1. The plaintiff's suit for declaration of his title to and possession of a house in Chamarajanagar has been dismissed by the Subordinate Judge, Mysore, and he has come up in appeal. His case is that the site on which the house is built belonged to a Bank in Chamarajanagar now in liquidation and was sold to defendant 1 for Rs. 100 on 25-11-1934; that thereafter defendant 2 constructed the house on the site about 12 years before suit for and on behalf of defendant 1; that defendant 2 was leasing it out to several lessees and that defendant 5 is one of such lessees having entered into possession under a lease deed dated 22-11-1943. Defendant 1 is said to have sold the house to the plaintiff by a sale deed dated 15-3-1947 for Rs. 4,000 and he was compelled to bring this suit as defendant 5 set up title in the house in defendant 4 and is resisting his claim.
2. Defendants 1 and 2 have remained ex parte. Defendant 4 claims to have purchased the property from defendant 3 and leased it to defendant 5. Defendant 3 has pleaded that defendant 2 was his certificated guardian appointed by the District Court, Mysore, that after he attained majority defendant 2 did not furnish accounts to the Court or to himself and, as he was likely to be prosecuted there was a panchayati when the elder brother of defendant 1 and one Sahukar Basavannadevaru of Memballi interceded and at the panchayati it was decided that certain properties including the suit house which had been wrongfully acquired by defendants 1 and 2 out of the minor's estate or from its help should be delivered over to defendant 3 and that they should each retain some other items as a kind of division of the properties movable and immovable which had been acquired with the aid of defendant 3's estate during his minority.
3. The learned Subordinate Judge held that the case set up by the defendants is true and that the plaintiff had not also made out that he had paid consideration for his sale and was not a bona fide purchaser.
4. It is contended before us by Mr. H. Lakshmanaswamy, learned counsel for the appellant, that the partition arrangement relied on by defendant 3 has not been established and that Ex. IX which is termed a palpatti evidencing that division is inadmissible in evidence. The learned Judge has held, and we are inclined to agree with him, that the palpatti does not really evidence a partition which was made under it but merely is a record of a previous partition and that in any event it could be used for the collateral purpose of showing the nature or origin of possession of defendant 3. In this he is fully supported by a decision of this Court in 39 Mys. H. C. R. 813: 12 My L. J. 236 where it has been held that an instrument of partition though inadmissible for want of registration may be received in evidence as a division of status, that such an instrument is also admissible in evidence to prove the nature of possession of the properties comprised therein, that where such a deed is inadmissible for want of registration the parties are not precluded by Section 91 of the Evidence Act from adducing oral evidence of the division. Moreover, EX. IX appears to be more in the nature of an acknowledgment or receipt by the three parties concerned under it, viz., defendants 1 to 3, that they had taken to their custody the properties which had been allotted to each of them by the panchayatdars and is addressed to M. S. Basavannadevaru. It does not even purport to be executed by and between the parties and merely purports to give descriptions of the properties which have been taken by each of them.
5. Mr. Krishnamurthi, learned counsel for the 3rd respondent, has argued that in any event his client rely upon the doctrine of part performance embodied in Section 53A of the Transfer of Property Act to save his possession; and he relies upon a decision in Maneklal v. Hormusji Jamsedji Ginwala & Sons. 1950 S. C. J. 317 where it has been held that retrospective effect can be given to that section. No doubt, in Mysore we have a decision in 51 Mys. H. C. R. 148 (p. B.) to the contrary. But after the Constitution has come into force, by virtue of Article 141 of the Constitution, the law declared by the Supreme Court is to be the law binding on all Courts in the territory of India and it must, therefore, be held that 51 Mys. H. C. R. 148 (F. B.) has ceased to have any force as it is contrary to the decision of the Supreme Court. (After discussing the evidence the judgment proceeded.) The learned Subordinate Judge has discussed the oral and documentary evidence fully in his judgment and it does not appear to be necessary to repeat the reasons he has given for holding that the plaintiff has not made out his case.
6. There is, however, one small matter which has been pressed before us by the appellant. One of the items included in the schedule of costs annexed to the decree of the lower Court as payable by the plaintiff to defendants 3 and 4 is a sum of Rs. 690-4-0 which was collected there by way of duty and penalty on Ex. IX. This is clearly not proper. The plaintiff was no party to that document and was in no way responsible for paying the stamp duty or the penalty for its non-payment. Under Section 29, Mysore Stamp Act, in the case of an instrument of partition the expense of providing the proper stamp is to be borne by the parties thereto in proportion to their respective shares in the whole property partitioned. The liability to make good the duty and penalty on Ex. IX is therefore on defendants 1, 2 and 3. Defendants 3 and 4 can therefore recover from defendants 1 and 2 only the portion of the duty and penalty properly payable by the latter under Section 29. It is represented that subsequent to the passing of the judgment of the lower Court defendant 3 has by means of an application to the Deputy Commissioner got the penalty reduced to some extent. It is of course that reduced amount which will have to be taken into account in assessing the individual liabilities of defendants 1, 2 and 3. The item of Rs. 690-4.0 will therefore be omitted from the schedule of costs as an item recoverable from the plaintiff and there will be a direction in the decree that, defendants 3 and 4, or such of them as may be entitled, may recover the shares of duty and penalty payable by defendants 1 and 2 and that the same will be determined on the execution side.
7. For the above reasons we think that the decision of the learned Subordinate Judge is correct. We accordingly confirm his judgment, and decree subject to this slight modification as above and dismiss this appeal with costs.