1. Three brothers of the Ittoli family, namely, Moideen Koya, Mamoo and Ahammad were carrying on business in hardware and sundries. They acquired the A schedule property under Ex. P-8, dated nth August, 1917, a sale deed which stands in the names of the three brothers. They acquired also other properties that are set out in schedules B and C. The first item in the B Schedule is the family house and the paramba attached to it. Moideen Koya died in 1926 and his heirs are defendants 2 to 6. Mamoo is the first defendant in the suit. Ahammad died between 1936 and 1939 leaving a widow, the tenth defendant and several children who are defendants 7, 8, 9 and 11. The plaintiff is the Court auction-purchaser in execution of a small cause decree passed in S.C.S. No. 134 of 1936. A third party filed that suit against Ahammad Koya, -obtained a decree and bought the undivided one-third share of Ahammad, the judgment-debtor in the A schedule property. After purchasing the property the plaintiff got symbolical delivery and then filed the present suit on 13th October, 1939, for partition and delivery to him of the one-third share of Ahammad Koya. The contesting defendants are defendants 2,5 and 6, who are the appellants in this Court. Their defence is that in a partition suit filed by them in the Sub-Court of Calicut, O.S. No. 34 of 1935 the whole of A schedule property was allotted to their share. It is said that item 2 of the present B schedule was given to defendants 3 and 4 and that items 1 and 3 of the B schedule were left to be enjoyed as common properties by all the three branches. According to this partition Ahammad's representatives or Mammu, the first defendant, were not given any separate properties in addition to the common right in items 1 and 3 of the B schedule for the reason that they had largely overdrawn from the funds of the partnership or from the other funds of the family. Unfortunately the decree was not drawn up on a non-judicial stamp paper as required by law. The final decree is said to have been passed in the later part of 1937.
2. If there had been a valid decree in force then the plaintiff would get nothing because his purchase would be subject to the rights declared under that decree. That decree having given the whole of A schedule property to the appellants there was no right of Ahammad in the A Schedule property which could be purchased by the Plaintiff and he would have to be non-suited. Unfortunately the Court did not take care to see that the decree was drawn up on non-judicial stamp paper. It is the obvious duty of the Court in passing final decrees for partition to insist upon the parties supplying the necessary stamp paper of proper denomination and to have the final decree drawn up on such non-judicial stamp paper. That was not done. The parties did not realise the consequences of this omission and the result has been very unfortunate from the standpoint of the appellants.
3. Both the lower Courts have declined to admit the compromise decree in evidence on the ground that the document required to be stamped, that it was admittedly not stamped and that Under Section 35 of the Indian Stamp Act, the dooument cannot be adduced in evidence for any purpose whatever. Another objection taken was that being an instrument of partition as defined under the Registration Act the final decree has to be registered. That again was not done. Though it has been repeatedly pointed out that the Courts ought to be careful in drafting the proper decree in such cases, numerous instances have come before this Court in which this duty has been neglected by the lower Courts and that has brought about incalculable harm and injury to the parties concerned.
4. However, we have to deal with facts as they are and here the compromise decree and the compromise have to be rejected as inadmissible in evidence for the reasons stated above. A decision of this Court in Ramayya v. Achamma (1944) 2 M.L.J. 164 : I.L.R. (1945) Mad. 160 (F.B.), held that where a deed of partition is inadmissible for want of registration the parties are not entitled to prove by other evidence the details of the partition in so far as the immoveable properties are concerned. Proof cannot be given that particular items of immoveable property fell to particular sharers. It is argued for the appellants that in so far as this dcision held that even other evidence is not admissible to prove which item fell to which individual sharer, the matter will have to be reconsidered in the light of the decision of the Judicial Committee reported in Ram Rattan v. Paramanand (1946) 1 M.L.J. 295 (P.C.). It is urged that in that case a document which was in effect a partition deed was relied on to prove the details of the partition, that the document was rejected by the Judicial Committee for the reason that it was unstamped and therefore not admissible in evidence for any purpose whatever under Section 35 of the Stamp Act and that having rejected the document their Lordships held that the other evidence proved the partition. Reliance is placed on the following passage in page 198:
Their Lordships therefore pay no regard to the documents marked 'C' and 'D' but they are in agreement with the High Court in thinking that the oral evidence proved partition in February, 1939.
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 the division in status or to prove the details of the partition. When the question directly arises hereafter in this Court, we may have to consider whether the Full Bench decision in Ramayya v. Achamma (1944) 2 M.L.J. 164 : I.L.R. (1945) Mad. 160 (F.B.), is good law after the decision of the Judicial Committee.
