One Chunilal Jamnadas and his five sons, Vadilal, Jesangbhai, Dahyabhai, Ranchhodlal and Achratlal, were members of a joint and undivided Hindu family. The family had descended from one Govardhandas. Govardhandas had two sons Maniklal and Laldas. Laldas died with-out leaving any issue surviving. Maniklal had two sons Jamnadas and Bolakhi. Bolakhi also died without leaving any issue surviving. The joint family owned considerable moveable and immoveable properties of, the aggregate value of over Rs. 6,00,000. The title deeds in respect of some of these immoveable properties were in the name of Laldas Govardhandas as also in the name of Bo akhi Maniklal. Chunilal Jamnadas was at all relevant times the father and the manager of the joint Hindu family consisting of himself and his five sons. An ancestral business in money-lending and jewellery was carried on in the name of Maniklal Govardhandas. The family had also float-ed a limited company in the name of the Hindustan Oil Mills Company, Ltd., of which Chunilal Jamnadas and Co. were the managing agents, the joint family owning a ten annas share and an outside partner owning a six annas share in that managing agency firm.
This business of managing agents was looked after by Chunilal Jamnadas and Achratlal. Out of the five sons of Chanilal Jamnadas, Vadilal had started his own independent sarafi business in the year 1916. The family, however, continue 1 joint and all the properties, moveable and immoveable, including the above businesses, were owned by them as members of the joint and undivided Hindu family. In October 1920 the parties thought of partitioning the properties of the family. Dahyabhai took over the good-will of the Bombay and Ahmedabad firm of Manekchand Govardhandas with effect from Kartak sud S. Y. 1977 for a consideration of Its. 21,101. On 18-12-1920, i.e., Magsar sud 5 S. Y. 1977 a memo of partition was recorded and signed by the parties. This was, however, a partial partition of the properties belonging to the joint family. Certain properties continued to be joint and certain adjustments of accounts remained to be made, and on 19-4-1922, i.e., Chaitra vad 8 S. Y. 1978, another memo of partition was recorded between the parties. The first memo of partition was signed by Chunilal and his five sons and at the foot of that an endorsement was made by one Kapurchand Gopalji to the effect :
'The partition as above has been made in my presence.'
Ranchhodlal died after this first memo of partition was recorded on 11-12.1921, leaving him surviving his widow Ramlaxmi (plaintiff) and two daughters. When the second memo of partition came to be recorded, the signature of Ranchhodlal could not be obtained and therefore Ramlaxmi, his widow, signed in his place and stead :
'Signet Parekh Ranchhodlal Chunilal Daskhat his widow Bai Ramlaxmi Dahyabhii Daskhat self.'
Even by the time this second memo of partition was recorded certain adjustment remained to be made and Kartak Sud 8 S. Y. 1978 was fixed for the complete working out of the partition. The managing agency firm of Chunilal Jamnadas and Co. appears to have been continued and it continued to manage the affairs of the Hindustan Oil Mills Company, Ltd., though the share in the commission which was enjoyed by the joint family was divided between Chunilal Jamnadas and his five sons in certain proportions. Achratlal was to devote all his attention to the management of this business and he was therefore given four annas more share than the other members of the family by way of his remuneration for the same.
In about February 1923 the plaintiff started living separately in the Chocawala Dhela, referred to hereinafter as a suit property, along with her two daughters, food grains were purchased for her, Repairs were effected to this property, Municipal taxes and insurance premia were paid in regard to the same, various expenses used to be incurred for the vyavahar, i.e. the social and other expenses, and all these were debited in the account of Ranchhodlal which was maintained in the books of account of Manekchand Govardhandas which continued to be written even after 16-12-1920. After Samvat Year 1978 besides the individual accounts of the several members of the family a Majora account was also opened and through this Majora account various adjustments in the accounts of the respective members of the family were made from time to time.
The firm of Chunilal Jamnadas & Co. came into financial difficulties, the affairs of the Hindustan Oil Mills Company, Ltd., were in a bad plight and Chunilal Jamnadas & Co. addressed letters to the Bank of Baroda, Ltd. (defendant), On 19-1-1924, and 11.2-1924, for a loan of RS. 60,000, on equitable mortgage of immoveable properties. These letters were addressed by both Chunilal Jamnadas and Achratlal. The loan was sanctioned on 13.2-1924, a promissory note for Rs. 60,000 was executed by Chunilal Jamnadas and by Achratlal and on 6-3-1924, title deeds of certain immoveable properties including the suit property were handed over by Chunilal Jamnadas to the Bank of Baroda. In so far, however, Chunilal Jamnadas deposited those title deeds with the bank, representing that he was the sole owner of these properties and that they had descended upon him as such. The bank was put upon the inquiry by reason of the fact that some title deeds were in the name of Laldas and some were in the name of Bolakhi Manickchand, and Chunilal Jamnadas in fact made a declaration on a stamp paper on 22-3-1924, to the effect that he was the sole heir of the deceased Bolakhi and Laldas Govardhandas.
