Mitchell, A.J.C:— The following genealogical tree shows the relationship of the parties:
2. The dispute relates to the property of R.B Chaudhri Pulandar Singh, and is between the surviving descendants by his first wife, Pahup Singh and Ratan Singh, who are the defendants-respondents, and his grandchild by the second wife, Mt. Jiji, who sued for her father's share and was represented by her aunfe Mt. Gomti Bai. The case for the plaintiff Jiji is that Pulandar Singh, shortly before he died in 1917, broke up the coparcenary consisting of himself and his three surviving sons Maharaj Singh, Ratan Singh and Girwar Singh and divided the landed property among them, giving to each a list of the property allotted to him; and that this partition of the property was completed in July of the following year, when the house-holdi property and moveables were divided up and lists made out of the various shares. The plaintiff alleged that her father Girwar Singh remained in separate possession of his share until his death, on 3/2/24, but the defendants, Ratan Singh and Pahup Singh have taken possession of the whole estate, and are asserting that she has no interest. She based her claim distinctly on Girwar Singh's separate status and separate possession at the time of his death, and gave her cause of action as arising on his death and on her dispossession by the defendants and their denials of her title. The case for the defendants was that there was no partition, and that Pulandar Singh before his death only indicated how partition should be made in the event of his sons separating. The suit has not been decided on its merits and the plaintiff, so far, has lost her case entirely on a finding that the two lists of property are deeds of partition, that they should have been registered, but being unregistered they cannot, by the operation of Section 49 of the Registration Act, affect the property and that by the operation of Section 91 of the Evidence Act no other evidence of the partition can be adduced. The lower Court had framed an issue, No. 4, covering the question of the separate possession of the parties (and, presumably of Girwar Singh, the plaintiff's predecessor) but it held merely that “the alleged partition cannot be proved” and found the issue “in the negative”.
3. During the preliminary stages of the trial the lower Court treated the issues relating to the admissibility of the partition lists as preliminary issues and recorded findings as already indicated, on 17-3-25. On 26-3-25 the plaintiff protested, claiming that she should be allowed to prove that the family was divided when Girwar Siagh died, and, to file lists of the property to which she is entitled. The lower Court held, that the plaint was based on a definite partition which could not be proved, and that it would be improper to allow the plaintiff to amend her pleadings it that stage.
4. During argument in this appeal three Distinct points emerged, relating to (1) the right of the plaintiff to prove the separate status and possession of her father (2) the admissibility of the lists as evidence of the partition; and (3) the right of the plaintiff to ask for some alternative relief if she succeeds in proving her father's separate status, but fails to establish the identity of the property in his possession. The finding of the lower Court, that the lists are inadmissible in proof of the terms of the partition, has not been challenged, though it seems open to doubt.
5. The view taken by the lower Court on the first point is clearly too harrow. The gist of Mt. Jiji's case is given in paragraphs 10 to 14 of the plaint, which Show that her claim is based on the separate status and possession of her father from 1917 or 1918 till his death on 3/2/24. The partition is not the logical basis of her claim; but is only an explanation of how it came about that Girwar Singh died a separate member of the family. All that the combined operation of Section 49 of the Registration Act and of Section 91 of the Evidence Act would effect in this case would be the complete shutting out of all the terms of that particular transaction of partition. In other words, it would prevent the plaintiff from proving that in that partition certain property was allotted to her father. But it would not prevent her from showing by other evidence that her father died separate from the rest of the family and in separate possession of certain property. These facts are not part of the “transaction,” as contemplated in Section 49 of the Registration Act, or of the “disposition” as contemplated in Section 91 of the Evidence Act. The separate status and separate possession of her father was a continuing phenomenon. It may have had its original in the alleged partition of 1917 and 1918, but a finding that these partitions may not be proved will not prevent the plaintiff from proving all that is necessary in her case — that her father died separate and in separate possession of his share. The plaintiff must be given an opportunity to do so now. There are many clear authorities for this finding, but it will suffice to refer only to two leading cases, viz., Chhotalal Aditram v. Bai Mahakere [1917] 41 Bom. 466 , 40 I.C 83 , 19 Bom L.R 322 and Nil kanth Bhimaji v. Hanmant Eknabk [1920] 44 Bom. 881 , 58 I.C 415 , 22 Bom. L.R 992.
6. On the second point also the finding of the lower Court is too narrow. It is now a well-established principles of law that though an unregistered partition deed may not be used to prove the terms of the partition yet it can be used to prove the intentions of the parties. In the present case talk of partition was in the air, as pleaded by the defendants themselves, and these lists, though they do not effect the partition, are yet evidence of the intention of the parties at that time. It is open to the plaintiff to adduce evidence that her father died in separate possession of all or any of the property covered by these lists; and the lists will then be corroborative of her contention that in fact the property was divided in the manner pleaded by her. This finding is supported by many published rulings, including Maharani Janki Kuer v. Birj Bhikhan Ojha A.I.R 1924 Patna 641 , 3 Patna 349, Varada Pillai v. Jeevarathnammal [1920] 43 Mad. 244 , 53 I.C 901 , 46 I.A 285 (P.C) and Appanna v. Vmkatasami A.I.R 1924 Mad. 292 , 47 Mad. 203.
