P. Jaganmohan Reddy, C.J.
1. Basi Reddy, J., being confronted with having to choose between two Full Bench decisions namely, Ramayya v. Achamma, AIR 1944 Mad 550 (FB) and K. Kanna Reddy v. K. Venkatareddy, : AIR1965AP274 (FB), both binding on him, dealing with the combined effect of Sec. 49(c) of the Registration Act and Section 91 of the Evidence Act, referred the matter to a Division Bench which in turn referred it to a Full Bench.
2. The plaintiff who is the first respondent in the appeal, filed the suit for partition of the joint family property and allotment to him of a half share, the first, second and fourth defendants being entitled to the other half share. Plaintiff's father Chinna Muthyalareddy, the first defendant's father Nagi Reddy and the third defendant's husband Chinna Nagireddy were brothers and were members of a joint Hindu family. Chinna Nagireddy, the husband of the third defendant, died issueless prior to 1937 and so the third defendant is said to be entitled only to maintenance. Plaintiff's father died about 40 years before the date of the suit. First defendant's father died 1 1/2 years prior to the date of the suit, leaving two sons, viz., the first defendant and Chinna Mutyal Reddy who died 10 months before the suit, leaving a widow, the fourth defendant. The second defendant is the widow of first defendant's father. Defendants 5 to 7 were added as parties as they are co-owners of items 14 to 17 of the plaint schedule properties. The second defendant having died pending suit, her daughter, the eighth defendant, has been brought on record as her legal representative.
3. The plaintiff averred that he and defendants 1 to 4 have continued joint and are continuing as members of a joint family, though on account on difference they have been living in separate houses. The plaintiff and the first defendant have each been separately enjoying portions of the joint family properties for convenience of management for the last three or four years. The plaintiff being unwilling to remain joint with other members of the family, wanted to effect partition and to get separate possession, and for that purpose issued a registered notice to the first defendant. But the first defendant in his reply notice, set up a prior partition. It is the plaintiff's case that there was no partition as set up by the first defendant, and even if there was a prior partition. it was vitiated by fraud and misrepresentation and is liable to be set aside.
4. The case of the first defendant, the appellant herein, is that the three brothers, namely, the plaintiff's father, the first defendant's father and the third defendant's husband, had another brother called Pedda Mutyalu Reddy and all the four became divided in status about 50 years ago. Pedda Mutyalu Reddy took his share and went out of the family. The other three brothers got in all about 40 acres of land in which alone the plaintiff can at best ask for partition. He further stated that early in the year 1951 the plaintiff wanted his share to be separated. Accordingly, there was a panchanama at which 30 acres of land were allotted to each of the plaintiff's the first defendant, the husband of the fourth defendant. On 24-4-1951, the parties wanted to prepare lists to denote the properties which have fallen to the share of each in the partition which was effected about a fortnight before. Three lists were accordingly drawn up, and each party was given one list showing the property which had fallen to their respective shares.
5. The lists given to the first defendant and the husband of the fourth defendant were produced. These documents, Exts. B-18 and B-19, are unregistered.
6. The second defendant supported her son. The eighth defendant who was brought on record as the legal representative of the deceased second defendant remained exparte.
7. The third defendant contended that her husband Chinna Nagireddy was entitled to a one-third share in the joint family properties and that she is entitled to inherit that share. But if the Court comes to the conclusion that she is not entitled to a share in the plaint scheduled properties, she prayed that she may be awarded maintenance at Rs. 200 per mensem.
8. The fourth defendant contended that her husband Chinna Mutyalu Reddy died possessed of properties which fell to his share under the arrangement in 1951 and that on 17-12-1956, she executed a relinquishment deed conveying most of the properties allotted to the share of her husband to the first defendant.
