JUDGMENT
Spencer, J. — The appellant, who was the plaintiff in the first Court, is the purchaser from one Kuppana Nadar of his interests in the suit property which he had obtained by purchase in Court auction in execution of his decree in O. S. No. 317 of 1903 on the file of the District Munsiff's Court, Dindigul. That suit was brought against one member of an undivided family for his one-third share in four items and for one item of self-acquisition; the first and the third respondents in the second appeal are brothers of the defendants' father in that suit. The plaintiff in that suit having purchased these items in Court auction on the 9th September 1905 applied for delivery of possession of the same and was referred to a regular suit by an order of the District Munsiff of Dindigul, on the 7th September 1906. He sold his rights to the present plaintiff on the 11th December 1907. This suit was brought on the 12th October 1908 for possession of the plaintiff's one-third share in four items after partition and for the whole of the fifth item, those being the properties which were purchased by Kuppana Nadar in Court auction subject to the hypothecation rights of one Subban Chetty. The present appellant having obtained a decree in the court of first instance, additional evidence was admitted by an order of the appellate Court with the result that the appeal was allowed and the suit was dismissed.
The first objection taken here is that the lower appellate Court should not have called for a report from the District Munsiff on the additional evidence recorded by him. We feel satisfied that the District Judge who disposed of the appeal did not allow his mind to be prejudiced by the act of his predecessor or by the finding recorded by the District Munsiff in consequence of the order. He observes in paragraph 3 of his judgment: “Objection has been taken that a revised finding is not authorised by the Procedure Code in such cases. As far as I am concerned, the point is not material as an independent consideration of the evidence is in any case necessary.”
The next point that has been argued is that Exhibit VIII being an unregistered document should not have been admitted in evidence. The question is whether this document is an instrument operating or purporting, to create, declare, assign, limit or extinguish any right, title or interest to or in immovable property within the meaning of section 17 of the Indian Registration Act. A reference to Exhibit VIII shows that it is composed, first, of lists of properties which were in possession of the different members of the undivided family before division and thus were available for division. At the end all the properties are clubbed together and the total value is stated as well as the value of each share. Then a note follows” In the presence of the witnesses named hereunder we divided.” Below this all the three members of the family have signed, and the signatures of the witnesses follow beneath. It appears to be a record or memorandum of the property subjected to a division that according to the oral evidence, took place on the date on which it was written. But it can hardly be said to create or declare any right over any specific immovable property, or to declare any one's separate title in a divided portion of what was previously undivided, as the immovable property which fell to the share of particular members is not described. There is nothing in this document from which we can gather what was the separate share of any member who took part in the partition. In fact it is imperfect as a deed and one which, if presented for registration, would, I think, have been rejected for vagueness. It is, moreover, in evidence that the parties contemplated executing a regular partition deed, but that no such document was executed.
A number of authorities have been quoted in which the liability to registration or to stamp duty of documents, which might be construed as partition-deeds has been decided. These decisions afford but little guidance to us for deciding this case, as each document must be adjudicated with reference to its contents. I think that Exhibit VIII did not require registration. The respondents also rely on the decision in Subramania Aiyar v. Savilri Aminal, as showing that the document was admissible for proving the divided shares of the family and assert that this is the only use that the Judge has made of it. There can be no doubt that a document which merely declares the divided status of; a family would not require registration. In this view also the objection to the want of registration of Exhibit VIII appears to be unsustainable.
The third ground of appeal taken in the arguments before us is that the question as regards division became final by the order in execution proceedings passed by the District Munsiff of Dindigul on the 7th September 1906, which was not appealed against within one year. This point was not taken in the plaint, and after hearing the arguments addressed to us in support of it I do not think that it can be sustained.
Article of the Limitation Act and Order XXI, Rule 103 of the Civil Procedure Code, do not bar the respondents from setting up the plea of division in the suit. A perusal of the District Munsiff's order (Exhibit B) shows that he did not finally decide the question of partition, or in fact, form any decided opinion as to the respective claims of the parties to the properties sought to be put in the possession of the decree-holder and auction-purchaser. The District Munsiff merely observed that under the circumstances he was not prepared to hold that the Counter-petitioners who are now the respondents (respondents Nos. 1 and 3) had established that there was a completed and valid partition as alleged by them. The proceedings are described in the order as being summary, the evidence was not considered in detail, and allusion is made to the necessity of filing a regular suit for partition before the decree holder, Kuppana Nadan, was entitled to ask for actual possession. The order was in its result unfavourable to him to the extent that he was not allowed to get actual possession under section 318 of the old Code of Civil Procedure, but it was not altogether unfavourable to the respondents. The case is therefore similar to that of Alwar Iyengar v. Zellevegar.
