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Kachubhai BIn Gulabchand and anr. Vs. Krishnabai Kom Babaji - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom635
AppellantKachubhai BIn Gulabchand and anr.
RespondentKrishnabai Kom Babaji
Excerpt:
evidence - act i of 1872, section 91--registration--practice. - .....anterior to the mortgage, the house had been allotted. in support of that case she produced a deed of partition, dated the 19th march 1867, which appears to be a genuine instrument, but is unregistered. the subordinate judge and the district judge concur in holding that deed to be inadmissible in evidence, and that secondary evidence of the partition is excluded by section 91 of the indian evidence act (i of 1872). the deed speaks of the bulk of the family property as having been divided two or three years previously to its date, but recites that there remained undivided three houses, and it then proceeds to state that those three houses were on that day (i.e., the 19th march 1867), divided between the three brothers, chimnaji, narayan, and babaji, and that the house now in dispute.....
Judgment:

Michael Westropp, C.J.

1. In this case the plaintiff Krishnabai seeks to eject the defendant Harakchand from a house which he purchased under a decree for sale thereof in a suit brought by the defendant Kachubhai on a mortgage, dated 27th August 1872, executed to him by Chimnaji, a brother of the plaintiff's deceased husband, Babaji. The plaintiff claimed title through Babaji, to whom she alleged that, on a partition anterior to the mortgage, the house had been allotted. In support of that case she produced a deed of partition, dated the 19th March 1867, which appears to be a genuine instrument, but is unregistered. The Subordinate Judge and the District Judge concur in holding that deed to be inadmissible in evidence, and that secondary evidence of the partition is excluded by Section 91 of the Indian Evidence Act (I of 1872). The deed speaks of the bulk of the family property as having been divided two or three years previously to its date, but recites that there remained undivided three houses, and it then proceeds to state that those three houses were on that day (i.e., the 19th March 1867), divided between the three brothers, Chimnaji, Narayan, and Babaji, and that the house now in dispute was the one allotted to Babaji. Although that deed most certainly would not exclude secondary evidence of the partition of the bulk of the family property, which it treated as having been divided two or three years previously, and cannot be regarded as disposing of or at all dealing with that portion of the family property, yet it did affect to dispose of the three houses, by way of partition, made on the day of its execution, and, therefore, under Section 91 of the Indian Evidence Act, rendered secondary evidence of its contents inadmissible. So far, and in regarding the deed itself as inadmissible for want of registration, we concur with both the Subordinate Judge and the District Judge. The Subordinate Judge under these circumstances rightly, as we think, held that the plaintiff could not sustain her suit. But the District Judge, notwithstanding his ruling as to the inadmissibility of the deed of partition and of secondary evidence of it, proceeded, as he said upon the evidence, to hold that the house was the house of Babaji and not of Chimnaji, and, therefore, that the plaintiff was entitled to recover it. Having regard to his previous ruling that the partition-deed and secondary evidence of it were inadmissible, we must deem the District Judge as holding that, irrespectively of partition, Babaji was entitled to the house. That, however, was making a totally different case for the plaintiff from that which she alleged for herself. She asserted a title founded on partition. The Judge conjectured and found a title irrespective of partition. This, we think, he was not at liberty to do. His judgment seems to have been a benevolent attempt on his part to discover a path for the bereaved plaintiff out of the provisions of Section 91 of the Indian Evidence Act, and to relieve her from the consequences of the neglect of her husband to register the deed. We must reverse his decree, and restore that of the Subordinate Judge, The plaintiff must: pay the costs of the suit and of the regular appeal. The parties, respectively, must bear their own costs of the special appeal.


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