1. Plaintiff-respondent 1 sued in the lower Court for partition. The relationship between the parties will be seen from the following genealogical tree.
2. Only one item of the family property is in dispute in the case, namely an 8 annas share of M. Mangi. According to the plaintiff this 8 annas is owned by the sons of Bhagwan and Gangaji, each set of sons being interested to the extent of 4 annas. The other 8 annas share is owned by defendant 1. His branch separated long ago and got this 8 annas. Defendant 1 is consequently not directly interested in this suit. But it was necessary to join him because some of the home farm appertaining to the 8 annas in suit lies in his patti and consequently there can be no proper division of the farm of that patti without his presence. According to the plaintiff there was a partition on 2nd April 1924 (Ex. 7 D-1) between Bhagwan and Gangaji but the 8 annas share now in suit was not divided by metes and bounds because litigation was pending in respect of it, but each took a separate though undivided half in it. On 14th June 1925 there was a second partition, after the death of Bhagwan and Gangaji, between the sons of Gangaji. In it Gangaji's undivided 4 annas share was assigned to defendant 2 Ganpat. On 22nd May 1928 a third partition (Ex. P. 83) was effected between the sons of Bhagwan. In it 4 annas out of the 8 annas in suit was assigned to the plaintiff's share. The plaintiff now wants this 4 annas to be ascertained and divided off from the rest by metes and bounds. The difficulty in his way is that the deeds, Ex. 7-D-1 and Ex. P-33, relating to the first and third partitions, are unregistered and the question is whether the plaintiff can prove them. His learned counsel argued that it did not much matter whether this could be done or not because if this property was not then divided, then he has a right to claim division now, and as there is no quarrel between his brother defendant 7, and himself, except on a minor point which does not concern us here, he is still entitled to 4 annas, or at any rate, at the worst, he should be given 2 annas and his brother 2 annas. The defendant's reply to this is that a partition cannot be partial, and that if the plaintiff wants to have the family estate divided it must all be brought into the hotchpot and consequently this suit, which is for the division of only one item of property, does not lie. Dealing first with the question of non-registration, the plaintiff's contention is that the deeds referred to are not instruments of partition: they merely recite a past event. Therefore, they do not require registration. This question was dealt with by a Division Bench of this Court, to which one of us (Bose, J.) was a party, in 1938 NLJ 82, (’38) 25 AIR 1938 Nag 434 , 178 IC 293 , ILR (1938) Nag 604 , 1938 NLJ 82 and the law, founded on two decisions of the Privy Council, was expressed as follows:
It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to ‘create, declare, assign, limit, or extinguish….. any right, title or interest’ in the property which is admittedly over Rs. 100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated.
3. The two Privy Council decisions on which this is based are 11 Pat 272 (’32) 19 AIR 1932 PC 55 , 136 IC 798 , 59 IA 130 , 11 Pat 272 (PC) at p. 279 and 50 Cal 338 (’23) 10 AIR 1923 PC 50 , 71 IC 650 , 50 IA 77 , 1 Rang 66 , 50 Cal 398 (PC) at page 345. We have therefore to scrutinize these documents. Exhibit 7-D-1 calls itself a receipt. It recites:
You and I are real brothers and were all joint up to this day. But today you and I have separated and the undermentioned moveable and immovable property is allotted to your share.
4. It then sets out the property allotted to the share of the brother in whose favour the document is executed and continues:
The aforesaid moveable and immovable property has been allotted to your share and is delivered into your share. Therefore neither I nor my heirs have left any right and interest therein.
5. Then follow certain items of property which are kept joint and the document states in respect of them:
This property is joint. However we will have the same partitioned on the decision of the appeal… On getting the possession through Court, we will get it partitioned half and half. I have written and signed this receipt list at Sakhara with my free will and pleasure and while in full possession of senses.