In the result J consider that the second appeal should be dismissed with costs.
Sadasiva Aiyar, J.:—During the arguments my mind was not quite settled on the question whether the document, Exhibit VIII is or is not “an instrument operating or purporting to create, declare, assign, limit, or extinguish any interest to or in immovable property.” As I interpret the document, it clearly declares that as regards certain immoveable properties, the parties to the document have no longer a joint interest therein with rights of survivorship. Its clear result according to its terms seems to be that no portion of the lands mentioned in it is thereafter jointly owned by all the parties to it. No doubt, it does not state which particular land was thereafter, to be enjoyed separately by which particular co-parcener, or whether the entire land was taken by one or more coparceners alone separately or in separate rights or as tenants in common, but it does extinguish the joint rights in immoveable property which formerly existed. I am therefore inclined to hold that Exhibit VIII requires registration.
Next, it is contended by respondent relying on Subramania Iyer v. Sdvitri Ammal that even if the document required registration, its not being registered has only this legal effect, namely, that it cannot affect the immovable property comprised therein and cannot be received as evidence of any transaction affecting such property, (see section 49 of the Registration Act), but that it can be received as evidence of the fact that the parties to it have become divided in status. I feel very doubtful whether this argument is sound. If the document cannot affect the joint rights in the lands which belonged to the members of the joint family and if survivorship therefore still subsists among the members of the family so far as these lands are concerned it is difficult to see how a divided status could be estalished between the parties to the document. In Subbaya v. Madduletiah it was held that an unregistered permanent lease is inadmissible in evidence to prove the nature of the possession which the lessee had. In Lakshinamma v. Kameswara. it was held that although the deed in question in that case showed that the execution of another deed with reference to the rights in immoveable property dealt with by the deed in question was in contemplation, yet the deed in question was not admissible in evidence even as regards the moveable property comprised in it as the document required registration owing to the immoveable property comprised in it being of the value of over Rs. 100. The learned Judges say “The transaction evidenced by the agreement is, therefore, one and indivisible and the partition of the moveable property cannot be separated from the partition of the rest.” I think that the division of status created by Exhibit VIII in this case cannot be logically or appropriately separated from the extinction of joint rights in immoveable property effected by the same document, and if Exhibit VIII is inadmissible in evidence so far as proof of such extinction of rights is concerned, it cannot also be admitted in evidence as regards the creation of a divided status among the family members. In Upendra Nath Banerjee v. Umesh Chandra Banerjee it was held that, where the defendant in a suit sought to use an unregistered partition deed to prove that the property covered thereby ceased to be joint property, the document was inadmissible under Section 49 of the Registration Act. As the learned Judges say, (see page 376) title to such property has been altered by the partition transaction without proof of which the property would still retain all the incidents of joint property”. I am inclined to hold that the case, in 19 M. L. J. 228 is inconsistent with the principle of the decision in I.L.R 13 Mad. 308 and I would, with the greatest respect, dissent from the opinion expressed in 19 M. L. J., 228. Coming to the other question, namely, whether the order passed by the District Munsiff of Dindigul on the 7th September 1906 became final as not having been set aside within a year, this question again is one of great difficulty. The order, Exhibit B, was passed in a proceeding which, though initiated under Section 334 of the old Civil Procedure Code, was treated as a petition filed under section 335, (see para 3 of the order). Under the 1st paragraph of section 315, the court may pass “such order on the petition as it thinks fit,” the petition in this case being a complaint by the purchaser at the court auction sale that he was resisted and obstructed in his attempt to get actual possession of the properties by a person other than judgment debtor claiming in good faith the right to the possession of the property. The order which the court passed was that the purchaser should get symbolical or constructive possession of a one-third share in items 1 to 4 and also constructive possession of the equity of redemption of item 5, such possession to be given in the manner provided for by section 319 of the Civil Procedure Code. Hence actual possession of items 1 to 4 was not given. As regards item 5 it was in the possession of a mortgagee and he could not be actually dispossessed and hence formal possession was ordered to be given of item 5 also. The 2nd paragraph of section 335 says that the party against whom an order is passed under the first paragraph may institute a suit to establish the right which he claims to the present possession of the property but, subject to the result of such suit, if any, the order should be final. The question raised is whether when no actual dispossession of the obstructing and resisting party has taken place in consequence of the order passed by the Court in favour of the purchaser and when the court auction purchaser has been given only symbolical or constructive possession the obstructing orresisting party is bound to bring a suit within one year to set aside the order giving symbolical, formal, or constructive posssesion and whether, if he fails to do so, he is bound by the findings on which the order