Thadani, C.J:— This is a second appeal from the judgment and decree of the Special Subordinate Judge, A.V.D, dated 17th April 1946, by which he affirmed the judgment and decree of the trial Court which had dismissed the plaintiff's suit with no order as to costs.
2. The plaintiff brought a suit for a declaration of his right, title and interest in the property in suit and for possession. The plaintiff and the defendants are brothers, and until 16th Ashar 1350 B.S, were members of a joint Hindu family. They owned certain ancestral and self acquired movable and immovable properties, which they partitioned on 16th Ashar 1350 B.S, Among the properties involved in the partition was the house in suit, valued at Rs. 120, and it was agreed between the three brothers that on the appellant paying a sum of Rs. 80 to the other two brothers for their ⅔ share, the house would stand allotted to the appellant. The appellant paid Rs. 80 to his brothers, the two defendants, but later when he attempted to dismantle the house and remove the materials, the defendants resisted him, as a result of which he brought the present suit. The defence to the suit was a denial of the averments made by the plaintiff.
3. Upon the pleadings, the trial Court framed the following issues:
1. Whether the house in question was legally allotted to the share of the plaintiff? If not, whether the plaintiff is entitled to get his title declared in respect of the house?
2. What relief, if any, is the plaintiff entitled to?
4. On the first issue, the trial Court held that the partition of all the properties belonging to the three brothers was effected by a partition-deed which was inadmissible in evidence, not having been registered, and accordingly dismissed the plaintiff's suit.
5. The lower appellate Court agreed with this finding and held that the provisions of Section 91 of the Evidence Act were a bar to the reception of oral evidence as to the terms of the partition deed.
6. Mr. Ghose for the plaintiff-appellant has contended that the Courts below were in error in holding that the partition was effected by a deed, that the deed was only a memorandum of partition which had been previously effected between the parties; assuming that partition was effected by a deed and that the deed was required to be registered, nevertheless under the provisions of Section 49 of the Registration Act, it was permissible to use the deed for collateral purposes; in any case, the value of the property allotted to the share of the plaintiff being less than Rs. 100, the document was not required to be registered, the sale having been completed by delivery of possession to the plaintiff in pursuance of the agreement.
7. We are unable to accept any of the contentions raised on behalf of the appellant. The partition deed is in these terms:
“Partition deed, executed by Taranath Sarnia, Hangsanath Sarma and Gopinath Sarma, on 16th Ashar 1350. Wo divide out property, ancestral, self-acquired, movable and immovable, all debts, income, homestead, rupit land and others in equal three shares as detailed in the following paragraphs. We shall have no objection to that hereafter. If any objects, it will not he tenable on the strength of this document. To this effect we execute this deed in sound mind and health:
Division of Movable property.
We divide in equal three shares the bellmetal and brass utensils and other copper utensils.
2. Division of Houses.
The house on the eastern Bide, the cow-shed and gate-house, these three remain with Taranath. The house on the northern bhiti on the western side and the house on the southern side and the thatched roof of the corrugated iron sheet house remain with me Hangsanath. The house on the northern side in the middle portion, the gate house of the southern side and store-house on the western side remain with Gopinath. The C.I sheet house minus the posts is valued at Rs. 190, out of which Rs. 40 having been paid each to Taranath and Hangsanath, the C.I sheet house remain with me Gopinath.
8. It is plain from the terms of the deed that the entire property belonging to the three brothers, and not only the house in dispute, was partitioned. We cannot isolate the house from the remaining property partitioned. The factum of the alleged partition as a whole cannot be gathered from the evidence of the plaintiff and his witnesses who have not said a word in their evidence about the general partition, but confined their evidence to the allotment of the house in dispute. We can find no justification for splitting the contents of the partition deed, isolating the property in suit, thereby encouraging a party to evade the provisions of the Registration Act or the Evidence Act. Moreover, the deed does not say “we have divided our property;” it says “we divide our property,” making their intention clear that they were dividing the property is accordance with the deed itself, and not by any oral agreement. Their intention is further made clear by the words
“If any one objects, it will not be tenable on the strength of this document. To this effect we execute this deed in sound mind and health.”
9. This recital leaves little room for doubt that the parties purported to effect a partition of their properties by this deed a — deed which falls within the purview of Section 49, clause (a) of the Registration Act. It may be conceded that the dead was admissible in evidence for the purpose of proving the factum of partition, but it conduct be used for the purpose of proving that a particular property was allotted to the appellant upon partition as his share. As regards the contention that the proviso to Section 49 of the Registration Act permits an unregistered deed to be used as evidence of part-performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, I do not think S. 53A has any application to a partition. Mr. Ghose argued that taking over of the entire house on payment to the defendants of their ⅔rd share amounts to a transfer within the meaning of Sections 53A and 54 of the Transfer of Property Act. Assuming that S. 53A applies to a partition, the allotment of this particular house was part and parcel of the general partition of the properties belonging to the family and this particular arrangement which the three brothers arrived at between themselves, must her regarded as an arrangement to adjust the equities between them, and does not amount to a transfer of the property. For instance, so far as the other properties are concerned, they were not allotted to the respective parties for any consideration, but as a result of the partition. We cannot, therefore, isolate the house in question from the general scheme of partition and regard it as a transfer within the meaning of Section 53-A or Section 54 of the Transfer of Property Act.