6. The document is then dated, the name and address of the scribe is set out, and the signature of the executant. This is followed by the signatures of three attesting witnesses. We have no doubt that this document was “meant to embody the expression of will necessary to effect the change in the legal relation comtemplated.” The use of the present tense suggests that, also its form, particularly the concluding portion which speaks of the document having been executed “with my free will and pleasure and while in full possession of senses.” Also the fact that as many as three attesting witnesses were called. It is not usual to take all these pains except in documents intended to effect a change in legal relations. The idea was plainly that the whole thing should be reduced to writing and that the change should be effected by a written instrument so that there could be no doubt or uncertainty about the fact and details of the partition. That being so, the document required registration. This is also the position in respect of Ex. P-33. It has a doubtful clause in the beginning which is couched in the past tense, namely:
Panchas have delivered the below mentioned moveable and immovable property into the possession of the said Namdeo…… I admit the same.
7. But reading the document as a whole, we have no doubt that the intention was to make this the final and operative thing. It has to be remembered that finality is reached orally in nearly every transaction which is reduced to writing and that but for an intention to reduce the matter to writing the oral agreement would in itself constitute a valid and binding contract. But if the intention is that the writing is to be the operative contract, then the former verbal agreement falls to the ground. It has also to be understood that the word “panchas” can be used in a double sense. It can be used to signify arbitrators. That is to say, it can relate to a position in which there has been a reference to arbitrators with an award. In that event the change in the legal relationship would be effected by the award and not by the subsequent writing by the parties. But more generally the panchas are disinterested friends who are called in to give advice and help. They suggest a particular form of division. Each side makes modifications and gradually the parties work down to an agreement, and finally these friends say “there now, you take that and you that.” In one sense of course it can be said that the division is effected by these panchas, and that is what the layman, speaking loosely, usually says. But when the position is carefully analysed the thing which legally concludes the matter is not their decision but the agreement of the parties, and the only part which the panchas play is in helping the parties to arrive at a common result. That, from a legal point of view, is on the same footing as an agreement reached orally. If, however, the parties desire that the agreement though reached orally should not be the final and operative agreement but that it should be reduced to the form pi a document, then the final and operative matter which effects the change in the legal relationship is the writing and not the previous oral agreement. That we think is the position here.
8. The form of Ex. P-33 weighs with us as did the form of Ex. 7-D1, especially the concluding portion, which is much as before. Then there is a sentence in the middle which is couched in the present, and not the past tense: “one anna three pie share out of which one anna (shown) is separated of Mouze Wasari.” Then again towards the end there is the following passage:
Thus in the presence of all the panchas I have read this receipt of the moveable and immovable property in respect of the aforesaid one-half share: and after fully taking into consideration all the aforesaid moveable and immovable property we both brothers have taken our respective receipts in the presence of the panchas.
9. Then again we find the name of the scribe set out and the signature of the executant. We can find no meaning in this careful and elaborate document which was so solemnly drawn up with a counterpart signed by the other side if the two together were not intended by the parties to embody and legally effect the actual partition between them. We, therefore, agree with the lower Court in thinking that these documents required registration and that not having been registered they were struck out by Section 49 of the Registration Act.
10. The next question is whether they can be used in the evidence at all, and if so how. That depends upon the nature of partition under the Hindu law. It was argued that when analysed, the matter is found to consist of two separate elements which are distinct from one another and which can come into existence independently. The one is notional and relates to title, the other physical and relates to the occupation and possession of property. It was pointed out that a division in title can be effected without any division of property, and 12 NLR 113 (’16) 3 AIR 1916 PC 104 , 37 IC 321 , 43 IA 151 , 43 Cal 1031 , 12 NLR 113 (PC) at p. 120 was relied on.
11. It was then argued that instruments of partition which deal only with the first element, namely, a severance of joint status and title, can always be looked at whether registered or not, and it was said that though instruments of the second kind, which deal with a division of property, require registration, they can always be used to prove a severance of title. It was argued that no law requires that the severance in status should be effected by a registered instrument, or even by writing. It was pointed out that it is enough for one coparcener to declare unequivocally his determination to separate and to indicate that determination is a fixed one. This, it was said, can be done by unilateral action and does not require the consent or assent of any other person. It was contended that the severance in title can be effected by a mere determination to sever and that no overt act or outward declaration of this intention is necessary. An extreme case was put. It was contended that man could suddenly awake in the middle of the night and say to himself “I am separate,” and that would be enough. He need not disclose this to any one and could, if he so chose, keep his secret locked in his heart for as long as he liked. Then years later he could reveal what he had done, and if believed, all the consequences which flow from a severance in status would take effect from that date. That is how the argument was put in its most extreme form. An illustration easier to follow is that the man could reduce his intention to writing, sign and date it, and then without telling anybody a word about what he had done lock the statement up in his drawer and keep it there safe from prying eyes. It was argued that this would have the same effect.