5. If the appellants had adduced other evidence to prove that a partition took place in 1937 allotting the whole of A schedule property to the appellants, the fact that the compromise decree is inadmissible in evidence may not have stood in the way of the appellants' succeeding in the case. But unfortunately the appel-lants did not adduce any other evidence to prove that there was a partition in 1937 apart from the production of the certified copies of the compromise and the compro-mise decree. There was only one witness for the plaintiff and one witness for the defendant and on this evidence it is not possible to find the partition apart from the compromise and the compromise decree. The result is no doubt very unfortunate but the appellants might perhaps have cured the defect by adducing other evidence and that, they have not done.
6. The effect of not engrossing the final decree for partition on a non-judicial stamp-paper has been the subject of various decisions of this and other High Courts. In Jotindra Mohan Tagore v. Brjoy Chand Mahatap (1904) I.L.R. 32 Cal. 483, it was held that a decree which is not drawn "up on a proper non-judicial stamp paper is a nullity and that the suit must be considered to be pending. In Satyanandhan v. Nanayya (1937) 47 L.W. 51. 844, Burn and Lakshmana Rao, JJ., observed that " a final decree for partition has no existence as a decree until it. is engrossed on the proper non-judicial stamp paper; till that is done the suit is pending." A slightly different view has been expressed in Venkatappa v. Venkatappa (1943) 2 M.L.J. 112 : I.L.R. 1944 Mad. 266. It may be that the appellants are entitled to approach the Sub-Court of Calicut and point out that the decree in O.S. No. 34 of 1935 must still be considered to be pending and request the Court to pass a final decree after supplying the proper non-judicial stamp paper. In that case it will be open of course to the other parties to raise such objections as are open to them and if a final decree is hereafter passed, what effect it will have on the rights of the plaintiff in this suit is another matter Even if the plaintiff in this suit is not to be bound by any later decree drawn in O.S. No. 34 of 1935 on a proper non-judicial stamp paper it will still be open to the appellants to urge as against the other co-sharers and particularly against the heirs-at-law of Ahammad to say that having regard to the events that have hap-pened they should not be given any share in any of other properties particularly in items 1 and 3 of the B schedule.
7. The next question urged is whether the purchaser of a co-owner's share in one particular item can file a suit for recovery of the share that he has purchased in one item without filing a suit for general partition. As held by this Court in Pakkiri Kanni v. Manjoor Sahib (1923) 45 M.L.J. 321 : I.L.R. 46 Mad., there is no such disability laid on the purchaser of a co-owner's share. It is open in such cases to the co-sharers who are impleaded as defendants to ask the Court to effect a division of all the properties. The plea raised in the written statement was that the suit is bad for partial partition and that it must include all the properties held by the family or by the co-owners. The issue raised is as follows : "Is the suit as framed unsustainable as one for partial partition?" In this form the question is concluded by the decision of this Court in Pakkiri Kanni v. Manjoor Saheb (1923) 45 M.L.J. 321 : I.L.R. 46 Mad. 844 and that is probably the reason why the advocate appearing for the sixth defendant who is one of the appellants expressly gave up this issue before the trial Court.
8. Mr. S.T. Srinivasagopalachari, the learned advocate for the appellants then urges that there are equities which have to be worked out between the co-sharers, particularly, between the heirs of Ahammad on the one side and the appellants on the other side and that those equities arise out of the fact that Ahammad had drawn large amounts from the assets of the partnership and from the other assets of the famiy. If Ahammad had filed a suit for partition, he would certainly be bound by all the equities in favour of the other co-sharers. He cannot get a decree for partition of the properties without meeting all the liabilities. A purchaser from one of the co-sharers is in no better position than the alienor himself. Whether the purchase is by private alienation or Court-sale, in either case the purchaser cannot have a higher right than that of the co-owner whose rights he has purchased. Here again the trouble is that there is no plea in the written statement that even if the plaintiff is entitled to a partition and delivery of one-third of the A schedule properties he should be directed to pay any sum or sums to the appellants. The only plea that was raised was that the plaintiff is not entitled to any share in the A schedule property for the reason that in adjustment of the previous indebtedness of Ahammad the whole of the A schedule property had been validly allotted to the appellants. There is no plea that any equity should be worked out in this suit as against the plaintiff. Here again it is unfortunate that owing to lack of pleading and proof the appellants have to suffer. As there was no pleading there was no issue regarding the question of equities in favour of the appellants and there was no evidence about it.
9. The last point urged is that the property was really partnership property and that it was not validly attached under Order 21, Rule 49, Civil Procedure Code. Both the Courts have found that the property was not partnership property but that it was property held as tenants in common by the three brothers. This is a question of fact and I see no reason to interfere with that finding.
10. The result is that the second appeal fails and is dismissed. I make no order as to costs of this Court. No leave.