It was on the strength of this representation by Chunilal Jamnadas that the bank advanced the sum of RS. 60,000 to the firm of Chunilal Jamnadas & Co. and the security for the repayment of the amount inter alia was immoveable properties which were thus equitably mortgaged by Chunilal Jamnadas himself with the bank. The firm of Chunilal Jamnadas & Co. did not improve their financial position and Achratlal managed to obtain from the bank in about April 1925 the title deeds of two properties out of those which had been thus equitably mortgaged by him with the bank under the pretext that those title deeds were required for the purpose of partition amongst the members of the family. After obtaining those title deeds he created a charge and gave a possessory mortgage of those properties in favour of Thakorlal Chimanlal Munsha for Rs. 17000 on 22-5-1925, and in favour of Shah Sobhagchand Girdhar for Rs. 8000 on 12-4-1926.
Miscellaneous Application No. 211 of 1925 was thereafter filed in the Court of the District Judge at Ahmedabad to take into liquidation the Hindustan Oil Mills Company, Ltd., and an order was made to carry the mills into liquidation. The claim of the Bank as the secured creditors in respect of the properties of the Hindustan Oil Mills Company, Ltd., which were equitably mortgaged was sanctioned by the District Judge. Those properties were realised by the liquidator, payments were made by the liquidator to the bank and there remained due to the bank a sum of RS. 35,742-5.6 out of the loan which had been granted to Chunilal Jamnadas & Co. as aforesaid, inclusive o interest up to 30-8-1928. Chunilal Jamnadas had died on 19-10-1925, and the bank on 7-8-1938, filed a suit for the recovery of this sum of Rs. 35,742-6-6 and realisation of the mortgage security which consisted inter alia, of the suit property against Jesangbhai Chunilal, Dahybhai Chunilal, Achratlal Chunilal and Vadilal Chunilal, the sons of the deceased Chunilal Jamnadas, Bai Mahalaxmi widow of Chunilal Jamnadas and Bai Ramlaxmi the widow of the deceased Ranchhodlal for the realisation of the mortgage security. Jesangbhai, Dahybhai, Achratlal and Vadilal were impleaded as party defendants to the suit as the heirs of Chunilal Jamnadas.
The widow of Chunilal Jamnadas was impleaded because she was the widow, the widow of Ranchhodlal was impleaded because she was residing in the suit property. Prior to the filing of this suit the bank had given registered notices to defendants 1 to 5, i.e. the four sons and widow of Chunilal Jamnadas, to pay up the amount but to no effect, and in the suit which was thus filed for the realisation of the mortgage security the relief which was prayed for was for a decree for recovering the dues of the bank by sale of the houses of the sole ownership, possession and enjoyment of the deceased Chunilal Jamnadas inclusive of the suit property giving to the bank an equitable mortgage and subject to the charges in favour of Thakorlal Chimanlal Munsha and Shah Sobhagchand Girdhar. If there was a deficit found due to the bank after the sale proceeds were realised, the further prayer was for a decree to recover the same from other properties of the deceased Chunilal Jamnadas. In the particulars of the properties which were thus equitably mortgaged the properties were described as having been given in equitable mortgage by Chunilal Jamnadas of his sole possession and enjoyment situated in Sankadi Sheri, Lakda Pole, by depositing these documents and title deeds with the bank.
Bai Ramlaxmi filed a written statement in this suit contending that she was not an heir of the deceased Chunilal Jamnadas, that the suit property was not of the sole ownership, possession and enjoyment of Chunilal Jamnadas, that neither Chunilal Jamnadas nor Achratlal nor anybody else had any right to mortgage it or give it to anybody in any other manner and that therefore the bank did not acquire any interest in the same. A further plea was also taken by Bai Ramlaxmi that a partition of the joint family properties had already been effected on 20-12.1920, and that from that time her husband Ranchhodlal had no property joint with Chunilal Jamnadas or his other sons, that the division by metes and bounds was finished on chaitra vad 8 samvat year 1980, i.e. 19-4-1922, and since then all moveable and immoveable properties which fell to the share of Ranchhodlal were of her sole ownership, possession and enjoyment and neither Chunilal Jamnadas nor Achratlal or anybody else had any right in the same. She, therefore, contended that the bank was not entitled to any relief against her and against the suit property.