12. We do not think that the matter can be put in that extreme form. It is true that the texts quoted by the Privy Council in 12 NLR 113 (’16) 3 AIR 1916 PC 104 , 37 IC 321 , 43 IA 151 , 43 Cal 1031 , 12 NLR 113 (PC) at p. 121 say that “partition is a particular condition of the mind” and that it can be effected by “mere intention,” but they also indicate that intention must be accompanied by a declaration “I am separate from thee.” This shows, we think, that the person separating has to tell at least those from whom he intends to separate about his intention. Their Lordships express the position thus at page 122. “Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, etc.” Therefore it is clear that there must be not only a mental decision to effect the change but also an outward expression of it which is communicated to the co-sharers, or at any rate to some of them. The texts which their Lordships quote state that … a partition is effected by the mere declaration ‘I am separate from thee’, for partition is a particular condition of the mind and the declaration is indicative of the same.
13. And again: “From this it is known that without any formality partition can be effected by mere intention.” It seems to us therefore that the intention and the declaration are both necessary ingredients in the matter of effecting severance. It is true that this declaration does not have to be reduced to the form of a document. It can be effected “without any formality.” But if it is reduced to writing, then it seems to us that it is an instrument of the kind contemplated by Section 17(1)(b) of the Registration Act. It either “creates” or purports to create “a right, title or interest in immovable property,” or at any rate it “declares” or “purports to declare” that such exists. Such a document says that whereas the right, title and interest before execution was joint now it is several. It says that after execution the property to which it relates has ceased to be joint family property, that is to say, it either creates a separate title and separate interests which are different and distinct from a joint title and joint interests, or it declares that they now exist, whereas they did not exist before. We think that such a document falls within the purview of S. 17(1)(b) and that it is struck at by S. 49. It would consequently be inadmissible in evidence not only as regards that aspect of partition which relates to a division of property by metes and bounds but also as to that which relates to a severance of title. In this we agree with 15 CWN 3755 at p. 378 and we think that this conclusion is a necessary corollary to the decision of their Lordships of the Privy Council in 51 ALL 771. (’29) 16 AIR 1929 PC 269 , 119 IC 633 , 56 IA 363 , 51 All 771 (PC)
14. The next question is whether and how far the deed can come in under the proviso to S. 49 which allows documents which would otherwise be excluded, to be used as evidence “of any collateral transaction not required to be effected by a registered instrument.” In 43 Mad 244 (’19) 6 AIR 1919 PC 44 , 53 IC 901 , 46 IA 285 , 43 Mad 244 (PC) at p. 249 their Lordships of the Privy Council allowed an unregistered deed of gift, which required registration, to be used not to prove a gift, (because no legal title passed) but to prove that the donee thereafter held in her own right. We think the same rule applies here. It may be that these unregistered deeds did not in themselves effect any legal severance of title, but if the parties thought they did and acted on that belief, and in fact held their shares in severalty from that time, then we think that those facts can be proved and that the documents can be used to show the nature and character of the possession after their execution. But once that is done, once it is shown that the parties actually severed their interests and acted on these documents, then the partitions with which they severally deal are fully and completely established. The distinction is a subtle one but is real. Partition, unlike a sale or transfer which consists in its essence of a single act, is a continuing state of fact. It does not require any formality, and therefore if parties actually divide their estate and agree to hold in severalty there is an end of the matter. They are bound by their agreement. The documents we are dealing with would not bring about any separation of title or division of property because they are unregistered but the subsequent actings of the parties in pursuance of an intention to divide would.