9. On these pleadings, the following three main issues are originally framed, viz:-
1. Whether the partition in 1951 between the plaintiff and defendants is true, valid and binding on the plaintiff?
2. Whether the predecessors of the plaintiff and the defendants became divided in status?
3. If so, to what share is the plaintiff entitled and in what properties.
10. The learned Subordinate Judge held on the second issue that only Pedda Mutyalureddy became divided from the family and that the other predecessors of the plaintiff and defendants 1 to 4 did not become divided in status, and continued to be members of a joint Hindu family. On issue, 1 he held that the recitals in Exts. B-18 and B-19 would clearly go to show that on the date on which they were executed the properties were actually divided between the three brothers as stated therein, and consequently the oral evidence of defendant 1 and 2 that Exhibits B-18 and B19 came into existence 2 months after the partition is clearly inadmissible. After pointing out certain discrepancies between the allegations in the written statement and the dates on which Exts. B-18 and B-19 are alleged to have been executed, he held that these unregistered partition deeds are inadmissible in evidence for proving division by metes and bounds as contended on behalf of the defendants, and that being so, the oral evidence of D. Ws. 1 to 9 is also bit by S. 91 of the Evidence Act and is clearly inadmissible. The finding accordingly on this issue was that the partition in 1951 between the plaintiff and the defendants is not true and binding on the plaintiff. On the additional issues 1 and 2 which relate to the claim of the third defendant for a one-third share of maintenance, he held that inasmuch as the third defendant's husband died long prior to 1937, she is entitled only to maintenance, and awarded her maintenance at Rs. 50 per month for life from the date of suit and a family house for her to live in or in the alternative, directed payment of Rs. 2,000 in cash towards her separate residence. On issue 3, he held that all the properties acquired by the first defendant's father after Pedda Mutyalu Reddy went out of the family, are also joint family properties which are liable to be partitioned. In the result, he decreed the plaintiff's suit for a half share in the plaint scheduled properties and also in the house built by the plaintiff in the family vacant site. The first defendant and the eighth defendant were held entitled to 5/12th and 1/12th shares each.
11. The Court below directed each party to bear its own costs. Aggrieved by the judgment and decree, the first defendant has preferred the above appeal. The plaintiff has filed a memorandum of cross-objections, objecting to the disallowance of costs.
12. It may be stated here that Exts. B-18 and B-19, besides being unregistered, were also unstamped. But subsequently they were impounded and stamp duty and penalty were collected on 21-10-1961 and thereafter received in evidence in November 1961.
13. The learned Advocate for the appellant, Sri Ramachandrareddy, contends that there is really no conflict between the two Full Bench decisions, as explained by the latter Full Bench in : AIR1965AP274 (FB) (supra) because in both the Full Bench cases, it was held that non-registration of a document which is required to be registered under Sec. 17(1)(b) of the Registered Act makes the document inadmissible in evidence under Cl. (cf) of Sec. 49 of the Registration Act, even though such a document can be used for a collateral purpose and that oral evidence can be adduced to establish that there was as disruption in status of the joint family. He contends that in such an event, no suit can lie for a partition of the property on the basis that it was still joint family property, when in fact it has ceased to be so after which it is held by the erstwhile members as co-owners.
14. Shri Bhujangarao, on the other hand, contends, firstly, that a partition involves the whole of the process and is one single transaction beginning with division in status and ending with the physical division of the properties by metes and bounds, and consequently, Exts. B-18 and B-19 cannot be looked into even for providing division in status, and even if the documents can be looked into for the purpose of showing that there was severance in status, they cannot be looked into for ascertaining the nature of the possession or the change in the nature of the possession subsequent to the date of those documents: and secondly, that oral evidence is inadmissible even to prove the factum of partition and much less to prose the terms thereof.
15. But before we consider these submissions, it is necessary at the outset to deal with the contention that Exts. B-18 and B-19 have not been proved to have been executed nor does the oral evidence adduced in the case establish that they were in fact executed by the parties as alleged by the defendants. If in fact the execution of these two documents cannot be held to be proved, then oral or other evidence in proof of severance of status and partition of the joint family property by metes and bounds will become admissible. It is, therefore, necessary to consider this question first and give a finding thereon before we proceed to the other questions raised and argued before us. (After considering the evidence in paras 16 and 17, the judgment proceeded-Ed.)
