1. This appeal by defendants 1, 2, 4 and 5 is directed against the judgment and decree dated 31-101974, passed by the Civil Judge, Haveri in R. A. No. 273 of 1971 on his file, dismissing the appeal and confirming the 'judgment and decree dated 3-9-1970, passed by the Munsiff, Ranebennur in L. C. Suit No. 14 of 1964 on his file, decreeing the suit of the plaintiff for 1/3rd share and for partition of the suit, properties by metes and bounds.
2. The plaintiff Mayappa Maradappa Mayannavar filed L. C. Suit No. 14/64 on the file of the Munsiff, Ranebennur for declaration that he had 1/3rd share in the suit properties and for separate possession of the same along with future profits, including the alienations done by the first defendant in favour of defendants 4 and 5. According to him, one Maradappa, the propositus of the family had four sons, viz., Durgappa, Mayappa Nimbappa and Pharmappa, Mayappa is the plaintiff, Durgappa died in about 1956. His sons were defendants 1 and 2, Nimbappa is defendant No. 3, Bharmappa died in about 1943 leaving behind him his widow Chowdawwa. She is not a party to the suit. It appears that her claim was settled in an earlier suit, namely, L.C Suit No. 115/57.
3. The suit was resisted by the defendants. According to them, the suit properties were not joint family properties. They were the acquisition of Durgappa. The plaintiff had no title or interest in them. There was already severance of status in the family long ago. They further contended that even the immoveable properties were divided in the year 1944. They further contested the right of the plaintiff, in challenging the alienations. The trial Court raised the following issues as arising from the pleadings.
(1) Whether defendants prove the partition in all the joint family properties as contended in para 1 of their W.S.?
(2) Does plaintiff prove that the suit properties are joint family properties of plaintiff and defendants 1 to 3?
(3) Does he prove that the suit properties and properties given to Chowdavva, widow of Bharmappa were acquired by joint labour and earning of joint family business and for the benefit of the joint family as contended in para-4 of the plaint and that the same were treated as joint family properties?
(4) Whether defendants prove that the said properties were self-acquired separate properties of defendants 1 to 2's father and grand-father only?
(5) Whether defendants 4, 5 and 6 prove that the alienations in their favour were for legal necessity and for benefit of the joint family and as such binding on plaintiff?
(6) Whether the present suit is barred by res judicata in view of decree in L.C. Suit 115/57 of Ranebennur Civil Judge Court and whether the said decree binds the plaintiff?
(7) Whether the partition effected between defendants 1 to 3 inter se in respect of C. T. S. No. 2759/A is valid and binding on plaintiff?
(8) To what relief's are parties entitled?
4. The trial Court, appreciating the evidence on record, answered Issues 1. 4, 5, and 6 in the negative and Issues 2, 3 and 7 in the affirmative and in that view decreed the suit of the plaintiff with costs. Aggrieved by the said judgment and decree, the defendants went up in appeal before the learned Civil Judge, Haveri in R. A. No. 273/71.
5. The learned Civil Judge, in the course of his judgment, raised the following Pints as arising for his consideration.
(1) Whether the plaintiff proves that the suit properties are the joint family properties?
(2) Whether the defendants prove that there was partition in the joint family and there was partition between the plaintiff and his brothers?
(3) Whether defendants 1, 2 and 3 prove that the suit properties are the self-acquired properties of their father and uncles?
(4) Whether the defendants 4 and 5 prove that the alienation made in their favour by defendants 1 to 3 are for legal necessity?
(5) Whether the suit is hit by Section 11 of C.P.C.?
(6) Whether the partition effected between defendants 1 to 3 in respect of C. T. S. No. 2759/A is valid and binding on the plaintiff?
(7) To what reliefs, the parties are entitled?
6. The learned Civil Judge, reassessing the evidence on record, in the light of the arguments addressed before Um. answered point No. 1 in the affirmative; he answered points Nos. 2, 3, 4, 5 and 6 in the negative and in that view dismissed the appeal, confirming the judgment and decree of the trial Court. Aggrieved by the said judgment and decree, defendants 1, 2, 4, and 5 have come up with the above second appeal before this Court.
7. The learned Advocate appearing for the appellants strenuously urged before me that the Courts below illegally rejected the document dated first Nov., 1944 in to the. He submitted that though it is true that the documents evidencing the partition by metes and bounds requires registration, a document containing the recital of severance of status would not require registration and as such to that extent the document evidencing the severance of status earlier to the year 1944, should have been admitted into evidence and in that view he submitted that the Courts below failed to consider the legal effect of severance of status even earlier to 1944 and the legal impact of it on the acquisitions made by Durgappa subsequent to 1944, namely, in 1948, 1949 and 1954. In that view, he further submitted that the entire approach of the Courts below was legally erroneous and the judgments passed by them became vitiated, As against that, the learned Advocate appearing for the respondents-plaintiff (L. Rs. of the plaintiff) argued supporting the judgment and decree passed by the Court below.