15. An illustration will show what we mean. One member of a coparcenary writes a letter to his fellow coparceners telling them of his intention to separate and sends it by messenger. On the way the letter is lost or destroyed or burnt, and never arrives. There would be no partition, notional or otherwise, because, as we have shown, the declaration of an intention to separate has to be communicated to at least one other coparcener. But if thereafter the writer of the letter were to go to the other coparceners and tell them about the letter, if they were then to divide up the property between them and agree to hold it separately, and actually do so, then there would be a complete partition. It would be effected not by the lost or destroyed letter, which in the result proved ineffective, but by the subsequent agreement and actings; and these facts could be proved in the ordinary way. If no direct proof of agreement were available, it could be inferred if the necessary material were there, and the fact that the letter we are speaking of had been written and sent would be relevant and material. In itself the letter would be useless to effect the partition, but it would be material to show that the course of events which followed upon its execution had reference to a subsequent agreement to divide and to hold in severalty.
16. The matter can be put in another way: If these documents which we have been considering had been registered they would in themselves have brought about a separation of title and a division of property. Thereafter, the parties to the agreement could have insisted on having its terms carried out. A could say that property X fell to his share and that it must be given to him. But being unregistered they are in effective to bring about a partition, and therefore if the parties did nothing else, if they did not confirm that agreement, or act upon it and carry out its terms, then A would not be able to demand property X. All he could do would be to ask for a fresh division and in it property X might or might not fall to his share. But if the parties confirm the unregistered agreement, or act upon it and carry out its terms, and do so with the intention of separating, then partition would be complete, and A would be able to claim property X, not under the unregistered document but in virtue of the subsequent agreement confirming the original intention.
17. No question of transfer of title arises in partition. Each parcener already has complete title to and dominion over every parcel of the joint estate. Partition is consequently only a change in the mode of enjoyment of the joint property coupled with an alteration in status, the joint title being divided into a number of separate ones. No particular formality is required, and therefore although a document by which the parties had intended to have this division effected may, in the result, prove ineffective for that purpose, nevertheless their common desire to act upon it, and their action in doing so, would spring from a continuation of the original intention, and that at any particular moment of time would amount to a confirmation of the original agreement; and if for any reason the original agreement were to fall to the ground, or be unprovable, such confirmation would in itself constitute a fresh and subsequent agreement which would be enough in itself to effect complete partition; and that agreement would be provable in any of the usual ways. We think that is the true position and we think that was the decision in AIR 1927 Nag 113. (’27) 14 AIR 1927 Nag 113 , 99 IC 448
18. The rulings cited before us, namely 45 ALL 21, (’22) 9 AIR 1922 All 493 , 70 IC 953 , 45 All 21 , 20 ALJ 777 15 CWN 3755 and AIR 1927 Nag 113, (’27) 14 AIR 1927 Nag 113 , 99 IC 448 do not consider the position of the unregistered document in relation to this subsequent agreement. All they decide is that oral evidence is admissible of the fact of partition. In our opinion the subsequent agreement of which we have spoken is “a collateral transaction not required to be effected by a registered instrument” within the meaning of Section 49 of the Registration Act. Therefore, the unregistered document can be used as material in proof of it. Of course it cannot prove such agreement in itself because no such agreement can be deemed to have been in existence at the date of its execution. But it could be used to corroborate other evidence or facts. It could be used in conjunction with other evidence to show that such subsequent agreement was likely and to elucidate the intention of the parties in effecting such subsequent agreement. It could be used to show the character of the possession and the nature of the title, provided there is other evidence to establish separate possession. Coming now to the facts of this case. The first partition is said to have been made on 2nd April 1924. We will ignore the unregistered deed, Ex. 7 D-1, for the present and examine the other evidence. First of all there is Ex. 7 D-3, a letter dated 5th June 1924, written by defendant 2, Ganpat, to a couple of the panchas who are said to have effected or brought about the partition. It says:
In my absence at Sakhara you divided our estate into two shares. But I do not know anything at all. Similarly as there is ill-will between Gangaji Patil and myself I have no means to know how the shares were made. Hence both of you should come and explain as soon as possible the partition lists made in respect of the immovable property. As the property is ancestral, rights thereto vest in me as well. Hence, please explain to me as soon as possible the particulars of the shares with the details of the properties with acres and all other things falling thereto.
19. This is clear proof of the fact that either Ganpat's father Gangaji had made a declaration of his intention to separate or that Bhagwan had done so, and that this declaration had been communicated to Ganpat. It is also proof of the fact that either Gangaji or Bhagwan, or both, had persisted in this intention, had got panchas to divide the property, and that a division was made. The unregistered instrument of partition, Ex. 7 D-1, can be used to corroborate this evidence. Beading the two together there can be no doubt that the first element of partition, namely the separation of title in the year 1924, is completely established.