18. There is no reason to doubt the evidence of D. Ws. 2 and 3 in any case who are the attesting witnesses. While we agree with the learned Subordinate Judge that Exhibits B-18 and B-19 were executed by the plaintiff, the first defendant and his younger brother, we cannot accept the evidence of the witnesses for further establishing that the division of the properties had, in fact, taken place two months earlier to the execution of these documents.
19. It now falls for consideration whether Exts. B-18 and B-19 require to be registered, and if so, whether they are admissible in evidence and to what extent
20. We extract below the relevant portions of Exhibit B-18 for ascertaining the nature and effect of that document.
'Partition deed (Vibhaga Dastavoju) entered into on 24-9-1951 by Chinnappareddigari Nagi Reddy's sons (1) Pedda Muthyalu Reddy; (2) Chinna Muthyalu Reddy and (3) Mutyalayya's son venkatareddy, residents of the village of Ramarajupalli.Till now we have been continuing as members of a joint family and as we are now unwilling to continue as such, we have, a s per the advice given by respectable persons, divided the movable and immovable properties belonging to us, into three equal shares and the particulars thereof are as follows:... The document then goes on to divide the agricultural lands and houses, makes adjustments in money for any unequal divisions and divides the debts. It also makes provision for maintenance for junior paternal uncle's wife and ends up in these words: 'To this effect is this deed for partition entered into by us as of consent.'
21. It is seen that Ext. B-18 is not a mere partition list it is a partition deed whereby the parties have divided the moveable and immovable properties into 3 equal shares as stated in the document. It is also described as a partition deed in the document itself. Thus, there cannot be any doubt that the document Exhibit B-18 is a regular partition deed and is, therefore, compulsorily registrable under Sec. 17(1)(b) of the Registration Act. The same objection also applies to the admissibility of Ext. B-19 which is in identical terms. The document which is not produced by the plaintiff is also a counterpart of Exts. B-18 and B-19 containing similar terms. All these three counterparts constitute collectively a partition deed, compulsorily registrable under Section 17(1)(b) of the Registration Act.
22. Under Section 49 of the Registration Act, no document required, by S. 17 to be registered shall be received as evidence of any transaction affecting such property unless it has been registered. The proviso further says that an unregistered document affecting immovable property and required to be registered, may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act or as evidence of any collateral transaction to required to be effected by a registered instrument. (Emphasis ours). The question is whether Exhibits B-18 and B-19 which require to be registered but are not registered, could be received in evidence to establish severance in status of a joint Hindu family, and even apart from the document, whether oral evidence can be adduced under S.91 of the Evidence Act, not only to establish the division in status but also the nature or factum of possession.
23. It has been held in a series of decisions that an unregistered partition deed can be looked into for the purpose of finding out whether there has been severance in status. It is unnecessary to refer to all of them in view of the categorical pronouncement of the Supreme Court in Naini Bai v. Gita Bai, : 1SCR479 . In that case, it was argued that Exts. D-52, D-53 and D-55 were not admissible in evidence even for the limited purpose of showing separation in estate. The question, therefore, was whether those documents purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property' within the meaning of Sec. 17(1)(b) of the Registration Act. It was held that those documents, in so far as they seek to establish a division in status, which can be established by any other evidence than by a registered instrument, could not fall within the mischief of Section 17(1)(b) as it does not affect immovable property. At p. 713, Sinha J. (as he then was ) said:
'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 coparcener 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 Section 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 members of a coparcenary to a separated member having a defined share in the ancestral 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 of any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of Section 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 registrable under Section 1 and would, therefore, not come within the mischief of Section 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.'
24. In Rukmabai v. Laxminarayan, : 2SCR253 , Subbarao J. (as he then was) emphasised this aspect in one sentence, when he said at page 338:
'Doubtless an unregistered document can effect separation in status.'
