Smt. Zaveri vs Jitu

Shah, C.J.—This appeal arises from a suit brought by the Appellant for a partition and separate possession of her one-half share in the plaint

property which comprises of sets of rooms, an open court yard and wells etc., situated at Joravarnagar, and which was jointly purchased by the

parties at a Court sale on 1-6-1950. The defence Was that the property had been already divided by a deed of partition dated 25-6-1950 and

had ceased to be property held in common, that each party was in the separate possession and enjoyment of the portion fallen to its share at the

partition and that the suit was not maintainable unless the said partition was duly set aside by a competent Court. The Defendant further relied on

the doctrine of part performance as a defence to the suit.

The trial Judge held that the deed of partition being unregistered was not admissible in evidence and its terms could not be proved, but the fact

of the partition could be proved by other evidence and that as the other evidence did establish that fact, the suit for a second partition did not lie.

The Plaintiff''s contention in the lower Court was that the alleged partition was merely an arrangement for a division of the rent of the property but

this contention was rejected by the lower Court. On the question of the applicability of the doctrine of part performance the learned Judge''s finding

is not very clear probably the question was not seriously argued before him and he merely held that the Defendant had taken possession her share

in accordance with the terms of the partition and had been recovering rents and was willing to abide by its terms. As a result of these findings the

learned Judge dismissed the suit with costs. The Plaintiff has appealed.

It is conceded for the Respondent that the deed of partition was compulsorily registrable u/s 17, Indian Registration Act, but it is urged that the

fact of the partition can be proved notwithstanding Section 49, Indian Registration Act and Section 91, Indian Evidence Act, and if that fact is

established then the Plaintiff can have no right to maintain a suit for a fresh partition. Now u/s 49, Registration Act no document required by

Section 17 of the Act to be registered shall affect any immovable property comprised therein, or shall be received as evidence of any transaction

affecting such property unless it has been registered. The proviso which follows makes three exceptions, viz., that an unregistered document may

be received as evidence of a contract in a suit for specific performance under Chapter II, Specific Relief Act, or as evidence of part performance

of a contract for the purposes of Section 53A, Transfer of Property Act, or as evidence of any collateral transaction not required to be effected by

a registered instrument.

Section 91, Evidence Act says that when the terms of a contract have been reduced to the form of a document, no evidence shall be given in proof

of the terms of such contract except the document itself or secondary evidence of its contents in cases where secondary evidence is admissible

under the Act. Therefore the only evidence of partition which the Defendant can rely upon is the deed of partition itself and as that document has

not been registered, it is not admissible in evidence, nor is it open to the Defendant to prove the terms of the partition. This position is not demurred

to, but it is contended for the Defendant that the fact of partition is independent of and is collateral to its actual terms and the document is

admissible to show that a partition had been effected between the parties though it was not admissible to prove its terms.

In substance the contention is that the fact of the partition could be proved by the deed of partition and if that is done, no second partition can be

effected and the suit will not lie. This line of reasoning is however erroneous. The parties are tenants-in-common and the only way in which a

partition can be effected between them is by a division of the property by metes and bounds and the Plaintiff''s suit can be defeated only if it is

shown that such a division of- the property by metes and bounds hrs taken place. The only evidence of this division is the partition itself because by

a reference to its terms alone can we ascertain which portion was allotted to each party. Moreover it is the Defendant''s case that she has been the

exclusive owner and in possession of the portion whish was allotted to her under the deed of partition. The partition by metes and bounds, which

has been effected by this, document, and which fact is being pleaded as an answer to the suit, is therefore not a collateral transaction nor a

collateral purpose. Rather it constitutes the very terms of the document and it cannot be proved for want of registration.

This point was considered in - Bal Kishan Vs. Saliq Ram, where an. unregistered partition deed, which was compulsorily registrable, was

sought to be used for the purpose of proving that by the partition between the parties each party was in exclusive possession of the property

allotted. It was held that the document having been executed as a deed of partition it could not be held that the use of it to prove partition was a

collateral purpose. In. ''Mahamma''d Ghouse Sahib v. Jamila Bi AIR. 1950 Mad 433 (B), the parties were Muslims and held properties as co-

sharers. There was a dispute between the heirs of one Kaka Abdul Aziz Sahib and in the suit that was filed for a partition of his property the

parties effected a partition under an unregistered document. The question having arisen how far this document was admissible as evidence, it was

held that the document was compulsorily registrable and not having been so registered it could not affect Immovable property nor could it be used

in evidence.

It was argued, in that case, that the document could be used as evidence of a collateral transaction not required to be effected by a registered

instrument, and that the collateral transaction which was sought to be proved was an agreement embodied in the partition deed. It was held that the

agreement embodied in the partition deed was not a collateral purpose because it was not independent or divisible from the transaction to effect

which tie deed was executed. The decision in - Nalam Ramayya and Others Vs. Nalam Achamma, , was relied upon. The properties in suit in that

case admittedly formed part of the estate of a joint family consisting of three brOrs. and the son of one of the brOrs. . A partition was effected

between them by an unregistered document and the deceased husband of the Plaintiff obtained possession of the properties allotted to his share

and remained in possession thereof till his death. After his death his brOrs. dispossessed the Plaintiff and she therefore sued to recover possession.

The Defendants denied that there had been a partition but the evidence in the case did show that partition had taken place and a document had

been effected.

An earlier decision of the same High Court in Rama Chetty and Others Vs. Panchammal and Another, , where it was held that where a partition,

had taken place under a deed and the deed could not be proved for want of registration, the fact of partition could be proved by other evidence

namely, the conduct of the parties in their dealings with each other and with regard to the specific items of property, was overruled and this was

done principally relying on a decision of Patanjali Sastri J., as he then was, in - ""Veeraraghava Rao v. Gopalarao AIR 1942 Mad 125 (E), that

where a deed of partition is inadmissible by reason of the fact that it has not been registered, a co-sharer who happened to be in sole enjoyment of

a particular property could not sue to eject Anr. co-sharer who has disturbed his possession when he based his title on the partition deed.