The trial Court negatived her contentions and she had to file an appeal against the decision of the trial Court, being Appeal no. 207 of 1931. The appeal came to be heard by Rangnekar Ag. C. J. and Tyabji J. and on 13-7-1936, a judgment was delivered by Rangnekar Ag. C. J. The appeal Court held that even though according to the judgment which was delivered by the learned trial Judge Bai Ramlaxmi had failed to justify her possession, it was difficult to see how she would be one of the persons who would be interested in the equity of redemption or in the mortgage security or against whom the plaintiff-mortgagee would be entitled to ask any relief in the suit.
The decree passed against her by the trial Court was, therefore, set aside and the suit against her was dismissed. The decree passed against the other defendants, i.e. the four sons and the widow of the deceased Chunilal Jamnadas, was allowed to stand, but in place and stead of the decree which had been passed by the lower Court against them which was characterised by the learned Judges as not having been properly drawn up, they passed the usual preliminary mortgage decree in proper form as on an equitable mortgage declaring in the first instance that the properties therein mentioned inclusive of the suit property were equitably mortgaged to the bank by the deceased Chunilal Jamnadas as belonging to him.
The decree absolute for sale was passed and in execution of that decree the bank was declared the purchaser of the suit property at the auction sale as the highest bidder thereof. That auction sale was held some time in August 1941 and the sale certificate was issued to the bank on 7-9-1941. After obtaining the sale certificate the bank wanted to take possession of the property from Bai Ramlaxmi but she obstructed the bank in taking possession thereof, with the result that the bank made an application No. 524 of 1941 under Order 21, Rule 97, Civil P. C., for removing the obstruction. Ramlaxmi contested this application, but the Court held that her possession was not bona fide and ordered that the bank should be placed in possession after removing the obstruction. This order was made by the Court on 18-4-1942, and on 20-4-1942, Ramlaxmi filed/the present suit under Order 21, Rule 103, Civil P. C., for a declaration that the order dated 18-4-1942, was not legal, proper and just and the bank had no right to get possession from her and she had a right or claim to continue in its possession and for further and other reliefs.
In the plaint which she filed in this suit Ramlaxmi, the plaintiff, alleged that her husband Ranchhodlal and herself were in adverse possession within the knowledge of the bank and had also by written assertions claimed exclusive title in the suit property since about 14 years and even before that and so had become owners of the suit property by adverse possession. She further alleged that in 1920 and 1922 A. D. there was a partition in the joint family as a result of which partition the suit property had fallen to the share of her husband Ranchhodlal and so as his heir she had a right of ownership over the same. She thus claimed to be the owner of the property by adverse possession as also by reason of the partition and prayed for the declaration above mentioned against the bank.
The bank filed its written statement in the suit contending that Chunilal Jamnadas and his sons were members of a joint and undivided Hindu family, that Chunilal Jamnadas was the karta and manager of the family, that the suit property was one of the properties belonging to the joint family, that the said Chunilal Jamnadas had mortgaged the same it being joint family property to secure the repayment of the sum which had been advanced by the bank to the joint family business of Chunilal Jamnadas, that the decree which was passed by the trial Court in the suit filed in 1923 (being suit No. 1188 of 1928) was passed on the basis that the suit property being joint family property Chunilal Jamnadas had a right to mortgage it, that the High Court in Appeal no. 207 of 1931 had confirmed the decree against the mortgaged property, that the Bank had in execution of the decree purchased the suit property in auction through the Court and that by reason of the sale certificate issued in its favour it had become the owner of all the right, title and interest of the defendants in suit No. 1188 of 1928 in the suit property and had thus become entitled to get the possession thereof, that the Court hearing the Miscellaneous Application No. 528 of 1941 had after hearing the plaintiff ordered the removal of the obstruction which she had created and that therefore the plaintiff was not entitled to any relief as claimed. The bank further denied the allegations and contentions in regard to adverse possession and partition as they had been put forward by the plaintiff and denied that the plaintiff was entitled to any relief against it.
On these pleadings the lower Court framed the following three issues:
(1) la it proved that there was partition between Chunilal and his son Ranchhod in 1920 as alleged?
(2) If so, is it proved that the suit property had come to the share of the plaintiff's husband by such partition? And
(3) Is it proved that the plaintiff has become the owner of the suit property by continuous and adverse possession for more than 12 years before suit as alleged?
