Wanchoo, C.J:— This is an appeal by Tejraj and another against the judgment and decree of the Civil Judge, Merta, by which the suit of the plaintiffs-appellants was dismissed.

2. The case of the plaintiffs as put forward in the plaint was that they and the defendants were descendants of a common ancestor Jethmal. The admitted pedigree of the parties is as follows:

3. The plaintiffs went on to say that Jethmal had four houses, the list of which was attached to the plaint. It was also stated that Sohanlal's widow had ornaments weighing 25 tolas of gold and 200 tolas of silver, and these were with Mohanlal, and the list of them was also attached as appendix 2. It was added that Mohanlal was in possession of other properties of Jethmal, the list of which was given in appendix 3. The case of the plaintiffs was that after the death of Jethmal his sons began to live separately, but the property was not divided, and Mohanlal, who was the eldest, was mostly looking after the property. Various members of the family were in possession of various houses or parts of them.

4. Lately disputes had arisen between the members of the family, and therefore it became necessary to file the suit. The plaintiffs prayed for division of the properties mentioned in the three appendices by metes and bounds.

5. The suit was resisted by the defendants, and their case was that there had been a complete division in the family in St. 1975 after the death of Jethmal, and the brothers took possession of the properties allotted to them, and had been dealing with those properties as their exclusive property ever since. The partition was effected through Farkhatis executed by the brothers, and by the widow of Sohanlal who was also given a share in the property.

6. Consequently the defendants prayed that the suit be dismissed as there was no question of a second partition between the sons and grandsons of Jethmal about the property left by Jethmal. It was added further that Jethmal on his death had left seven houses and a shop and not merely four houses, and all the property movable and immovable had been divided, some during Jethmal's life-time, and the rest after his death.

7. The main issue therefore in the case was whether there had been a partition between the sons of Jethmal, and the widow of Sohanlal in St. 1975 or not. This issue was decided against the plaintiffs. Hence this appeal.

8. The only point, that requires decision in this appeal, is whether there had been a partition between the sons of Jethmal in St. 1975. The burden of proving this was on the defendants, and they relied on the Farkhati of St. 1975 Ex. D-6, and on oral and documentary evidence to show that there had been partition soon after the death of Jethmal, and the sons of Jethmal had been dealing with the properties which came to their shares as their exclusive property.

9. Objection was, however, taken on behalf of the plaintiffs to the admissibility of the Farkhati Ex. D-6 on the ground that it was not registered. The trial Court has rightly held that this document required registration according to the law prevalent in Marwar in St. 1975, and could not therefore be admitted in evidence. The question then arose whether other evidence could be led to prove the fact of partition, in the face of Section 91 of the Evidence Act, and the lower Court held that such evidence could be led, and allowed the defendants to lead other oral and documentary evidence to prove that there had been partition in St. 1975.

10. It has been strenuously contended before us that this view of the lower Court is wrong, and other evidence, both oral and documentary, is inadmissible in view of Section 91 of the Evidence Act.

11. We are of opinion that there is no force in this contention. The relevant provision of S. 91 is as follows:

“When the terms of a contract, or of a grant or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.”

12. This is a case of disposition of property, and not a case of any other matter required by law to be reduced to the form of a document. Section 91 in such a case of disposition of property bars evidence in proof of the terms of the disposition, and no more. The fact of partition itself is not a term of the document. As a matter of fact, the partition precedes the actual distribution of what was formally joint property.

13. It is only after the family has decided to separate and partition the property that they sit down to divide the property by metes and bounds. Section 91 only bars evidence in proof of the terms of the disposition if it is in writing. The fact of disposition is not a term of the disposition, and therefore S. 91 will not bar evidence to prove the fact of partition as distinct from the terms of the partition, namely the manner in which the property was actually divided between the various members of the family.

14. We may in this connection refer to certain cases in support of the view that we have taken. The consensus of opinion seems to be in favour of the view put forward above, though here and there are cases which hold that even the fact of partition cannot be proved in view of Section 91 of the Evidence Act.

15. In — ‘Chhottalal Aditram v. Bai Mahakore’, AIR 1917 Bom 206 (A), the Bombay High Court held that the factum of partition as distinguished from its terms may be proved by evidence apart from the deed of partition itself.

16. In — ‘Narsingh Das v. Uttam Chand’, AIR 1923 Lah 392 (B) the Lahore High Court held that where a partition deed was drawn up but was not registered, S. 91 excluded any evidence other than the inadmissible document of the terms of the disposition of the property; but oral evidence was admissible to prove the fact of separation.

17. In — ‘Mg. Khin v. Mg. Ba’, AIR 1933 Rang 249 (C), the Rangoon High Court held that although the unregistered partition-deed might not be admissible to prove the terms contained therein, still the fact of partition could be proved by oral evidence.

