Veerappan alias Palaniappan Chetti vs Mylai Udayan

Jackson, J.—This is a suit on a pro-note. The 3rd defendant denied liability on a plea that he was divided from the family. The Small Cause

Judge accepted this plea on the evidence of Ex. I. There is oral evidence to the same effect which he has not discussed. The sole question raised

by petitioner (plaintiff) is whether Ex. I is acceptable in evidence inasmuch as it is a deed of partition affecting immovable property and not

registered.

Counter-petitioner raises the usual argument that Ex, I is a mere memorandum. He cites various rulings, but this is a pure question of fact to be

decided on a perusal of the actual document. Spencer, J., has made the same observation in Ayyakutti Mankondan Vs. Periasawmi Koundan and

Others, . Exhibit I is described as a list of partition resultant upon the award passed by panchayatdars. It contains the share given to 3rd defendant,

mentions three items out of that share made over to Kannusami, is signed by Kannusami and 3rd defendant, and is attested by four witnesses. It is

in my opinion, too formal a document to be described as a mere memorandum. It is a deed of partition declaring an interest in the immovable

property mentioned therein; and as such being unregistered, u/s 49 of the Indian Registration Act, it cannot be received in evidence of any

transaction affecting such property, However, the counter-petitioner argues that it can nevertheless be received in evidence to prove division of

status relying upon Saraswatamrna v. Paddayya AIR 1923 Mad. 297.

In that case the document in question was a deed of partition which was unregistered. The question arose whether a document which operates

to convert a change in the status of the family and effects a division of right was admissible in evidence if unregistered. Ayyakutti Mankondan Vs.

Periasawmi Koundan and Others, and Pothi Naickan, minor by his next friend K.N.P.R. Narayanaswami Naicker Vs. K. Naganna Naicker and

Others, were admitted authority to the contrary. Venkatasubba Rao, J., holds that a document merely creating a separation in status does not itself

create any interest in immovable property and a deed of partition referring to immovable property and not registered may be looked at for

ascertaining if it contains evidence of an intention to divide. It is admissible as proving the conduct of the parties. Spencer, J., holds that such a

document is admissible to prove division of status. He considers that the document if duly registered and used to prove the actual partition would

be one affecting immovable property, but if unregistered and used only to prove division of status it would be one J not affecting immovable

property. This view runs counter to that of Sadasiva Iyer, J. in Ayyakutti Mankondan Vs. Periasawmi Koundan and Others, .

In my opinion, if the document is filed 1 on the strict understanding that it must not evidence any transaction affecting immovable property, its

scope in the majority of cases will be very small. At most I think it will evidence, as observed by Venkatasubba Rao., J., an intention to divide. For

instance, the document now in question is inadmissible from the words ""the entire western portion"" to the end. All that is, admissible is the heading

list of partition as a result of award passed by panchayatdars on 12th August 1918 in favour of Mayileri Udayan, son of etc."" From this no doubt

it may be inferred that there was an intention to divide at this date. For evidence of actual division the rest of the document would be necessary-but

that portion evidences a transaction affecting immovable property and being unregistered is inadmissible. Therefore, the Small Cause Judge is

wrong when he writes ""it is seen from Ex. I that the defendants Nos. 2 and 3 are divided,"" for that is more than Ex. I can prove, He could have

found that Ex. I evidenced an intention to divide, and actual division was proved by defence witnesses Nos. 2 and 3. I do not think, however, that

anything will be gained by sending this case back for a finding on the oral evidence after a lapse of twenty-four months and I decline to interfere.

The petition is dismissed. No costs.