was based in any suit between himself and the Court auction purchaser which may be subsequently brought. As I said, the question is not free from difficulty. That question cannot arise under the new Civil Procedure Code as by Order XXI, Rule 99, the only order on the petition of the decree holder which can be passed, if the Court finds that the obstruction was not on behalf of the judgment-debtor, is an order for dismissal of the petition and not such order as the Court thinks fit” as it was under the old section 335. In Kisori Lal Goswami… v. Lala Shib Lall…Opposite Party. it was held that the delivery of possession of a land under section 319, Civil Procedure Code, to a purchaser in execution does not cause dispossession of the actual possessor within the meaning of section 335 of the Civil Procedure Code and that the person in the actual possession cannot complain under section 335. This case seems to show that no order can be passed under section 335 except an order for actual possession or actual dispossession and that an order for possession of an undivided share by a proclamation through beat of drum &c, is not an order passed under section 335. If a tenant in possession is directed to pay rent to the Court auction purchaser and does attorn in pursuance of the possession given under section 319, that might amount to actual dispossession of the resister or obstructor in some cases. In Ibrahim Mullick v. Ramjadu Rakshit this case in 1 Calcutta Weekly Notes 343 was followed. The case of Brajabala Devi v. Gurudas Mundle really dissents from the opinion expressed in the above two cases in 1 Cal. W. N. 343 and I.L.R, 30 Cal., 710 though it professes to distinguish those cases by pointing out that the actual decisions in those cases are correct because there was no actual dispossession of the persons in possession by the symbolical possession given to the purchaser in Court auction. In Chidambara Patter v. Ramasamy Patter it was held by the Pull Bench that section 283 of the old Code and Article 11 of the Limitation Act did apply to a suit brought more than a year after the claim to atttached debt had been disallowed. The learned judges held that the word “possession” was used in section 278 to 28, in its legal technical sense so as to cover constructive possession and possession in law. The learned Judges also refer to section 355 of the Civil Procedure Code, in which the word” possesses used as applicable not only to tangible property but also to debts and other intangible property. In the case of Alwar Iyengar v. Zellevegar the Munsif in an enquiry under section 335 concluded his order thus:—“Under these circumstances I think it is useless to hold, a Summary enquiry as to the present possession of the land”. The learned Judges say “It is possible that the Munsiff meant to say that he did not think it necessary to take more evidence. The reasonable view would seem to be that the District Munsiff for some reason or other declined to give a decision on the matter on which he has to decide under the section. If this view, is correct, it follows that the order is not one that required to be set aside by a suit. Can we say in the present case that, in the order Exhibit B, the District Munsiff declined to have a summary enquiry as to the right to possession. I am inclined to think that he did not hold an enquiry and further held that the plaintiff was entitled to symbolical possession of a one-third share, in items 1 to 4 and to possesion of the equity of redemption in item No. 5. The only case which, though not exactly in point is based on somewhat similar facts is a case Fidaye Shikdar v. Ozeeooddeen. There section 269 of Act VIII of 1859 was relied upon by the plaintiff as barring the defendant from contesting the plaintiffs' title to possession as the defendant had not set aside by suit within one year the order passed in favour of the Court auction purchaser putting him in possession of the right title and interest of the judgment debtor in the plaint lands after overruling the objection of the defendants who were in actual possession. The learned Judges of the Calcutta High Court held that section 269 of Act VIII of 1859 which combines the provisions of section 335 of the last Civil Procedure Code and Article 11 of the Limitation Act does not contemplate that the party in actual possession should sue regularly to get possession within one year. In Kocherldkota Venkatakristna Rao v. Vadrevu Venkappa very instructive observations occur on the question of possession. Where physical possession is not given, the giving of symbolical and formal possession, though it might be as good as the giving of actual possession so far as the judgment debtor was concerned, could not be availed of against the third persons in actual possession. On the whole (though after much hesitation) I have come to the conclusion that formal possession of an undivided share or of a mere equity of redemption in lands which are in the actual possessinn of others will not constitute such a dispossession of any person other than the judgment-debtor as would oblige such a person to bring a suit within a year of the order passed in the auction purchaser's favour under section 335 at the risk of being bound by the finding in such order if such a suit was not brought.
Having regard to the finding on my first point, however, that exhibit VIII should not have been admitted in evidence for any purpose and that the document and the evidence of defence witness No. 5 which was admitted on remand by the first Court, and the further evidence of 1st defendant re called and again examined on remand were improperly admitted and considered by the Lower Appeallate Court, I would remand the case to the Lower Appellate Court to submit a revised finding on the fourth issue after rejecting from consideration Exhibit VIII and the said additional oral evidence. As however, my learned brother is of opinion that the Lower Court's decree be confirmed his judgment dismissing the appeal with costs will prevail under section 98, clause 2.
Appeal dismissed.