18. In — ‘Ram Rattan v. Parma Nand’, AIR 1946 PC 51 (D) their Lordships of the Privy Council also looked into the other evidence that had been led on the question of partition even though the partition-deed was inadmissible for want of registration, and held on the basis of the other evidence that there had been a partition in the family. It is true that their Lordships did not specifically consider Section 91 of the Evidence Act; but it is obvious that their Lordships would not have looked into the other evidence if their view was that S. 91 barred other evidence of the fact of partition also.

19. In — ‘Girija Nandan Singh v. Girdhari Singh’, AIR 1951 Pat 277 (E), the Patna High Court, after a review of the entire case law, held that the Court could, apart from the instrument of partition, hold, on other evidence, that the parties had separated in status and effected partition of the family properties.

20. In Madras High Court there have been differing decisions on this point. In — ‘Ramu Chetti v. Panchamal’, AIR 1926 Mad 402 (F), 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. But in —‘Ramayya v. Achamma’, AIR 1944 Mad 550 (G) a Full Bench of the Madras High Court did not approve of the decision in the earlier Madras case AIR 1926 Mad 402 (F).

21. Reliance was also placed on — ‘Bal Kishan v. Saliq Ram’, AIR 1946 All 476 (H). That case is, in our opinion, not relevant because it did not consider S. 91. What was decided in that case was that the document, by which a partition was effected, and which was not registered, could not be used under the proviso to Section 49 of the Registration Act to prove the fact of partition, because the fact of partition was not a collateral purpose. That is, however, a different matter altogether.

22. The defendants here do not ask us to look into the document to prove the fact of partition. They are asking us to take other evidence to prove the fact of partition, and that evidence, in our opinion, is not excluded by S. 91.

23. The last case, to which reference may be made, is — ‘Smt. Zaveri v. Jitu’, AIR 1954 Sau 46 (I). in that case it was held that where the parties to an unregistered deed of partition of immovable property were tenants-in-common, the fact of the partition could not be allowed to be proved by other evidence in view of Section 91 of the Evidence Act and Section 49 of the Registration Act. If we may say so with great respect, it does not appear proper to us to use Section 91 of the Evidence Act, and Section 49 of the Registration Act together in order to exclude evidence.

24. Section 49 of the Registration Act makes the document itself inadmissible. It does not exclude other evidence provided that other evidence is admissible without violence to the provisions of the law. It is Section 91 of the Evidence Act, which provides the rule of exclusion by other evidence, and we have to interpret the terms of that section independently of what S. 49 says about the admissibility of the unregistered document itself.

25. Section 91 of the Evidence Act clearly shows that it is only the terms of the document, which cannot be proved by order evidence where the document itself is inadmissible. It does not say that all other evidence is excluded even to prove the fact that there had been a disposition of property.

26. As pointed out by Scott C.J in ‘Chhottalal Aditram Travadi's case (A)’, S. 91 does not go to the length of saying that a certain relationship, which came to exist at the time when a document was executed, cannot also be proved by other evidence. In paragraph 405 of Taylor on Evidence (Edn. 10) it is stated:

“The fact of the existence of a particular relationship may be shown by parol evidence, though the terms which govern such relationship appear to be in writing.”

27. Again in the same paragraph it is stated that the fact of partnership may be proved by parol evidence of the acts of the parties, without producing the deed. Similarly the relationship of landlord and tenant may be proved by oral evidence in spite of the existence of a lease in writing though without the lease one may not be able to say what rent was due (See Augustien v. Challis, (1847) 154 ER 118 (J)).

28. We are, therefore, of the view that the consensus of authority is in favour of the view that other evidence can be led to prove the fact of partition, as opposed to the terms of the partition, even though the deed of partition is unregistered, and therefore inadmissible under the Registration Act. The lower Court was, therefore, in our opinion, right in admitting other evidence to prove the fact of partition.

29. It is a different matter whether in a particular case such evidence of the fact of partition would be of any use without the terms of the partition. That will depend upon the circumstances of each case. Where, for example, the plaintiff says that there was no partition at all, and the defendant says that there was partition, evidence, which would establish partition irrespective of the partition deed, would be enough to throw out a suit for partition a second time.

30. But where, for example, the plaintiff says that there was partial partition and some properties remained undivided, and claims division of these undivided properties, the evidence of the fact of partition may not be sufficient to throw out the suit. It is not unknown that sometimes partial partitions take place. In such a case, if the partition deed is unregistered and inadmissible in evidence, its terms may not be looked into to see whether all the properties had been divided or some remained undivided at the time of partition.

31. In such a case the court may be driven to hold that so far as the particular properties were concerned, there was no proof of their having been actually partitioned.