25. As against this it is suggested that a decision of the Supreme Court in Mst. Kirpal Kuar v. Bachan Singh, : 1SCR950 sounds a different note but we think not. That was not a case of partition of the joint Hindu family property, but was a case where an attempt was made to get round the inhibition contained in Section 49, by seeking to prove the nature of possession subsequent to the document. In that case, Harnam Kaur, the widow of one Ram Ditta, was in possession of the properties of Ram Ditta after his death and had them mutated in her name. She purported to make a gift of half of the lands to her daughter on the occasion of the latter's marriage. Thereafter an attempt was made to obtain a mutation of the settlement records, showing the daughter as the owner of the lands, which due to the objection of the collaterals, was refused. This gave rise to civil and criminal litigation, but subsequently on 6-2-1932, a document was executed by Harnam Kaur whereby she agreed that the lands would belong to her for her life and after her death to her daughter for the latter's life and that none of them would be entitled to sell or mortgage the lands. This document was never registered. In 1939, Harnam Kaur again made a gift, this time of the entire lands to her daughter, and the latter thereafter obtained a mutation of the settlement records showing her as the owner of the lands in the place of Harnam Kaur. The suit was filed by some of the collaterals against Harnam Kaur, her daughter and another for a declaration that the gift of the lands by Harnam Kaur to her daughter and the mortgage of 1936 effected subsequently, were illegal and were not binding on the collaterals who were then reversionary heirs of Ram Ditta. In the suit, Harnam Kaur set up a plea of adverse possession. The plaintiffs contended that even though the agreement of 6-2-1932, though not admissible in evidence in the absence of registration to prove that Harnam Kaur and her daughter had only life estates in the lands, was admissible to show the nature of her possession and that it showed that her possession was not adverse. The High Court held that the agreement of 6-2-1932 was admissible in evidence to prove the nature of Harnam Kaur's possession of the lands though it was not admissible to prove title, as it was not registered, and since it showed that Harnam Kaur's possession was permissible and not adverse the plea of adverse possession fails. Sarkar, J., who spoke for the court observed at p. 203:
'In the present case Harnam Kaur had been in possession before the date of the document and to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession and therefore, to give effect to the agreement contained in it which admittedly cannot be done for want of registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by Section 49 of the Registration Act.'
26. In our view there is nothing in this case which militates against the decisions in : 1SCR479 (supra) and : 2SCR253 (supra) which are authorities for the proposition that an unregistered document can effect a severance in status, and to that extent does not require to be registered under Section 17(1)(b). If as stated by the Supreme Court, the document does not require to be registered under S.17(1)(b) to effect the severance in status, the further question whether it is admissible under S. 49 and if so, to what extent would not arise for consideration, inasmuch as every partition would involve a severance of status though every severance in status need not involve a physical division of properties, which unlike in the case of division of status, in mainly dependent on an agreement between the coparceners.
27. If the documents can be looked into for the purpose of coming to the conclusion that there has been a severance in status and the severance of status is thereby established, the parties thereafter cease to be members of the joint family and hold the property only as co-owners. If authority were needed for this proposition, which is so well established, reference may be made to a decision of the Privy Council in Balakishen Das v. Ram Narayan Sahu, (1903) ILR 30 Cal 738 (PC). It follows therefore that after the severance of status, any suit for partition can be filed by the plaintiff only as a co-owner and not as a member of the joint Hindu family and accordingly the suit filed in the instant case by the plaintiff as a member of the joint family will not be maintainable.