The lower Court after considering the evidence, oral as well as documentary, which was led before it recorded its findings in the negative with regard to each of these three issues. In regard to the memo of partition which was recorded on 16-12-1920, the lower Court was of the opinion that it was a deed of partition and not being registered was inadmissible in evidence. In regard to adverse possession also, the Court held that the bank was claiming as the equitable mortgagee of the suit property and there could be no adverse possession by Ranchhodlal and the plaintiff against the bank. The lower Court consequently dismissed the plaintiff's suit with costs and ordered the memo of partition, which was Exh. 67/1 before it, to be impounded and sent to the Collector for dealing with it according to law, for want of necessary stamp and registration.
The plaintiff appealed to the High Court.
1. His Lordship, after narrating fads and holding that the memo of partition Exh. 57/1 dated 16-12-1920, required registration under Section 17(1), Registration Act and, was, therefore, inadmissible in evidence for want of registration, proceeded:] When this line of attack was not available to the plaintiff, it was sought to be argued that even though the document Exh. 57/1 could not be received as evidence of any transaction affecting the suit property, it would certainly be available to the plaintiff, even though unregistered, as evidence of a collateral transaction not required to be effected by a registered instrument which the proviso to Section 49, Registration Act, for the purpose of proving the fact of partition. It was urged that if in fact a partition had been effected between the members of the joint family on 16-12-1920, there was a severance of joint status between the members of the family. Chunilal Jamnadas then ceased to be the manager or karta of the joint family and to represent the other members of the joint family in all transactions affecting the immoveable properties belonging to the joint family and that therefore when he Croat. ed an equitable mortgage inter alia of the suit property in favour of the bank on 26-3-1924, he had no right or authority to mortgage the right, title and interest of the other members of the joint family in the suit property.
If that was so, the bank would only acquire by reason of the creation of the equitable mortgage in its favour as and by way of security the right, title and interest of Chunilal Jamnadas in the suit property. Whatever right, title and interest the other members of the joint family bad acquired in the suit property as on a severance of joint status would not be affected by any purported dealing therewith by Chunilal Jamnadas and Ranchhodlal and after his death hi3 heir the plaintiff would as a tenant-in-common with the other members of the erstwhile joint family be entitled to possession of the suit property and such possession enjoyed by the plaintiff would be enough to establish her right to relief in this suit.
2. Two objections were, however, urged against this contention winch was put forward on behalf of the plaintiff. The one was that this contention was not set out in the plaint nor was it the subject-matter of any issue nor had it been urged in the 63 grounds of the memo of appeal which had been presented before this Court. It is no doubt true that the plaintiff based her claim merely on the first memo of partition contending that the suit property was allotted exclusively to the share of her deceased husband Ranchhdlal and came to be owned by him and thereafter his heir the plaintiff and that therefore her possession was the pos-session of an owner which could not be disturbed by the order complained against. No alternative plea of this typo was ever thought of by the draftsman of the plaint and it was only for the first time when this appeal was being argued before us that such a plea was sought to be resorted to.
This criticism is no doubt true. When the plaint came to be drafted, the draftsman of the plaint had not thought of this position at all. When the suit came to be heard by the lower Court nobody thought of this position again. The memo of partition was rightly rejected by the Court as inadmissible in evidence for want of registration and the lower Court came to the conclusion that in the absence of she memo of partition the plaintiff could not establish her right to the suit property. The plaintiff's suit was dismissed by the lower Court on that basis, and the main burden of the song in the memo of appeal also was that this memo of partition did not require registration and was therefore wrongly excluded by the Court. Even the arguments before this Court proceeded on this basis that the memo of partition was a record of a past partition. Inspite of ail these circumstances, however, we are of the opinion that it would be open to the plaintiff to rely upon this alternative ground as it would follow as a matter of legal consequence from the proved fact, viz. that there was a partition effected between the members of the joint family on 16-12-1920.
3. We may at this stage as well consider what is the scope of the suit under Order 21, Rule 103, Civil P.C. Order 21, Rule 103 of the Code provides that :
'Any party not being a judgment-debtor against whom an order is made under Rules 98, 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but subject to the result of such suit (if any), the order shall be conclusive.'
