Pothi Naickan v. K. Naganna Naicker

JUDGMENT

The Chief Justice. — This suit was brought by the minor plaintiff to question an alleged partition under Exhibit III between himself and his paternal uncle, Subba Naick, in the year 1907. The District Judge dismissed the suit and on appeal his decree was affirmed under Sect. 98 (2) of the Code of Civil Procedure in accordance with the judgment of Sankaran Nair, J. and Oldfield, J., differing and being of opinion that, at any rate, as regards immoveable property, Exhibit III was inadmissible in evidence for want of legislation under Sect 49 of the Indian Registration Act.

The plaintiff appealed under the Letters Patent and after carefully considering the case we agree with Oldfield, J., that Exhibit III, in the language of Sect. 17 (1) of the Act, operates to create a right, title or interest, of the value of one hundred rupees or upwards to or in immoveable property. The material portion of the document is as follows:—” As we have, in the presence of the undermentioned panchayatdars divided, into equal moieties, the cash, moveables and immoveables, Court decrees, etc., of which we are now possessed, valued at Rs. 80,000, our connection shall hereafter be only by relationship, but we shall have no monetary connection in respect of these properties.” We think this has the effect of causing the immoveable properties, theretofore held by co-parceners as joint-tenants, thenceforward to be held by them as tenants-in-common. Under Sect. 49, therefore, Exhibit III cannot affect such immoveable property or be received as evidence of any transaction affecting it.

The further question then arises whether Exhibit III is admissible to prove a partition of moveables only. It has been held as regards the Statute of Frauds that the statute operates to prevent an action on a contract though the part of the contract may not be within it. Leake on Contract (3rd Edn.) 252, and Parsons (9th Edn.) Vol. II page 674 citing Johnson v. Johnson(1) and Mayfield v. Wadsley(2). See also Green v. Saddington(3). The principle laid down in this case would appear to be that when there is an entire contract and part of it cannot be enforced, the whole goes, whereas, it is otherwise when an instrument contains two or more distinct contracts in which case they are severable. In Thandavan v. Valliamma(4), it was held in a case somewhat similar that the contract as regards the partition of immoveables might be severed from that as regards moveables, but in that case the contract contained separate provisions as to each. In the present case, on the whole, I have come to the conclusion that there is not sufficient justification for treating Exhibit III as consisting of two or more separate contracts. As pointed out by Parsons, Vol. II, page 673, the question ultimately turns on the intention of the parties, and I am not satisfied that there was any intention that the moveables should be partitioned apart from the immoveables. For these reasons, I would allow the appeal and give judgment for the plaintiff with costs throughout, set aside the decree of the District Judge, and demand the case for disposal as regards prayers (d) and (e) of the plaint.

Sadasiva Aiyar, J. — I agree. Mr. S. Srinivasa Aiyangar for the respondent further contended that the unequivocal declaration by Subba Naicken in the unregistered deed Exhibit III effected a division of status between him and the minor plaintiff. But after a consideration of all the circumstances of this case, I think that the right view to take is that the deceased Subba Naik did not interim such a division in status to take place without the deed itself simultaneously taking effect as a valid division deed, in other words, he never contemplated a division of status unless and until the deed itself is legally capable of effecting such a division. I therefore am unable to uphold that contention of the Respondent's learned vakil.

Seshagiri Aiyar, J. — I agree and have nothing to add.

Appeal allowed.