Judgement

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.

2. 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 Nookaraiu, 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. Raiammas 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 fathers 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.

3. Makireddi Nookaraju, as sole plaintiff, filed O.S. No.19 of 1956 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 plaintiffs 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 (Appannas) wife (D-3) with the result that the latter had to go away and live in her parents 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 lawyers notice (Ex. B-3) dated 10-7-1955.

4. 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 pancha-yatdars 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.

5. The third defendant remained ex parte.

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

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

2. If so, whether the suit as framed is maintainable?

3. Whether the Court-fee paid is sufficient?

4. 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?

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

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

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

8. Whether the plaintiff is entitled to claim any profits?

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

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

11. To what relief?"

7. Plaintiff examined five witnesses in support of his version. Of these, P.W.1 is the plaintiffs 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.

8. 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.

9. 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 plaintiffs right to claim a share in Simhachalams one-third share of item 15 of the plaint A schedule covered by the sale deed (Ex. B-13) has to be 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 of which the plaintiff was member and that, therefore, the first defendant was not liable to account to the plaintiff. As a result of his findings on the various issues, he held issue No.11 against the plaintiff and dismissed the plaintiffs suit with costs. Thereupon, the plaintiff has filed this appeal.

10. Sri G. Balaparameswara Rao, the learned counsel for the appellant, contends that there was no partition in 1949, valid and binding on the plaintiff and that no properties were taken possession of by the plaintiff in any partition such as alleged by defendants 1 and 2. This contention was concerned in issue No.1. Ex. B-5 is 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 mentions that, in respect of immoveable properties, the third defendant would continue as guardian and that, therefore, she executed the said agreement. Ex. B-5 also mentions as follows :

"The share of each individual worth Rs.247-8-0 is received by me. The one fourth share of each of the individuals in these lands is received by me............"

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

11. 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 on behalf of the then minor plaintiff and marked for identification as Ex. B-5, is not admissible in evidence and cannot be looked into for any purpose in this suit for want of non-registration............ As such, except the extent purchased under Ex. B-13, there is no other property to be divided between the plaintiff and defendants 1 and 2, as there was partition in respect of the entire other properties of the family even in the year 1949. It is not shown 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.

12. In Ramayya v. Achamma, ILR (1945) Mad 160 : (AIR 1944 Mad 550) 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 Veera Raghava Rao v. Gopala Rao, 1941-2 Mad LJ 707 : (AIR 1942 Mad 125) and disagreeing with the judgment of Kumaraswamy Sastri J. in Ramu Chetty v. Panchammal, AIR 1926 Mad 402. 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".

13. Later, in Ram Rattan v. Parmanand, 1946-1 Mad LJ 295 at p.296 : (AIR 1946 PC 51 at p.52) 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 Lord ships 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......."

14. Subsequently in Koyatti v. Imbichi Koya, 1946-1 Mad LJ 454 at p. 456 : (AIR 1946 Mad 534 at p. 535) 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 under Section 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 here after in this Court, we may have to consider whether the Full Bench decision in ILR (1945) Mad 160 : 1944-2 Mad LJ 164 : ( AIR 1944 Mad 550) 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 v. Varadarajulu Naidu, 1947-1 Mad LJ 90 at pp.96-97 : (AIR 1948 Mad 26 at p. 31). 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 ILR (1945) Mad 160 : ( AIR 1944 Mad 550) ."

Referring to the observations of Somayya, J. in 1946-1 Mad LJ 454 : (AIR 1946 Mad 534) the learned Judges in 1947-1 Mad LJ 90 : (AIR 1948 Mad 26) stated thus :

"We do not share the learned Judges 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 ILR (1945) Mad 160 : (AIR 1944 Mad 550) has continued to be good law and. in full force and that it stood firm unaffected by the Privy Council decision in 1946-1 Mad LJ 295 : (AIR 1946 PC 51).

15. In Raghavareddi v. Venkata Reddi, 1954 Andh LT 99 at p.101 : ((S) AIR 1955 Andhra 22 at p.23) Subba Rao, C.J. (as he then was) followed the above Full Bench decision in ILR (1945) Mad 160 : (AIR 1944 Mad 550) 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 end 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 ILR (1945) Mad 160 : ( AIR 1944 Mad 550) 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..............."

16. The position in law may be stated thus : S.49 of the Indian Registration Act provides that no document required to be registered under Section 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 under Section 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.

17. 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.

18. We now proceed to deal with the individual items of property :

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

In the result, there shall be a preliminary decree for partition pursuant to the findings reached by us on the various issues. In view of the fact that the plaintiff has succeeded in part, we direct each party to bear his own costs both here and in the court below. Ascertainment of mesne profits will be made in the lower Court on a separate application to be filed by the plaintiff under Order 20 Rule 12 C.P.C.

Appeal allowed in part.