The suit is evidently for the purpose of establishing the right which the plaintiff claims to the present possession of the property. This right may be established by the plaintiff in any manner whatever available to him. He may do it by establishing that under the terms of a deed of partition he is entitled to the possession of the property as the sole owner thereof. He may also establish the claim to the present possession of the property in his right as a tenant-in common with the judgment-debtor. He may establish the right to the present possession of the property by any other vestige of title which he may have acquired in that property. The question is what is the plaintiff's claim to the present possession of the property, not whether he is the sole owner of the property. The sole ownership of the poverty as falling to the share of Ranchhodlal by virtue of the partition dated 16-12-1920, was no doubt the only count on which this plea of the plaintiff was sustained in the plaint which she filed. That would not, however, be sufficient to prevent the plaintiff if she could establish her claim to the present possession of the property as a tenant-in-common with the other members of the joint family from doing so, and, in oar opinion, she should not be prevented from urging this contention if it is open to her, provided, however, that it can be taken up by her in this Court even at this late stage without any prejudice to the interest of the bank. That this is the true construction of Order 21, Rule 103, is borne out by a judgment of N.J. Wadia J., reported in Krishnarao v. Ghamnn, 36 Bom. L.R. 1074, where the learned Judge held that :
'The scope of a suit under Rule 103 of Order 21, Civil P.C., filed to contest an order made under either Rule 98 or Rule 99, or Rule 101, is not the determination of the mere question of possession of the parties concerned but the establishment of the right or title by which the plaintiff claims the present possession of the property.'
The learned Judge adopted this as a quotation from the decision in Unni Moidin v. Pocker, 44 Mad. 297. In regard also to the pleadings in the mofussil it has been recognised that they art not always artistically drawn and they should not be construed too strictly. If it is open to the party on the admitted facts to rely upon a particular contention it would be open to the Court to allow it to do so, and we can do no bettor in this behalf than quote the observations of their Lordships of the Privy Council in Karam Chand v. Firm Mian Mir Ahmad Aziz Ahmad, 40 Bom. L.R. 1053.
''The object of pleading is to give fair notice to each party of what his opponent's case is, and, therefore, where a plaint is inartistically drawn and seeks to rest a justifiable claim upon an unjustifiable basis, it cannot, by its form, be said to be prejudicial to the defendant, if the Court, on the deduction from all the documents read together with the oral evidence, decrees the plaintiff's claim.'
These observations of their Lordships of the Privy Council are sufficient warrant for us to allow the plaintiff to take up this alternative plea even at this late stage if we can allow her to do so without any prejudice to the interest of the bank.
4. The other objection which was urged against this contention of the plaintiff was that it would cause great prejudice to the interest of the bank if the plaintiff were allowed to do so. It was urged by Mr. B.G. Thakore that this was not the subject-matter of the pleadings or any issue or the evidence which was led by the plaintiff in support of her claim, and that if this had been pleaded in the first instance in the plaint, the bank would have adduced evidence in this behalf and would have moreover taken no a contention which was available to it under Section 41, T. P. Act. In regard to the bank leading evidence on this point, it may be observed that there is nothing in that contention. Evidence was led on behalf of both the parties in regard to the partition and what the plaintiff is seeking by urging this alternative contention is that even if the memo of partition he not available to her by reason of the want of registration thereof to prove that on a partition of the moveable and immoveable properties be-longing to the joint family the suit property came to the share of her deceased husband Ranchhodlal, the deed of partition should be available to her to prove a collateral transaction of partition, i. e., severance of joint status which the law does not require to be effected by a registered instrument.
Within the terms of the proviso, the fact of partition could be proved though the details of that partition could not be proved by her for want of registration of the memo of partition. That being the position, it could not he urged that any evidence which ought to have been led was not led or was not open to the bank to lead in the Court below. If there was any evidence which would go to contradict the fact of partition, it was certainly open to the bank to have led it in the trial Court. No further evidence remained to be led which it did not load before the Court below by reason of this alternative contention not having been taken up by the plaintiff in her plaint. In regard to the applicability of Section 41, T. P. Act also that plea was open to the bank to take in the lower Court if it had been so advised.
Whether the deceased Ranchhodlal, and after his death his widow the plaintiff, were in possession of the suit property as sole owners thereof or as tenants-in-common with the other members or the erstwhile joint family, the title deed of the suit property was at the relevant date or dates in the possession of Chunilal Jamnadas. No mutation of names had been effected in the Conservancy Register of the Municipality at Ahmedabad right up to 1925 and Chunilal Jamnadas created an equitable mortgage inter alia of the suit property in favour of the bank by representing himself as the sole owner of the suit property. If these circumstances were such as to create any right in the bank under Section 41, T. P. Act, the bank ought to have been advised to plead the same in the written statement which it filed in answer td the plaintiff's claim.