8. The point, therefore, that arises for my consideration in the appeal is: whether is substance in the submission made before me that the judgments and decrees passed concurrently by the Courts below are vitiated because of their illegal approach to the facts of the case.
9. It is true that a document dated 1st November, 1944 was sought to be admitted into evidence by the contending defendants to show that there was already a partition in the family earlier to 1-11-1944. It is no doubt true that the document is styled as 'Vatani Pathra'. The Courts below have refused the admission of this document on the sole ground that the document was not registered. Prima facie, the reasoning appears to be sound but on scrutiny it is seen that the reasoning is partly fallacious. The reason is not far to seek. The term 'partition' is used in common parlance to indicate the partition of the joint family properties by metes and bounds but, it has the other meaning also in law, namely severance of status. So far as severance of status is concerned, though it is recited in a document, such a document does not require registration. It becomes admissible in evidence though not registered. So far as the partition of the suit properties by metes and bounds is concerned if it is recorded in writing, the instrument by which such partition is brought about requires registration and it cannot be admitted into evidence unless it is registered, The document dated 1st Nov., 1944, covers both aspects, namely, it speaks of partition in the sense (of) severance of status of the joint family. It also mentions about the partition of the suit properties by metes and bounds. Hence, it is obvious that the document was admissible in evidence for the purpose of showing that there was severance of status even earlier to 1944 and the family no longer remained an undivided family or as coparcenary.
10. If the proposition requires an authority, it is to be found in the case of Nani Bai v. Gita Bai Kom Ramagunge : 1SCR479 . In that case it is ruled by the Supreme Court inter alia at Para 11 thus:
'Partition in the Mitakshara sense may be only a severance of the joint status of the members of the coparcenary that is to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a coparcenary expresses his individual intention in unequivocal language to separate himself from the rest of the family that effects a partition, so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of S. 17(1)(b), the material portion of which has been quoted above. But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of S. 17(1)(b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport or operate to do any of the things referred to in that section. Hence in so far as the documents referred to above are evidence of partition only in the former sense, they are not compulsorily registerable under S. 17, and would, therefore, not come within the mischief of S. 49 which prohibits the reception into evidence of any document 'affecting immovable property.' It must, therefore, be held that those documents have rightly been received in evidence for that limited purpose.'
11. This proposition has been re iterated in the case, Siromani v. Hemkumar : 3SCR639 , wherein it is stated at para 5 thus:
'Of course, the document is admissible to prove an intention on the part of the coparceners to become divided in status, in other words, to prove that the parties ceased to be joint from the date of the instrument dated Dec. 27, 1943. : 1SCR479 relied upon.'
12. In the present case, in the document w question dated lst Nov., 1944, it is recited thus:
(Matter in Kannada omitted.-Ed.)
Thus, this document makes it clear that it was severance of status of the joint family about 10-12 years prior to first Nov.. 1944. This document, therefore, becomes admissible into evidence, as is ruled by the Supreme Court of India, to show the partition, in the first instance, namely, severance of status. The courts below have illegally eschewed the document from evidence which has obviously caused prejudice to the contending defendants. Since the document itself was rejected, even to show the severance of status in the joint family, the courts below had no occasion to consider the legal effect of severance of status on acquisition of properties made subsequently by Durgappa. Hence, it is manifest that the judgments of the courts below are vitiated and the same cannot be sustained.
13. It may also be mentioned in this context that the learned counsel appearing for the respondents submitted that there was pleading about blending in the written statement. That was also not considered. He further submitted that in the suit filed by Chowdavva, given 1/4th share admitting by implication that she had joint interest in the properties. That aspect was also not considered by the courts below. For these reasons also he submitted that the judgments and decrees of the courts below could not be sustained. Hence they are liable to be set aside.
14. In the result, the appeal is allowed, the judgments and decrees of the courts below are set aside and the suit is sent back to the trial, court with a direction that the trial court shall now admit the aforesaid document for the limited purpose indicated above and shall then proceed to dispose of the case in accordance with law having due advertence to the observations made above. Sent back the concerned records to trial court forthwith. Parties are directed to be present before Trial Court on 4-1-1982 to take further instructions.
15. No Costs.
16. Appeal allowed.