1. These are appeals from the decision of the First Class Subordinate Judge, Jalgaon, in two suits of 1931. In both of them the plaintiff sought a declaration of his exclusive title over the lands mentioned in the plaints. Defendant No. 1 in both the suits is the plaintiff's brother and defendants No. 2 in the two suits are two decree-holders who had in execution proceedings got attached and put up to sale the interest of defendant No. 1 in the plaint lands.
2. The learned Subordinate Judge raised several issues and gave a declaration to the plaintiff that he is the sole owner of the lands in suit and that defendant No. 1 has no interest therein whatsoever. Of the issues raised by the learned Subordinate Judge only one has been argued before us, viz. whether plaintiff proves that he is the exclusive owner of the lands in suit. On this point the plaintiff relied on a receipt, exhibit 37, dated January 3, 1913, purporting to have been passed by defendant No. 1 in favour of the plaintiff's father Rayabhan. The learned Subordinate Judge held, in our opinion correctly, that this document, which sets out the details of the alleged partition between Rayabhan and defendant No. 1, was inadmissible in evidence in view of Sections 17 and 49 of the Indian Registration Act to prove the terms of the partition. He held, again correctly in our opinion, that it was admissible in evidence to prove the fact of partition in the legal sense of the term, and that this document being inadmissible to prove the terms of the partition, it was not open to the plaintiff to give any oral evidence as regards the terms of the partition. The learned advocate for the appellant has admitted that the position as stated above is correct in law. Mr. Dixit for the appellant has argued that this position must lead to the inference that the plaintiff and defendant No. 1 and his second brother Tukaram were tenants-in-common with their interests only separated.
3. The evidence as to the fact of partition has been discussed at length by the learned Subordinate Judge. Besides exhibit 37 there is oral evidence to show that after 1913 defendant No. 1 never participated in the enjoyment of the plaint lands, that he lived separate from the plaintiff and Tukaram at Vardi, that he purchased a land at Vardi for Rs. 3,200, that he subsequently sold the land four or five years later and that he had been taking loans from defendant No. 2 in the two suits. The conclusion that has been drawn from all this by the learned Subordinate Judge is that defendant No. 1 became divided in status from the family in 1913, and we see no reason to take a different view on this point.
4. We must, accordingly, regard the fact of the partition between defendant No. 1 on the one hand and the plaintiff and their other brother on the other in 1913 as established by the evidence. That being so, I think the plaintiff can rely on the proposition stated in Mulla's Hindu Law, 8th edn., at 1937 page 399, that when a partition is admitted or proved, the presumption is that all the property wag divided, and that a person alleging that family property in the exclusive possession of one of the members after the partition is joint and is liable to he partitioned, has to prove his case: Kumarappa Chettiar V. Adaikkalam Chetty I.L.R. (1931) Mad. 483. The plaintiff is now found to be in actual possession of all the plaint lands and it seems to us that he can legitimately claim that those lands have come to his share as the result of the partition. It is to be noted that there was a second partition between Tukaram (the third brother) and himself in the year 1923. This has not been denied by the defendants. We can, therefore, take it that the plaintiff is in possession of the plaint lands as the result of the two partitions, as the defendants have not led any evidence to show that any of the plaint lands is held by the plaintiff as joint family property. There is evidence regarding some other land at Vardi that it was kept joint in order to pay the plaintiff's father's debts, but there is no such evidence as regards the plaint lands.
5. The question of ouster was also discussed, but we do not think that there is any evidence in this case of ouster of defendant No. 1 from the plaint lands. We think that the proposition that I have referred to is sufficient, once the partition is admitted, to prove, in the circumstances of this case, that the plaintiff is holding the lands in his own right as the legitimate owner. Though this is not exactly the line of reasoning followed by the learned Subordinate Judge, it confirms his finding and the order that he has passed, and we therefore do not think that we should be justified in interfering with it. The appeals are accordingly dismissed. First Appeal No. 94 of 1933 is dismissed with costs. No order as to costs in First Appeal No. 128 of 1933.
6. I agree that we must confirm the decision of the learned trial Judge though not on the ground of ouster. Ouster was not proved. I would like to refer to the proposition of law in Section 328 of Sir Dinshah Mulla's Hindu Law which is based on a Madras case. Mr. Dixit has conceded this proposition but he distinguishes our present case on the ground that no partition has been proved or could be proved and that the most that can be proved or has been proved is that there was separation in interest in 1913. If this be correct, the learned advocate goes on to say, there is the presumption in his favour that all the property of the family remained undivided and was held thereafter by the members of the family as tenants-in-common. But I cannot agree that Section 17 of the Indian Registration Act debarred the plaintiff from proving that there had been a partition. What he was debarred from proving was that any right in any particular piece of immoveable property had been created by means of the document, exhibit 37, owing to the fact that it was not registered. I can see no objection to the plaintiff being allowed to prove aliunde that in fact the parties had made the partition of the family property, though he could not prove that the lands in suit came to him at that partition.