7. On the last point again the finding of the lower Court has been unnecessarily formal. It is true that the plaintiff alleged, a partition and claimed that certain specified property had been allotted to her father, but the essence of her case was that her father died separate in separate possession of a share of the family property, and her claim was that she should be given his share. The lower Court held that as she could not be allowed to sue for the property in the possession of her father when he died, or to prove the details of the property she claimed. But the request involved no change in the character of the suit, or the addition of fresh pleadings. The plaintiff had been barred by the preliminary findings of the Court from proving the terms of a certain partition in support of her claim. As shown above she was entitled to fall back on any other evidence she had in order to prove the essence of her case — that her father died separate and in separate possession of his share and all her request amounted to was the very reasonable one that the Court should frame issue so that she could do so.
8. The decree of the lower Court should be set aside and the case remanded for further trial. The lower Court may not treat the two lists as instruments effecting a partition, but it may use them as expressions of the intentions of the parties concerned at the time these lists were made and in support of any evidence she may have to show that Girwar Singh died in separate possession of property. The Court might enquire into the status of Girwar Singh at his death, and if she then held any of the family property in his own separate right; and it must allow the plaintiff an opportunity to prove that she is entitled to specific items of property. If she is unable to prove the specific items held by her father, she is entitled to demand that the equivalent of his one-third share shall be divided off and given to her. As the trial so far has been obscured by technical considerations it will be in the interests of parties if fresh pleadings are allowed before the issues are framed. The lower Court should also accept any relevant documentary evidence the parties may tender.
9. A refund certificate for the Court-fees in this Court should be issued to the appellant, who Should receive her costs in this Court from the respondents, also all casts incurred so far in the lower Court, except the Court-fees paid on the plaint, which should follow the event.
Hallifax, A.J.C:— The plaintiff is the daughter of Girwar Singh Kurmi, and filed the present suit against two of her father's brothers and the son of another brother who is dead, alleging that her father separated from his brothers before he died and was in separate possession of his share of the family property, but the defendants had taken possession of it after his death and denied her title to it as his heir. She specified the property which, according to her, Girwar Singh owned separately and put in certain documents in support of that allegation. It has been held in the lower Court that these documents, which have not been registered, are instruments of partition and require registration and therefore the plaintiff cannot use them to prove the partition, under Section 49 of the Registration Act and as she is precluded by Section 91 of the Evidence Act from giving any other evidence of it, her suit must be dismissed.
10. It is at the most a subsidiary and unessential part of the plaintiff's case that a partition was made on a certain day and that certain property was then allotted to her father's share. As has been said, her case is that her father separated from his brothers at some time before his death and was at his death in separate possession of certain property which had once been joint family property. Even if the documents cannot be received as evidence of the terms of the partition, that is a proof of what was allotted to Girwar Singh at a partition made at the time of his father's death, the fact that they were made out and signed is undoubtedly evidence, though of course not necessarily conclusive evidence, that a partition was made at that time, that is that there was a separation in status.
11. The correctness of the view that the two documents tendered in evidence are deeds of partition is open to great doubts one appears to be a record of some of the property proposed to the allotted to Girwar Singh at a partition to be made later, and the other a record of the rest of the property allotted to him along with that in the first list in a partition then already made by arbitrators. But if they admitted as evidence of what was allotted to Girwar Singh at the partition, it would still be necessary to prove what property was held by him separately later on, which may differ in some respects from the property mentioned in the lists as allotted or agreed to be allotted to his share. If it does differ, the lists are of little use; if it does not they are not necessary. Anyhow the fact that the documents were drawn up and signed is admissible evidence of a separation in status between Girwar Singh and his brothers, which is all the plaintiff has to prove in order to get, a decree for possession of her father's separate property. If she can prove further that certain property was allotted to her father's share, or merely was held separately by him at his death, she is entitled to get that property. If she marmot prove that then she is entitled to her; father's undivided share in the common property, and she can get that share divided off from the shares belonging to the defendants, as they are in possession of the whole.
12. I agree in thinking that the decree of the lower Court should be set aside and the case remanded for trial, though that trial can hardly be described as “further” as that of the real case has not yet begun. There appears also to be no necessity for any further pleadings. All the facts that either party wishes to allege are on the record, anything further will only add to the mass of legal pleas already there in direct contravention of R. 2 of O. 6 of the Procedure Code. If, however, either party wishes to make a statement of any material fact not already stated on which reliance is placed, this should be allowed. The defendants are responsible for the whole of the time and money already wasted over these infructuous proceedings, and in my opinion they ought to pay the whole of the costs incurred by the plaintiff up till now, except the Court-fees paid on the plaint and the memorandum of appeal; that on the plaint should follow the result of the suit and that on the memorandum of appeal will be refunded in due course.
13. Case remanded.