West, J.:— [With reference to the admission of the above document said:—] There was a former mortgage by Madan in 1877. To what property that extended, is not shown; but a paper was on that occasion signed by which Ramchandra's present statement, that he never admitted a partition having been made, is flatly contradicted. The testimony as to the signing of this paper is, like the rest, of an unsatisfactory character. Ramchandra says truly that he was ill, and suggests that pressure was put upon him when he hardly knew what he was about. Ananta and Laldas, if they could be quite relied on, refute this; but they are inconsistent with each other, and Ananta contradicts a previous statement of his own. This much, however, is certain, that Ramchandra signed the paper; that it could be read in a couple of minutes; that he thought or knew that it was connected with important business. He says that, in fact, he thought he was becoming a surety. It was very unlikely he should sign the document without reading it; and as it admits a fair partition, it makes his present denial almost worthless.
An objection was taken to the admission of the document as being a declaration of an interest in immoveable property of value of Rs. 7,000, and unregistered. The law in force in 1877, when it was executed, was Act III of 1877, and if this document were itself a release, operating or intended to operate as a declared volition constituting or severing ownership, I should doubt whether it could be received even for the purpose of the contradiction of a witness that he had previously made a statement inconsistent with his deposition. What section 49 says, however, is that no instrument required by section 17 to bo registered shall, if unregistered, be received as evidence of a transaction affecting such property. If tendered as evidence of an admission that such a transaction once occurred, it would not seem to be within the prohibition strictly construed; but still, as directly evidencing the transaction, it ought not, apparently, to be got in by the simple device of asking a question about the same matter. It would be practically impossible to sever its use as a contradiction from its use as direct testimony of the transaction recorded in it. Here, however, the document is not itself one which declares a right in immoveable property, in the sense probably intended by section 17. There “declare” is placed along with “create”, “assign”, “limit”, or “extinguish” a “right, title or interest”, and these words imply a definite change of legal relation to the property by an expression of will embodied in the document referred to. I think this is equally the case with the word “declare”. It implies a declaration of will, not a mere statement of a fact, and thus a deed of partition, which causes a change of legal relation to the property divided amongst all the parties to it, is a declaration in the intended sense; but a letter containing an admission, direct or in ferontial, that a partition once took place does not “declare” a right within the meaning of the section. It does in one sense “declare” a right; that is, the existence of the right is directly or indirectly stated by the writing, but it is not the expression or declaration of will by which the right is constituted. Unless such a distinction as this were accepted, all correspondence would be excluded from which an admission might be gathered of a right or interest the instrument of which, if there was one, would need to be registered. In the present case the paper is an acknowledgment that there has, in time past, been a partition between the brothers who signed it and the present defendant Madan. It is not itself the instrument of partition; and that an acknowledgment of a partition is distinct from the instrument of partition, is to be gathered from section 17, clause (c) of the Act. Had the terms of cl. (b) been satisfied by a mere acknowledgment, clause (c) would have been superfluous; its operation is to require an acknowldgement in the form of a receipt to be registered, but not an acknowledgment in any other shape as distinguished from the instrument of the transaction. Apart, therefore, from the document being applied only to the particular use of contradicting Ramchandra's assertion that he never admitted a partition, I think it is admissible, not as declaring his will and a right arising therefrom, but as admitting that there had formerly been such a transaction, and as such capable of contradiction which the instrument itself would not be.
Without resorting to this document, however, I should still be of opinion that Ramchandra's conduct had shown that he regarded himself as separated in interest from Madan. [His Lordship then proceeded to examine the evidence, and passed a decree for the defendants.]
Attorney for the plaintiffs.—Mr. Shammo Pandurang.
Attorneys for defendant No. 1.—Messrs. Bakrishna and Bhagwandas.
Attorneys for Hormusji Ardesir Santuk.—Messrs. Avdesir and Hormusji.