28. Reliance, however is placed on the decision of the Full Bench of the Madras High Court in AIR 1944 Mad 550 (FB) (supra). In that case the facts were the respondent filed a suit for recovery from the brothers of her deceased husband's properties which she alleged had fallen to his share on partition. The properties in the suit admittedly had formed part of the estate of the joint family. The plaintiff's case was that the partition was effected on 1-3-1934 that her husband obtained possession of the properties which were allotted to him and remained in possession until his death on 11-8-1938, that after his death, his brother trespassed on the land and disposed her. It transpired that at the time of partition a document had been drawn up and signed by the parties, though this was denied by the defendants. While the District Munsif held that it merely comprised lists of properties which had been allotted to the respective coparceners and decreed the suit, the Subordinate Judge held that the document did constitute a deed of apportion and required registration but the plaintiff was in law entitled to prove partition by other evidence which he had done. The Full Bench held that a division by metes and bounds took place before the execution of the partition deed, and as the suit property admittedly had belonged to the joint family a change in character must be proved. Having stated thus, the learned Chief Justice observed at page 551:
'As the agreement for partition cannot be proved the Court can only regard the property as still belonging to the joint family' The words emphasised are said to indicate that what the Full Bench laid down was that even though a division in status could be established, a suit can be filed on the basis that the property is still joint family property i.e., that the coparcenary property still existed with rights of survivorship and other incidents of joint family. That this was not the intention of the learned Chief Justice was borne out by the sentence immediately following the one which we have extracted above made with reference to observations of Patanjali Sastri, J., which were as will be pointed out by us presently approved by that Full Bench viz..,
'Moreover, as Patanjali Sastri, J., pointed out, one co-owner cannot maintain a suit for trespass against another co-owner.'
This very Full Bench has also affirmed the view taken in Subbarao v. Mahalakshmamma AIR 1930 Mad 883, by a Bench of that Court that regard can be had to the terms of an unregistered deed of partition when it is merely a question of deciding whether there has been a division of status. Leach, C. J., who delivered the judgment had earlier in a Letters Patent Appeal, approved of the judgment of Patanjali Sastri J., in Veeraghavarao v. Gopalrao, AIR 1942 Mad 125, where the facts were almost identical with the facts considered by the Full Bench. In that case, Patanjali Sastri J., was considering a case where out of 5 brothers two brothers had previously separated their shares in the joint family in a partition in June 1930 and the other three brothers, viz., the appellant, the respondent and one Subbarao, continued joint till 20-5-1932, on which date the properties held by them jointly till then were divided between them under a document marked Ex. A. The learned Judge held this document to require registration as falling within Sec. 17 of the Registration Act, and being unregistered was held to be inadmissible in evidence. It was contended before him that even if the document was inadmissible, it was still open to the Court to take into consideration the subsequent conduct of the parties, and as both the Courts had found that the respondent was in exclusive possession for about two years after the partition till the appellant trespassed upon the suit property in 1934, the decision of the Court below can be supported on the ground of the respondent's possessory title. But this contention, which was based on a decision of Ramesam, J., in Ahobillachariar v. Thulasi Ammal, AIR 1927 Mad 830, was rejected. Patanjali Sastri J., observed, AIR 1942 Mad 125 at p. 126:
'If the partition deed could be used as evidence of only a division in status and could not be relied on to show that the properties there is question were allotted to the share of the plaintiff's husband as held by the learned Judge the position would be that the plaintiff's husband and his brother were tenants in common of the family properties. As pointed out in AIR 1930 Mad 883, the finding that the partition deed was inadmissible to show what property fell to each co-sharer must result in the conclusion that each cosharer enjoyed an undivided share in each item of the properties. In such circumstances even if one co-sharer happened to be in sole enjoyment of a particular piece of the property he could not as it seems to me sue in ejectment if another co-owner disturbed such enjoyment. He could only bring a suit for partition of all the properties owned in common or, according to some decisions, for joint possession with his co-owners.'
In this view, the learned Judge held that the appellant being unable to establish his exclusive title to the property in suit on the basis of its allotment to his share at a valid partition, is not entitled to the relief claimed by him in the suit. The appeal was accordingly allowed and the suit dismissed.