It was further held in ''Ramayya''s case, (C)'', that if the partition cannot be proved for want of registration the Court can only regard the property

as still belonging to the joint family. All the same Leach C.J. who delivered the judgment referred to - Vatrapu Subbarao alias Pamireddi

Subbareddi and Others Vs. Pamireddi Mahalakshmamma, , in which it was held that although an unregistered deed of partition was inadmissible in

evidence to prove partition it could be used in evidence not for what it contains but as evidence of a division in status; and the learned Chief Justice

observe that the correctness of that decision had not been Questioned.

On this latter point, namely, the fact of a partition and the division in status thereby the Bombay High Court has held in - ''Chhottalal v. Bai

Mahakore AIR 1917 Bom 206 (G), that the fact of partition may be proved by oral evidence although the deed embodying the terms of partition

cannot be proved for want of registration. In - Narmadabai Tulsiram Shet Agarwal Vs. Rupsing Bhila, , it was held that an unregistered deed of

partition is inadmissible in evidence in view of Sections 17 and 49, Indian Registration Act to prove the terms of the partition; but it is admissible in

evidence to prove the fact of partition in the legal sense of the term. In such a case it is not open to the party to give any oral evidence as regards

the terms of the partition. In - ''Gopinath v. Hangsanath AIR 1950 Gau 129 (I), it was accepted as a proposition that an unregistered deed of

partition was admissible in evidence for the purpose of proving the factum of the partition, but was not admissible for the purpose of proving that a

particular property was allotted to a party as his share.

However it is important to note that in all these cases the property, which was the subject of the partition, was joint family property and there the

division in status was an important element. The parties here are tenants-in-common; there is no joint status between them and no question of the

;fact of a partition as evidencing a division of , status therefore arises. The only partition that can take place between them is by metes and bounds

and if the fact of the partition were allowed to be proved it would mean allowing a partition by metes and bounds to be proved, which, in its turn,

would mean the terms of the partition itself. That is not permitted by Section 91, Evidence Act nor by Section 49, Registration Act. Therefore in

the present case the fact of the partition cannot be proved and if that is so, the property in dispute lias to be treated as property still held in

common by the parties

The other point urged in the appeal is as regards the application of the doctrine of part performance as enacted in Section 53A, Transfer of .

Property Act. Mr. Yajnik''s initial objection to this plea of the Defendant is that a partition: is not a transfer within the meaning of Section 5,

Transfer of Property Act. This question has been: the subject of several decisions by different High Courts in India which show a divergence of

two distinct views, one view being that a partition is not a transfer and the other view holding that it is. The nature of a partition has been

considered in an elaborate judgment by a Division Bench of the Madras High Court in - Gutta Radhakristnayya minor, by mother and guardian

Nagarattamma Vs. Gutta Sarasamma, , where almost the entire case law on the subject has been reviewed. The learned Judge. Subba Rao J.,

who delivered the judgment of the Court, has there quoted with approval the following passage from the judgment of Patanjali Sastri J., (as he then

was) in - Naramsetti Venkatappala Narasimhulu and Others Vs. Naramsetti Someswara Rao and Another, :

The argument proceeds, in'' our opinion, on a misconception of ; the true nature of a partition arrangement under which each co-owner gets a

specific property in lieu of his right in all the joint properties; that is to say, each co- sharer renounces his rights in the other common properties in

consideration of his getting exclusive right to and possession of specific properties in which the other co-owners renounce their rights. It is thus a

renunciation of mutual rights and does not involve any transfer by one co-sharer of his interest in the properties to the Ors. . That is why it has been

held that a partition can be effected orally and without any registered instrument though it may affect immovable properties of the value of one

hundred rupees or more.

and the learned Judge (Subba Rao J) has formulated the divergent views as (1) Partition is a conversion of joint enjoyment into enjoyment in

severalty. The crucial test of a transfer by a person having a right in favour of a person having no right is not satisfied. There is no conveyance but a

transformation of property, an allotment by virtue of his antecedent title as co-sharer. (2) It is a conveyance of a portion of joint right in exchange

for a similar right from his co-sharer. The learned Judge observed:

In our view, the latter view of a partition as a conveyance of a joint right involves an introduction of fiction and is also contrary to the fundamental

conception of partition.

And finally the learned Judge concluded as follows:

partition, therefore is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharers had

an antecedent title and therefore, no conveyance is involved in the process as a conferment of a new title is not necessary.

The learned Judge also pointed out the complications and anomalies that would arise if the doctrine of part performance u/s 53A did not apply to

partition. I agree entirely with the reasoning of the learned Judge and since the subject has been treated so exhaustively, I do not consider it

necessary to go over the same ground again. I may observe that the same view has been taken in - AIR 1950 Gau 129 (I)'', and by Desai j. in -

Mt. Jileba Vs. Mt. Parmesra, . This contention of the Defendant must accordingly be rejected.

In the result therefore we allow the appeal, set aside the decree of the lower Court and pass a preliminary decree for partition declaring that the

Plaintiff and the Defendant have each an equal share in the plaint property, that the same may be divided into two equal shares, and that each party

should be put in separate possession of a share. The trial Court shall appoint a Commissioner for making this partition on appropriate terms. The

Respondent will pay the Appellant''s costs of this Court. Orders as to the costs in the trial Court will be passed by the trial Judge at the end of the

suit. The case is remanded to the trial Court for taking further proceeds tags.

Baxi, J.

I agree.