No better or worse right could have been contended for in answer to the plaintiff's claim under Section 41, T. P. Act, by reason of this alternative plea than what was available to the bank in answer to the plaintiff's claim based on the sole ownership in the suit property having been obtained by the deceased Ranchhodlal under the memo of partition dated 16-12-1920. If the bank was not advised to take this plea under Section 41, T. P. Act, in answer to the plaintiff's claim as it stood formulated in the plaint, no prejudice can be caused to the interest of the bank if we allowed the plaintiff to urge the alternative contention mentioned above, proving the fact of partition resulting in the severance of the joint status between the members of the family and the enjoyment of the suit property by her as tenant-in-common with the other members of the erstwhile joint family. In regard to both these objections, therefore, we are of the opinion that they do not avail the bank and we would be right in allowing the plaintiff to urge this alternative contention of here.
5. In regard to this alternative contention of the plaintiff it was, however, urged by Mr. Rule G. Thakore that what was sought to be proved was not permissible to the plaintiff having regard to the proviso to Section 49, Registration Act. Mr. B.G. Thakore contended that not only the terms of the deed of partition could not be proved but also the fact of partition itself could not be proved by the plaintiff. Before going to the authorities which have been cited before us at the bar in regard to this contention, we think that it would be useful to quote the summary of the position in law which has been given in Mulla's Registration Act, Edn. 5, at p. 53, under the heading 'Change of Status.' It is stated there :
'An instrument of partition among members of a joint Hindu family dividing the family properties by metes and bounds requires registration. If it is not registered, it is inadmissible in evidence, having regard to Section 49 to prove the title of any of the parties to the instrument to any particular property, or to prove that any particular property his ceased to be joint. But is it admissible to prove an intention to become divided in status, in other words, to prove that the parties ceased to be joint from the date of the instrument? On this point there is a conflict of opinion, it being held in some cases that it is, and in others that it is not. The former view seems consistent with the decision of the Privy Council in the undernoted case Rajangam Ayyar v. Rajangam Ayyar, 50 Ind. App. 134.'
In the foot note at p. 53 of this commentary where the eases are grouped showing that the documents is admissible to prove an intention to become divided in status, in other words, to prove that the parties ceased to be joint from the date of the instrument, we find noted the case decided by a Division Bench of our High Court in Narmadabai v. Rupsing, 39 Bom. L.R. 1102. The Division Bench there was constituted by Barlee and Sen JJ. and it may be noted that my brother Dixit was counsel for the appellant in that appeal. The contention which was urged by him before the Court prevailed and their Lordships held that an unregistered deed of partition is inadmissible in evidence in view of Sections 17 and 48, Registration Act, to prove the terms of the partition, but it 13 admissible in evidence to prove the fact of partition in the legal sense of the term. Mr. B.G. Thakore, however, drew oar attention to a decision, of a Division Bench of our High Court reported in Rudragouda v. Basangouda, 40 Bom. L.R. 202. The Division Bench there was constituted by Wassoodew and Thakore JJ. and even though it was obiter Thakore J., expressed the following view:
'Memoranda of partition, when unregistered, cannot be allowed to prove the fact of partition or the terms of partition, neither of which is a collateral purpose, nor the fact that a severance in interest was created which also is not a collateral purpose.'
This was an expression of opinion which was contrary to the opinion of Wassoodew J., who observed that:
'The reference to arbitration for the purpose of division of the family property, even if unregistered, can be regarded as constituting proof collateral of the fact that the parties intended to sever.'
Much can be said in favour of the view which was taken by Thakore J. The point, however, which we have got to consider is what is a collateral transaction within the meaning, of the proviso to Section 49, Registration Act. The expression 'collateral' transaction is used not in the sense of an ancillary transaction to a principal transaction or a subsidiary transaction to a main transaction. The root meaning of the word 'collateral' is running together or running on parallel lines. The transaction as recorded would be a particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of the transaction and what may be called a collateral purpose, the fulfilment of that collateral purpose would bring into existence collateral transaction, a transaction which may be said to be a part and parcel of the transaction but nonetheless a transaction which runs together with or on parallel lines with the same.
An obvious illustration of this is the transaction which is recorded in the memo of partition before us. The transaction therein recorded was a transaction of partition of the moveable and immoveable properties belonging to the joint family. These properties were allotted to the shares of the respective members of the family. A partition was in fact effected by this document and that transaction took place under the terms of the document itself. The memo of partition thus required registration, and not being registered could not be admitted in evidence under the terms of Section 49, Registration Act. There wag, however, involved in this transaction itself a collateral transaction, viz., that of the severance of the joint status which transaction by itself did not require to be registered by any law for the time being in force. A severance of joint status could be effected under Hindu law in various modes, one of the modes being an unequivocal expression of an intention to separate. A partition could be effected orally as well as by a written document, and it would be open to a party to prove that there wag a partition or severance of joint status effected between the parties without its being effected by a registered instrument. A partition, i.e., severance of joint status, thus would be a collateral transaction, and would certainly tell within the proviso to Section 49, Registration Act.