29. It may be noted that the basis upon which it was held that a suit for partition would lie was that the properties were owned in common or that the plaintiff was in joint possession with his co-owners. In other words, the partition deed which can be used in evidence for proving severance in status would have the effect of converting the joint tenancy of the coparceners into a tenancy in common of co-owners. Lelach C. J., while approving the correctness of the view expressed by Patanjali Sastri, J., had used the sentence quoted earlier, upon which an argument destructive of the very emphatic approval of the basis of Patanjali Sastri. J's decision is sought to be based. We are however of opinion that the sentence relied upon by the 1st respondent does not have the meaning sought to be attributed to it. As stated earlier the learned. Chief Justice was pointing out that the plaintiff could not claim the property as belonging to her it having fallen to her husband's share and therefore had to proceed on the footing that the property was not her husband's property. It was in that context as negativing the claim of the plaintiff that the property belongs to her absolutely that the Full Bench remarked that the property still belongs to the joint family. In view of what was has been stated by the Full Bench in that judgment it is difficult to hold that the learned Judges were of opinion that the property was joint family property in spite of the fact that they had earlier held that there was a severance in status. It is for this reason as already pointed out, the learned Chief Justice followed the sentence relied upon by saying that one co-owner cannot maintain a suit against another co-owner.
30. This Full Bench decision, however, has been subsequently understood differently. In some of the decisions, it has been assumed that where division had in fact been effected by an unregistered partition deed and the parties were in possession of the respective shares allotted to them, the partition was to be ignored and the property treated as joint Hindu family property, and a suit for partition was maintainable. Thus a Division Bench of this Court in Nookaraju v. Ramamurthi, AIR 1962 Andh Pra 443 after referring to the several decisions held that the plaintiff represented by his mother, to whom specific items of land were allotted by an unregistered partition deed, could maintain the suit for partition of the properties as if in law there was no valid partition at all.
31. In : AIR1965AP274 (FB) (supra) what the Full Bench had to consider was whether oral evidence was admissible to prove the fact of partition. This Court did not consider whether the document in question itself could be looked into for the purpose of proving severance in status, but having held that oral evidence was admissible to prove the fact of partition, it concluded that in that event the properties would be held by the members of co-owners as such the suit for partition brought on the footing that the property was joint family property was not maintainable. IN the view we have taken as to the true meaning of the sentence in the decision in (AIR 1954 Mad 550) (FB), there does not appear to be any conflict between the two Full Bench decisions. Whether the conclusion that there was severance in status is arrived at by looking into the document as was done in Ramayya's case, AIR 1954 Mad 550 (FB) (supra), or by considering the oral evidence as was done in K. Kanna Reddy's case, : AIR1965AP274 (FB) (Supra), the position is that the erstwhile coparceners hold the property thereafter as co-owners and the suit on the footing that the property is still joint family property would not be maintainable. But as stated above the decision of the Full Bench in Ramayya's case, AIR 1954 Mad 550 (FB) (Supra) has been interpreted as holding that the property is still joint family property and in that view, a conflict may be said to arise between the two Full Bench decisions.
32. In a subsequent case, L.P.A. 44/63 ,D/- 1-10-1965, another Bench of this Court consisting of Satyanarayna Raju C. J., and Kumarayya J., considered these two Full Bench decisions. In the case before them also the partition lists were required to be stamped and registered. They were therefore held to be inadmissible for want of stamp and registration and the controversy turned on the question as to whether it was competent of the plaintiff to bring a suit for partition of the joint family property. On this question, Satyanarayana Raju, C. J. said. 'If therefore the partition list is inadmissible and no other evidence is admissible by reason of Section 91 of the Evidence Act, then the position would be as pointed out by the Full Bench in AIR 1954 Mad 550 (FB), that the property must be held to be still belonging to the joint family and the only method of getting relief is by filing a suit for partition.' AS the learned Chief Justice considered the facts in that case fell within the scope of the Full Bench decision in AIR 1954 Mad 550 (FB) (supra), he held that the property in the suit must be held to be the property of the joint family and the only method of getting relief is for the plaintiff to file a suit for partition, which he had done, and so no exception could be taken to the maintainability of the suit. IN this view, the Bench confirmed the judgment of one of us (Seshachalapathi J.) who held that the suit for partition was maintainable. Before the Bench, it was argued that after the Full Bench judgment in Kanna Reddy's case, : AIR1965AP274 (FB) (Supra) the decision in Ramayya's case, AIR 1954 Mad 550 (FB), was no longer good law. But that contention was rejected because in its view the Full Bench of this Court distinguished the Madras Full Bench in these words:
'In the instant case no attempt is made by the defendant to show that any specified item of immovable property was allotted to him in a partition between him and the plaintiff. If he had made such a claim the circumstances of the partition document being unregistered would have been an insuperable hindrance in his way. Section 91 of the Evidence Act also could not have been successfully called in aid by him because what he seeks to prove would be a term of an unregistered partition deed which comes within the words 'other disposition of property' occurring in that section. But there does not appear to be anything in the Evidence Act or in the Registration Act to prevent him from showing that there was in fact a prior partition between him and the plaintiff, and that consequently, the present suit for a fresh partition is not competent.'