10. Mr. Ghose relied upon a decision of the Madras High Court reported in Ahobilackariar v. Tulsiammal, A.I.R (14) 1927 Mad. 830 : (103 I.C 281), but the facts of that case are entirely different from the facts before us. In the case before us, the alleged partition took place some time in 1944, and shortly after wards the plaintiff brought the present suit in 1944. There is nothing on the paper book before us to satisfy us that the plaintiff, in pursuance of the partition was in possession of this house. On the contrary, it appears that soon after the alleged partition his two brothers resisted his attempt at taking, possession. In the Madras case, possession of the property, upon partition, extended over a number Page: 131of years, and that fact may have influenced the learned Judge to apply by implication the terms of Section 53-A of the Transfer of Property Act. It is to be observed that S. 53-A was not referred to express terms by the learned Judge of the Madras High Court.
11. In the Madras case, apparently Ramesion, J. was influenced by the fact that the division in status bad lasted from 1910 to 1918 and that the brothers lived as divided brothers. In this case, as we have observed, the alleged partition took place in 1944 and shortly after, wards a suit was brought in 1944. It is, therefore, not possible to say, on the facts of this case, that the plaintiff was in possession of the house in dispute in pursuance of the partition. Assuming in this case that the plaintiff was already in possession, and that he continued in possession in part-performance of the contract, the question arises whether he did some act in furtherance of the contract. The act relied upon by Me. Ghose is the payment of Rs. 80 to the two brothers. But the payment of Rs. 80 was the consideration for the contract, and cannot unequivocally be regarded as an act in furtherance of the contract. An act which can be regarded as having been done in furtherance of the contract must consist of something more than mere payment of the consideration. We have, therefore, come to the conclusion that the plaintiff has failed to bring his case within the purview of Section 63-A of the Transfer of Property Act.
12. The result is that the appeal is dismissed with costs.
Ram Labhaya, J.:— I agree in the conclusion reached by my Lord the Chief Justice. I wish, however, to add a few remarks of my own.
13. I agree with the view that the document in question was a deed of partition by which the property was actually partitioned. It was not a memorandum of any fact which had already been accomplished. It was, therefore, within the mischief of Section 17 of the Registration Act, and, therefore, inadmissible in evidence for showing that a particular portion or part of the property was allotted to a particular party. It could be used only for showing divided status.
14. I am also inclined to agree that Section 53-A of the Transfer of Property Act has no application to partitions. The section covers all transfers for consideration. A partition does not been to be such a transfer as is referred to in that section. Persons between whom a property is partitioned are co-sharers. The ownership of their shares vests in them before partition. They do not acquire that ownership for consideration on partition. It merely effects the mode of enjoyment of the property. Before partition all co-sharers are in joint enjoyment by virtue of being co-sharers. After partition they agree to enjoy their shares separately. The change in the manner of the enjoyment of the property should not amount to a transfer.
15. Mr. Ghose has relied on Ahobelachariar v. Tulsiammal, A.I.R (14) 1927 Mad. 830 : (103 I.C 281), for showing that the equitable doctrine of part performance can apply to partitions. This case was decided before S. 53A was enacted. It is no authority for the proposition that partitions are covered by the language of the section, the case having been decided at a time when the section did not exist. The doctrine itself could have applied then even to partitions as S. 53A was not there to regulate its application. There is no justification left now or the application of that rule of equity to partitions. This, however, is a question which need not be decided in this case as even assuming that S. 53A applies to partitions it cannot be relied on by the plaintiff as he himself is suing for possession of the properly. The section can be relied on only by a transferee in possession. Even if plaintiff is treated as a transferee, he not being in possession of the property, the section does not come into play at all. To attract the application of the section it is necessary that the transferee should have taken possession of the property or any part thereof or the transferee being already in possession should have continued in possession in part performance of the contract. If this requirement is not satisfied, it is not necessary to consider whether some other act has been done in furtherance of the contract. Payment of consideration for a transfer of immovable property where transferee has in part performance of the contract taken possession of the property or part thereof where he being already in possession continues to remain in possession in part performance of the contract can be an act done in furtherance of the contract. I regret I am unable to agree to the proposition that even where a transferee is in possession of the property in part performance of the contract, the payment of the consideration cannot be regarded as an act in furtherance of the contract. I do not find any warrant for that proposition in the language of the statute, nor has any authority been cited in its support. If possession of the property has not passed, mere payment of consideration may not be regarded as an act in furtherance of the contract as such an act may be equivocal. But where transferee has taken possession the only act that he may be in a position to perform in many cases would be the payment of consideration. In fact, in another case, No. S.A 1734 of 1944 I have taken the view that the tender of consideration by a transferee in possession not accepted by the transferor was an act in furtherance of the contract Page: 132within the meaning of S. 53A. This view, however, does not affect the result of the case. The transferee is not in possession. He is suing for it. He cannot, therefore, avail of the provisions contained in S. 53A. The appeal, therefore, must be dismissed.
16. Appeal dismissal.