20. As regards the second element, the division of property, Ex. 7 D-1 is powerless to effect that, and Ex. 7-D-8 shows, for what it is worth, that Ganpat was not a party to the division. Therefore, he is not bound by it, for of course a division of the estate cannot be made unless all the coparceners consent or the Courts direct it. But it shows that he was aware that a certain division of property had been suggested and that all he asked was to be told its terms in order that he might decide whether to accept them or not. But, if we find that subsequently the parties continued in separate possession in accordance with the terms of the unregistered deed it will be legitimate to infer that Ganpat on learning of the terms did not object and so confirmed and ratified the arrangement, that is to say that he was also a consenting party. We turn next to the pleadings. The plaintiff had set up this partition of 1924 (including a division of the estate by metes and bounds) in his plaint. In his rejoinder defendant 2, Ganpat denied the partition but admitted that the property has been divided and that it was in the separate and exclusive possession of Gangaji's sons. This is his statement:
It is already denied that there was a partition in 1924 between Bhagwan and Gangaji as alleged. It is admitted there was an arrangement between the sons of Gangaji to enjoy the property that was in the management of their father, separately and exclusively for the sake of convenience. But there was no partition.
21. He also said that the partition, if any, was in any event unfair. But that is another matter. We need not travel beyond the pleas of defendant 2 because he is the only appellant. As he admits that the property was held exclusively and separately that fact need not be proved, and all we are now concerned to see is the character of the possession. But if proof were needed, it is to be found in the deposition of defendant 2 himself as 2 D.W 4. He was forced to admit the truth of these facts. There is also the evidence of P.Ws 5, 6 and 7 and Ex. P-16, the order of the Commissioner, dated 21st March 1929 directing mutation in the Record of Rights enquiry. After the admission in Ex. 7-D-3 about the severance of the joint status, it would be difficult to resist the conclusion that the subsequent division of the estate was not in pursuance of such an intention but Ex. 7-D-1 places the matter beyond doubt. This unregistered document can be used for this limited and collateral purpose. We hold, therefore, that there was a partition in 1924 which included a division of the estate by metes and bounds. As regards Ganpat's contention that this was in any event unfair, until he chooses to sue to have it set aside it must stand. But, in any case, there is no proof of unfairness, so, that can be set on one side. The subsequent partitions of 1925 and 1928 are not of much moment. The one of 1925 was between Gangaji's sons and the one of 1928 between the plaintiff and his brother, defendant 7. So far as they are concerned (that is to say the plaintiff and his brother) this partition between them is admitted except on a small detail which does not affect us. As regards the one between Gangaji's sons it does not matter to the plaintiff whether they are divided or not so long as the main division in 1924 is upheld. It is the case of all the parties that the property in suit was never divided. The plaintiff says, because litigation was then pending in respect of it, defendant 2 says, because there was never a partition. It is clear then that the plaintiff is entitled to claim a division of this property in any event. The only relevance of the partition of 1924 is that if it never took place then the plaintiff would be obliged to bring into hotchpot all the property in his possession and would be obliged to ask for a complete partition. He could not demand a partial partition. But in view of our findings that the partition of 1924 is established and that it embraced not only a separation of title but also a division of the joint estate barring the property now in suit, the plaintiff's right of suit is clear.
22. Respondent 8, Abdul Razak Ahmad died during the pendency of the appeal. His legal representatives were not brought on record and the appellant gave him up. The appeal therefore abated as against him. As regards defendant 1, his learned counsel stated that nothing was claimed for or against him and that he had no interest in the suit beyond the one stated in the plaint. He did not oppose the plaintiff's claim and said that he had nothing to urge either for or against the appeal. The decision of the lower Court is upheld and the appeal is dismissed with costs which will be separately apportioned. The plaintiff (respondent 1) will be paid his full costs separately. Defendant 1, Waman, (respondent 2) will get only nominal costs which we assess at Rs. 30. Defendant 7, Ramchandra, (respondent 7), will also get nominal costs. The remaining respondents who are the appellant's brothers will get no costs.
G.N/R.K
23. Appeal dismissed.