33. It is somewhat surprising that an important judgment of their Lordships of the Supreme Court in : 1SCR479 (supra) which is directly in point, does not appear to have been brought to the notice of the Bench in AIR 1962 Andh Pra 443 (supra) or the Full Bench in Kanna Reddy's case, : AIR1965AP274 (FB) (supra), or in L.P.A. 44/63 (Andh Pra). If the said decision was brought to the notice to the learned Judges who decided those cases we have no doubt that following that decision it would have been held that there was severance in status and the suit by a member should thereafter be filed only in his capacity as a co-owner. It may be observed that in L.P.A. 44/63 (Andh Pra). the suit was actually brought by the plaintiff in the second instance as a co-owner and though the observation of the Court that the property was joint family property, based on the decision of the Full Bench in Ramayya's case, AIR 1954 Mad 550 (FB) (Supra), may not be correct, the actual decision that the suit for partition was maintainable would be open to question.
34. In our view where a partition takes place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can however be looked into for the purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family who from thence onwards, hold it as co-tenants. It is now a well-established principle of Hindu law, as held by their Lordships of the Privy Council and the Supreme Court that for a severance in status, all that is required is a communication to the other members of the joint family of an unequivocal intention to separate see for instance, Suraj Narain v. Iqbal Narain, (1912) 40 Ind App 40 (PC), Garage Bai v. Sadashiv Dundhiraj, AIR 1916 PC 104 and Raghavamma v. Chenchamma, : 2SCR933 , This communication of intention could be done orally or by a notice in writing to the other coparceners, or by other means depending upon the facts and circumstances of the case. If the intention is expressed by reducing the same to writing such a document, though unregistered, is admissible and can be looked into, as long as it is not the source of title of any of the properties which each of the erstwhile coparceners hold as a result of that partition.
35. Sri Bhujangarao, however, sought to contend though faintly, that since partition involves both division in status as well as physical division, it is one transaction and if the terms of the partition cannot be proved by an unregistered document, the division in status cannot also be established. In support of this contention he cited United Bank of India v. Lekharam S. and Co., : AIR1965SC1591 . In that case the defendants created an equitable mortgage to secure advances made by the plaintiff upto the limit of one lakh of rupees as overdraft to carry on their business, and that mortgage was created by the deposit of two title deeds at Calcutta on 11-8-1945. There were letters of authority authorising one another to deposit the title deeds, and in fact one of them by his letter deposited the title deeds. This letter addressed to the Manager of the plaintiff Bank contained the Schedule of documents said to have been deposited. In those circumstances, their Lordships of the Supreme Court held that the letter, upon which reliance was placed as creating a mortgage was not meant to be an integral part of the transaction between the parties and was in fact not intended to create an interest in immovable property, and therefore did not require registration. It was pointed out that the essential requisite for creating a mortgage by deposit of title deeds was an intention to create a security and that it is a contract between the parties to create to mortgage and hence no registered instrument is required under Sec. 59 of the Transfer of Property Act as in other classes of mortgage. At page 1593, it was observed.:
'But if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage.'
