we may have to consider whether the Full Bench decision in Nalam Ramayya and Others Vs. Nalam Achamma, is good law after the decision of the Judicial Committee.

Actually, this question arose and came to be considered by a Division Bench of the Madras High Court In Subbu Naidu and Others Vs. Varadarajulu Naidu and Others, Therein, the learned Judges observed as follows :

It Is true that a valid partition arrangement can be effected orally, but where the terms of the arrangement have been reduced to the form of a document, Section 91 prohibits the admission of any evidence of the terms except the document itself or secondary evidence of its contents where such evidence is admissible. Where, therefore, the instrument of partition, being unregistered, cannot be admitted as evidence of the transaction, oral evidence to prove the terms of the agreement is barred. This was held by a Full Bench of this Court in Nalam Ramayya and Others Vs. Nalam Achamma,

Referring to the observations of Ittoli Moidin Koya''s son Koyatti and Others Vs. Imbichi Koya and Others, the learned Judges in Subbu Naidu and Others Vs. Varadarajulu Naidu and Others, stated thus :

We do not share the learned Judge''s doubts. We are of opinion that other evidence to prove the details of the partition is inadmissible, and that the reasoning and conclusion of the Full Bench on the point is not affected by the decision of their Lordships.

Thus it was made clear that the Full Bench decision in Nalam Ramayya and Others Vs. Nalam Achamma, has continued to be good law and in full force and that it stood firm unaffected by the Privy Council decision in AIR 1946 51 (Privy Council)

In Kalathooru Raghavareddi Vs. Kalathooru Venkataredii and Others, Subba Rao, C. J. (as he then was) followed the above Full Bench decision in Nalam Ramayya and Others Vs. Nalam Achamma, and held as follows :

When it is common ground that the award (under which partition was effected) was neither registered nor stamped, I do not see how the plaintiffs can get a decree on the basis of an invalid award. It is not a question of admissibility of a document. The non-registration invalidates the transaction altogether. When an invalid document is specifically relied upon by the plaintiff and when it is found in favour of the defendant, the fact that the execution of the invalid document was admitted cannot, by any process of reasoning, validate the invalid document ......... If the award was invalid, the legal position would be, as held by the Full Bench in Nalam Ramayya and Others Vs. Nalam Achamma, that there was no partition at all and the party relying upon an invalid partition should bring a suit for partition on the basis of co-ownership.....

The position in law may be stated thus : S. 49 of the Indian Registration Act provides that no document required to be registered u/s 17 shall affect any immovable property comprised therein or be received in evidence of any transaction affecting such property. A combined reading of Sections 17 and 49 of the Registration Act shows clearly that an unregistered partition deed cannot affect any immovable property comprised therein. Where the terms of a partition arrangement have been reduced to writing in the form of a document, and that writing was inadmissible in evidence, due to its being insufficiently stamped u/s 35 of the Stamp Act in addition to its being unregistered under Sections 17 and 49 of the Registration Act, the effect would be as if there was no valid partition at all and other evidence to prove the terms of the partition or the details thereof is inadmissible and barred. Not being properly stamped and not being registered invalidate the transaction altogether and no question of admissibility of the document will arise. The Court can only regard the property as still belonging to the joint family and the party, relying upon an invalid partition, should bring a suit for a partition on the basis of co-ownership.

In this case, as Ex. B-5 is not admissible in evidence, the partition concerned in it (Ex. B-5) cannot be proved by other evidence. The result, in law, is that there was no valid partition at all and the plaintiff has adopted the right course in filing the present suit for partition. The partition alleged to have taken place was in 1949 and the suit was filed in 1956 i.e., within twelve years. We disagree with the finding of the learned Subordinate Judge on this issue and hold that there was no valid partition in 1949 under Ex. B-5 or otherwise., and that the partition alleged by defendants 1 and 2 is not valid and binding upon the plaintiff. In this view, there is no need to go into the other evidence regarding partition.

proceed to deal with the individual items of property

Their hips then proceeded to deal with the individual item property in the schedule. That portion not being lal for purposes of this report as it does not contain law point, is being omitted -Ed).

In that, there shall be a preliminary decree for partition nt to the findings reached by us on the various issue in view of the fact that the plaintiff has succeeded art, we direct each party to bear his own costs both and in the court below. Ascertainment of mesne is will be made in the lower Court on a separate action to be filed by the plaintiff under Order 2012 C. P. C.