The partition of immoveable property belonging to the joint family which requires to be effected by a registered instrument would be inadmissible in evidence under the main provisions of Section 49, Registration Act, but the partition, i. e., the severance of joint status, which is not required to be effected by a registered instrument, would be a collateral transaction, evidence of which would certainly be admissible under the proviso to the section, and the memo of partition which was inadmissible for want of registration would certainly be admissible to prove the fact of such partition. With respect, therefore, we are not inclined to accept the opinion of Thakore J., and would prefer to follow the view expressed in Narmadabai v. Rupsing, which as already observed before, has been approved of and is in accordance with the decision of the Privy Council in Rajangam Ayyar v. Rajangam Ayyar.
6. Mr. B.G. Thakore also drew our attention to a decision of Sen J. sitting as a single Judge reported in Tribhovan Hargavan v. Shankar Desai, 45 Bom. l. It. 866. In that case an unregistered sale deed of property valued at less than Rs. 100 bad been executed and it could not be used in evidence by the party for proving his title to the property. The transfer of property had taken place by delivery of the same to the purchaser and the purchaser sought to prove his title to the property by referring to the unregistered document as explaining the character of the possession thereof by him. It was held that in such a case the sale-deed could not be admitted under the proviso to Section 49, Registration Act, to prove that the delivery was in respect of the sale transaction. He could base his case on the transfer in his favour having taken place by delivery of the property, and it that availed him all well and good, but the nature and character of that possession could not be explained by him by having resort to the unregistered sale-deed. This case so far as it goes is-against the contention of Mr. B.G. Thakore and we do not want to say anything more than this that we accept the ratio which is adopted in Narmadabai v. Rupsing, 39 Bom. L.R. 1102 and the summary of the position in law as it has been given in the passage from Mulla's Registration Act at p. 53 quoted above.
7. It is clear, therefore, from the observations which we have made above that it would be open to the plaintiff in the case before us to rely upon the unregistered memo of partition in order to prove the fact of partition. On a perusal of the memo of partition, it is abundantly clear that the parties to the memo of partition, viz. Chunilal Jamnadas and his five sons, effected the partition of the properties, moveable and immoveable, belonging to the joint family and to the firm of Messrs Manikchand Govardhandas, There is no doubt that some of the properties were left undivided and were to be divided between the parties after 16-12-1929. There is this, however, to be said in favour of the plaintiff that according to the position in Hindu law if once a partition is proved to have been effected between the members of a joint and undivided Hindu family, it would be a severance of the joint status between the members of the family, and in the absence of any proof to the contrary it would be a partition which would be complete both as regards the persons as well as the properties. That is the presumption in Hindu law which may be rebutted no doubt, but the burden of rebutting it is on the party negativing the contention.
If regard be had to the fact that on 16-12-1920, Chunilal Jamnadas the father and his five sons in the presence of Kapurchand Gopalji arrived at a partition of the properties, moveable and immoveable, belonging to the joint family detailed in the first memo of partition and appended their signatures thereto in token thereof, it is sufficient to establish that there was severance of joint family status between them and a partition was thus effected between them. The fact of the partition is thus proved by this memo of partition even though it is not registered in accordance with the provisions of Section 17(1), Registration Act, and oven though it is not available to the plaintiff to prove that the suit property in fact was allotted to the share of her deceased husband Ranchhodlal as the property of his sole ownership.
[The rest of the judgment is not material to the report.]
8. [After dealing with points not material to the report the judgment proceeded.]
9. The second question argued is more important. It is argued by Mr. S.M. Shah that the memo of partition, Ex. 57/1, evidences a record of a past partition and so it does not require registration. He says that if he fails in that submission, he would contend, in the alternative, that the memo of partition is nevertheless admissible for the purpose of proving the fact of partition. Mr. R.G. Thakore, on the other hand, contends that the memo of partition, EX. 57/1, is not good enough either for the first or the second of the two purposes. It was suggested by Mr. R.G. Thakore that the memo of partition Ex. 57/1, must have been brought into existence some time after the year 1925. It was said that the memo of partition was not produced in the suit of 1938. It is, however, to be noted that the existence of this memo of partition prior to 1925 receives support from the entries made in the books of account.