It may be noted that a mortgage by deposit of title deeds can be effected both orally or by a deed. Even the creation of the mortgage by a deed would involve the physical deposit, which is also an essential requisite for the creation of a mortgage of this nature. The deposit of title deeds forms an inextricable part of the transaction, whether it is done under an oral contract or by a deed. That is not so in so far as partition of a joint family property is concerned, where a severance in status could be apart from the physical division. While the former does not involve an agreement of the parties the latter does. The case cited, therefore does not assist the contention of the learned Advocate.
36. In the view we have taken the unregistered partition deed comprised in Exs. B-18 and B-19 and the other counter part (which was not produced) though inadmissible in evidence for want of registration, can be looked into for establishing severance in status.
37. The next question for consideration is whether oral evidence is inadmissible by reason of Sec. 91 of the Evidence Act to prove even the fact of partition. It was argued on the strength of Ramratnam v. Paramanand, Air 1946 PC 51, that notwithstanding the rejection of the partition deed as inadmissible in evidence, other evidence may be admissible to prove the details of partition. In that case the plaintiff had sued for partition but the defence was that the parties having separated previously, the plaintiff cannot maintain the suit on the basis that the properties were still joint. The two unstamped and unregistered memoranda which were produced were held inadmissible inevidence for any purpose. As such oral evidence was looked into for deciding the most important question whether partition had been effected before the institution of the suit in December 1939. Their Lordships found that a physical division of much of the joint property in February 1939, was established and accordingly, dismissed the suit except as regards the lands which the defendant admitted to be joint. In Koyatti v. Imbichi Koya, AIR 1946 Mad 534, in view of the above decision of the Privy Council, a doubt was expressed by Somayya J., as to whether the Full Bench decision in AIR 1954 Mad 550 (FB) (supra), requires reconsideration. This doubt of Somayya J., was not shared by Patanjali Sastri J., delivering the judgment of a Division Bench in Subbu Naidu v. Varadarajulu Naidu, AIR 1948 Mad 26. It was pointed out by Patanjali Sastri, J., that the Full Bench was dealing with a suit for ejectment and recovery of possession of specific properties where the plaintiff could succeed only by proving her title. The partition deed whereby those properties had been allotted to her deceased husband's share having been held to be inadmissible for want of registration, she sought to prove such allotment by other evidence in other words, she sought to prove the terms of the partition by means of other evidence. This the Full Bench held she could not do, having regard to Sec. 91 of the Evidence Act. Patanjali Sastri, J., pointed out:
'......... the oral evidence considered by their Lordships was in support of the plea that there having been a previous partition, the suit 'in the present form' i.e., framed as one for partition did not lie. In other words, their Lordships considered the oral evidence to find out whether the fact of a partition prior to the suit was established. The discussion of the evidence also shows that they were considering it only from that point of view. As Section 91 of the Evidence Act excludes oral evidence only in proof of the terms and not of its existence as a fact of a contract, grant or other disposition of property, no reference was made to that section in the judgment nor to the Full Bench decision which related to its applicability.' The Full Bench of this Court in K. Kanna Reddy's case, : AIR1965AP274 (FB) (supra), also took the view that oral evidence is admissible to prove the factum of partition, though it was not admissible to prove the terms of the partition. It is, however unnecessary to consider this question in the view we have taken that the partition deed itself is admissible to prove the severance in status and in view of the severance in status, the suit for partition on the footing that the property is still joint family property is not maintainable, and will have to be dismissed accordingly. This, however, does not preclude, if it is open to the plaintiff from filing a fresh suit for partition of the property as a co-owner nor does it prevent the widow, viz., the third defendant, from filing a suit for her maintenance.
38. The appeal is accordingly allowed and the suit is dismissed as against defendants 1 to 8. In view of the dismissal of the suit, the decree passed in favour of defendants including those who have not appealed, is also set aside. In the circumstances each party will bear his own costs here and in the Court below. The cross-objections are dismissed, but without costs.
39. Appeal allowed.