32. Let us now look at the facts of this case. The plaintiffs' case before us is that though the sons of Jethmal began to live separately after his death there was no partition of the family property, whether movable or immovable. The defendants' case, on the other hand, is that after the death of Jethmal, his sons divided and there was partition of the properties.

33. In such a case, if other evidence is led and is sufficient to prove the fact of partition, the plaintiffs' case must fail based as it is on there being no partition at all.

34. We, therefore, turn to the evidence that has been produced in this case. In the first place, there is oral evidence by the defendants to show that after the death of Jethmal his sons divided. It is not the case of the plaintiffs that the family is still joint. The plaintiffs admit in their plaint that after the death of Jethmal his sons began to live separately.

35. There is thus an admission of severance of status even by the plaintiffs. What the plaintiffs do not admit is that after the severance of status there was actual division of the property by metes and bounds. The fact, however, that the property was also divided by metes and bounds is, in our opinion, amply proved by the oral evidence which has been produced by the defendants including the statements of Mohanlal (deft. 1) and Shankerlal (deft. 4). This oral evidence is further supported by documentary evidence which shows that various members of the family were dealing with different properties as it they exclusively belonged to them. (After discussion of the evidence his Lordship proceeded:—)

36. This oral and documentary evidence, in our opinion, clearly proves that there was division in St. 1975 between the sons of Jethmal, and that at that division the property left by Jethmal, whether movable or immovable, was divided. We must assume this division to be complete vide para. 328(2), Mulla's Hindu Law which lays down that where a partition is admitted or proved the presumption is that all the property was divided; and it is for the person, who alleges that any part of the family property in the exclusive possession of one of the members after the partition is still joint, to prove it to be so.

37. As the plaintiffs' case has been that there has been no division at all, it is not necessary to look into the deed of partition in this case. Leaving out therefore the Farkhati which has been produced for the defendants, we have no hesitation in coming to the conclusion that there was partition in this family after the death of Jethmal in St. 1975, and it is not possible for the plaintiffs to maintain the present suit for another partition when partition had already taken place in St. 1975.

38. It has also been contended on behalf of the defendants that even though the Farkhati Ex. D-6 may not be admissible in evidence to affect the disposition of the property mentioned therein, it is admissible to prove the nature of the defendants' possession over the property which is still in their possession.

39. Reliance in this connection is placed on — Varada Pillai v. Jeevarathnammal’, AIR 1919 PC 44 (K). In that case, certain property came into the possession of the defendants by an alleged deed of gift. This deed of gift was, however, unregistered, and therefore could not be admitted in evidence and affect the property mentioned in it. The defendants or their predecessors were, however, in possession of the property in their own right for over 12 years, and they claimed that at any rate, they had perfected their title by adverse possession.

40. The question arose whether it was possible to look into the unregistered document, which made the gift, to determine the nature of the defendant's possession, namely whether it began as adverse possession in their own right, or was of a different character.

41. Their Lordships of the Privy Council held that although the petitions of 1895, and the change of names made in the registers in consequence of those petitions were not admissible to prove a gift, they might nevertheless be referred to as explaining the nature and character of the possession thenceforth. In other words, although the petitions and order did not amount to a gift of the land, they led to the inference that the subsequent receipt of rents by the alleged donee was a receipt in the character of donee and owner of the land and therefore in her own right and not as a trustee or manager for the donors.

42. This decision was given before the amendment in Section 49 of the Registration Act. Now by the amendment an unregistered document is made admissible for a collateral purpose. Where the possession of a person is more than 12 years old, and he can claim adverse possession by showing that the nature of his possession was exclusive, and there was an ouster, the document can be looked into for determining the nature of the possession as that is only a collateral matter.

43. The contention on behalf of the defendants is that they have been in possession since St. 1975 that is more than 12 years before the suit was filed, and as such the Farkhati Ex. D-6 can be looked into to determine the nature of their possession on the properties which are in their separate possession. We are of opinion that ‘Varada Pillai's case (K)’ clearly entitles a defendant who has been in possession for more than 12 years to use an unregistered document which he cannot use otherwise under S. 49 for the purpose of showing the nature of his possession, and that this purpose must be held to be a collateral purpose.

44. In this view of the matter, we are of opinion that we can look into Ex. D-6 to determine the nature of the defendants' possession on the various properties which are in their possession, and if we do so we can only come to the conclusion that the defendants are in possession of the various properties mentioned in Ex. D-6 in their own right and not as co-parceners in possession on behalf of the other co-parceners.

45. In this view of the matter, as they have been in possession for over 12 years and the document establishes ouster to the knowledge of the plaintiffs, they must be held to have perfected their title by adverse possession over the properties which are in their possession since St. 1975. This is another reason therefore why the suit must fail. We, therefore, dismiss the appeal with costs to the defendants.

K.S.B

46. Appeal dismissed.