These entries have been referred to by my learned brother and they were all made prior to 1924. The evidence of Jesangbhai Chunilal is that he wrote out the memo, EX. 57/1, and the parties who have appended their signatures to the memo, all of them, signed in his presence. The conclusion is inevitable that the memo was executed as described in the memo and that the memo was in existence prior to 1924. A fair reading of the memo of partition shows that it is not a record of a past transaction. It is a document which would properly fall within Section 17(1). Registration Act, and if it is not registered, then it cannot affect immoveable property comprised in the memo. I, therefore, agree with my learned brother in holding that this memo of partition being unregistered cannot be received in evidence for the purpose of showing that the suit property fell to the share of Ranchhodlal at the partition in the year 1920.
(10). It then remains to consider the alternative submission urged by Mr. S.M. Shah and repelled by Mr. R.G. Thakore. Now, under Hindu law, a partition may take place in one of two ways Partition may be as to separation in status and partition may be separation in estate, i.e. division by metes and bounds. To the extent that this document bag been sought to be used for the purpose of showing partition of the latter kind, it is evident that the memo of partition cannot be received in evidence having regard to Section 49, Registration Act, hut I am not prepared to accede to the argument urged by Mr. R.G. Thakore that the memo of partition cannot be received in evidence for the purpose of proving the fact of the partition. So far as material Section 49, Registration Act provides that :
'No document required by Section 17....to be registered shall-
(1) affect any immoveable property comprised therein, or...
(c) be received as evidence of any transaction affecting such property... .. unless it has been registered.'
So that what Section 49 prohibits is the reception of an unregistered document for the purpose of proving the document as affecting immoveable property. There is, however, to Section 49 a proviso, and the proviso, as far as material, says that:
'Profiled that an unregistered document affecting immoveable property and required by this Act ...to be regsitered may be received us evidence......of any collateral transaction not required to be effected by registered instrument.'
Mr. B.G. Thakore argued that Section 91, Evidence Act, was in the plaintiff's way. It seems to me, however, that for the limited purpose for which the unregistered memo of partition is admissible, it does not offend Section 91, Evidence Act. Section 91 speaks of exclusion of oral by documentary evidence and what Section 91 prohibits is the proof of the terms o a document by oral evidence where a document is of the description mentioned in Section 91. Therefore, if adornment properly falls within the terms of Section 91, then the only evidence which can be given in proof of the terms of the document is the document itself and no oral evidence can be given to prove the terms of the document. 1 am not, therefore, impressed by the contention that Section 91 is really any bar. Mr. S.M. Shah has not urged, and could not urge, that he would ask us to look at the unregistered memo of partition for the purpose of proving the terms o the partition.
11. The question, however, remains whether the unregistered memo of partition cannot be received as evidence of any collateral transaction not required to he effected by a registered instrument. The expression 'transaction' is not defined in the Indian Registration Act. I think it would be difficult to give a precise definition of the expression 'transaction'. But it is to be noted that Section 49 does not say that an unregistered document which requires to be registered shall not at all be received in evidence. All that it says is that it cannot be received in evidence as affecting immoveable property, and as the proviso shows, it can ho received as evidence of any collateral transaction not required to be effected by a registered instrument. Now, separation instates does not require to be evidenced by a registered document. Separation in states is a matter of individual volition and can be expressed by a notice given by one member of the family to another, or it can be expressed by conduct. It has not been suggested, so far as I am aware, that a transaction in the shape of separation in status is ever required to be effected by a registered instrument.
(12) The question then arises whether the fact of partition cannot be proved by looking at the unregistered memo of partition. When the unregistered memo of partition is admissible in order to be looked at for the purpose of proving the fact of partition, one does not endeavour to find out the terms of partition. The terms of partition are different from the partition which in law takes place by way of separation in the status between the members of the family. In my opinion, therefore, an unregistered memo of partition, such as the one in the present ease, can be received as evidence of the collateral transaction in the shape of proving the fact of partition. It may be, that this method of looking at the document may indirectly affect immoveable property comprised therein. But that is not the same thing a3 proving the terms of the partition.
When once it is established that under Hindu law a partition may take place in one of two ways, and if the second kind of partition cannot be proved because of want of registration, I do not gee any valid ground foe holding that partition in the sense of separation in status cannot be proved by reference to this document. It is true that this is an arguable question. Two views are possible and there is authority in support of either of the two views. But I think, on the whole, the better view is the one which has been suggested by my learned brother, and at any rate, this view has a good deal of authority in support as against the other view which seems to have little authority in its favour. I think the view taken in Narmadabai v. Rupsing, 39 Bom. L.R. 1102 and the opinion expressed by Wasaoodew J. in Rudragouda v. Basangouda. 40 Bom. L.R. 202 are correct and the contrary opinion expressed by Thakore J. in the latter case is, with respect, not correct.
13. For all these reasons I agree in the order prop wed by my learned brother.
14. Appeal allowed.