Norman Macleod, Kt., C.J.
1. The pedigree of the parties in this suit is Met out at page 7. The property in suit originally belonged to two brothers, Bhimaji and Jiwaji who were separate, although this particular property had not been divided by metes and bounds.
2. It is admitted that Jiwaji is branch has an eight annas share in the suit property. Nilkanth, one of the sons of Bhimaji, claims to be entitled to the other half against his brothers, alleging that at a partition between the sons of Bhimaji the half share in the plaint lands was given to his share. It appears that the family had property not only in British India, but also in Kolhapur. An arbitrator was appointed for partition of the family property. He issued an award partitioning the property in Kolhapur, but there is no record as to whether a partition was made of the property in British India. In 1900 the four brothers signed receipts in which they acknowledged having accepted certain portions detailed in the respective receipts of the family property. The plaintiff in 1915 filed this suit against the children of his brothers to obtain his half share in the suit property. He also joined the sons of Jiwaji.
3. The trial Court declared that he was the owner of a half share in the plaint property. In appeal this decree was set aside on the ground that 'these receipts constitute an instrument of partition and in so far as they relate to the property in British India, they required registration, and therefore not being registered, they are inadmissible in evidence.'
4. We have been referred to the decision of the Privy Council in Mahomed Musa v. Aghore Kumar Ganguli (1914) L.R. 42 : 17 Bom. L.R. 420. There, there had been a compromise which purported to extinguish the equity of redemption in certain property. That was not registered, but a decree was passed in the suit between the parties which recognized the compromise. For thirty years the compromise had been acted upon as was proved by the evidence, and I think their Lordships, in holding that the right to redeem the mortgage was extinguished, arrived at their; conclusion not on the deed of compromise which was unregistered, but on the evidence of what had occurred since the compromise was executed. Having found that the parties! had acted under the terms of the compromise for thirty years, they considered that as evidence of what had been done, so that the terms of the compromise were proved not by the document itself but by the actions of the parties after it had been executed. Now if in this case it bad been proved that the four brothers since 1900 had been in separate occupation of the various properties detailed in the four receipts up to the date of the suit, I think that might well be taken as evidence that there had been a partition in 1900 and the Court would have come to the conclusion that there had been a partition without referring to the receipts. But in this case the plaintiff seeks to prove the partition by the evidence of the receipts themselves, and except that there seems to be some evidence that the plaintiff had been in possession of the plaint property until 1903, there is no evidence in the case that in other respects these four brothers acted in conformity with the alleged partition.
5. I think, therefore, that the Assistant Judge was right in coming to the conclusion that these four documents required registration and were therefore inadmissible in evidence, and that the rest of the record was not sufficient to prove that a partition had taken place.
6. I think, therefore, the appeal must be dismissed with costs to respondents Nos. 1, 2, 4 and 6.
7. I also think the appeal must be dismissed with costs.
8. I make one preliminary remark. 1 feel quite certain that their Lordships of the Privy Council in giving judgment in Mahomed Mum's case did not intend either to modify or to limit that part of the enactments of the Indian Legislature which appears as Sections 17 and 49 of the Indian Registration Act; nor do I believe that the Privy Council ever have intended by their judgments to modify or limit that which has been enacted by the Legislature in India. So the effect of Sections 17 and 49 of the Indian Registration Act remains as totally unaffected as before, by anything that is said in the case of Mahomed Musa v. Aghore Kumar Ganguli (1914) L.R. 42 : 17 Bom. L.R. 420.
9. Now the four documents with which we are concerned may be looked at in two ways. They may be taken together and read together as one whole. In that case they constitute an instrument of partition and would be totally ineffectual, because they were not registered. In another way they may be looked at as four individual lists of property, each one signed by one of the four sharers, made after the partition had been effected and made merely to indicate as a matter of mutual convenience what share had fallen to each sharer. If that is the true nature of the documents, they might be of very great importance for the purpose of corroborating or contradicting what witnesses might depose to. They would be useful also as establishing the fact that it was probably understood at the time that particular lands had fallen to particular persons; but they would not in themselves prove a partition. That would have to be done by somebody who had personal knowledge of the partition. So that we are left in this position. If it is sought to prove the fact of the partition by these documents, that cannot be done, because the law of registration prevents it. If it is sought to use them in any other way, they can only be used as subsidiary papers and are of no use whatever I until there is evidence altogether outside them, that the partition was made and was given effect to in some such way as these papers suggest. But that is not proved in this case. I think, therefore, as I began by saying, that the appeal must be dismissed with costs.