1. The main question for consideration is whether Ex.-A is admissible in evidence for any purpose. The lower Courts have construed it as a partition deed, and although in the document the past tense is employed, that is, “as we have effected a division” and “for our having thus divided”, it is undoubtedly an instrument of partition whereby the parties divide their property. If the partition was effected by this deed and not prior to the deed, the deed must be registered under Section 17 of the Registration Act and under Section 49 of the Registration Act the document shall not affect any immovable property comprised therein, nor be received as evidence of any transaction affecting such property. The lower Courts, while holding that the document is one that Should be registered under S. 17, have admitted it as evidence of the status of division. If however, the division was not effected prior to execution of Ex.-A, by an unequivocal declaration, then we think that the document is altogether inadmissible in evidence, for the mere status of division in a Hindu family undoubtedly affects the family property, for on division the unascertained share of a divided member devolves in a different manner to the share of an undivided member. If, therefore, the deed be admitted as evidence of the status of division, it will at the same time be evidence of the transaction between the two brothers which brought about the division in status, ss well as the partition by metes and bounds. This was the view taken by Sadasiva Aiyar, J., in Pothi Naicken v. Nagama Naioker(1) and although the other two, Judges of the Bench express no opinion directly on this point, we are not inclined to take different view. That view however applied to the circumstances of that case and in that case, there was no suggestion of any division in status other than that effected by the partition deed. In the present case, however, plaintiff alleges a division before Ex.-A. The lower Courts have both found that there was no such division before Ex.-A, but as we read the judgments, we think it is quite clear, that they refer merely to a division by metes and bounds and have not considered the question of whether a status of division was uot effected by the unequivocal declaration of one of the brothers.
2. It has now been finally decided that an unequivocal declaration by one member of an undivided family of his intention to be divided in status is sufficient to effect a partition, although division by metes and bounds may be deferred [vide Suraj Narayan v. Iqbal Narain(2) and Girja Bai v. Sadasiv Dhundiraj(3)]. This view of the case has not been considered by the lower Courts, and although the District Munsif has believed the evidence that Parsa Nainar sought for partition, which was agreed to by his brother Jaya Rao, that some properties were set apart for Parsa's marriage expenses and that the brothers messed separately, he has not considered the effect of this evidence as evidence of a division in status as distinct from a division by metes and bounds and has not determined the question of whether there was a prior division in status.
3. The District Judge merely agrees with the District Munsif's finding. As evidence of an unilateral declaration of division in status Ex.-A would be admissible, if such declaration had taken place prior to the division by metes and bounds, for it would be that unilateral declaration and not the division by metes and bounds which affected, the property and altered its nature and it could not be called a “transaction”, for to a transaction there must necessarily be at least two parties. We do not, therefore, think that Ex.-A would be inadmissible in evidence under Section 49 of the Registration Act, in so far as it goes to evidence a prior unilateral declaration of division. In this view, we remand the case for a revised finding on issues 1 and 1-(a) in the light of the above remarks. The finding should be submitted within six weeks, and seven days will be allowed for filing objections.
4. (In compliance with the order contained in the above judgment, the District Judge of North Acort submitted the following.)
FINDING
5. I am requested to submit a fresh finding upon issues (1) and 1-(a) which read as follows: (1) Whether the late Appavu Nainar and his brother were not divided and the partition was not acted upon as alleged by defendant 1?
1-(a) Whether the division alleged is true?
3. It is argued for the defendants that an intention to be divided in status must be proved by cogent and clear evidence, and it must be admitted that both sides have played false to a considerable extent. I consider, however, that there is sufficient ground for holding that Parsa Nainar had declared his intention prior to the execution of Ex.-A, and that he was therefore, divided in status. This is my finding upon the issues referred to me.
6. (This second appeal coming on final hearing after the return of finding of the lower appellate Court upon the issues referred by this Court for trial, the Court delivered the following.)
JUDGMENT
7. We accept the finding and dismiss the second appeal with costs.
S.N/R.K
8. Appeal dismissed.