Gopalakrishanan Nair, J.
(1) This is an appeal from the Judgment of the Subordinate Judge at Eluru dismissing a suit for partition instituted by the plaintiff-appellant. The plaintiff claimed that he and his son, the defendant, constituted a joint Hindu family and that the movable and the immovable properties described in the plaint A, B, and C Schedules were coparcenary properties . He stated, however, that on 22-5-1958, the defendant coerced him to sign a document which purported to be a deed of partition of the joint family properties. This documents was written by D. W. 1, the karnam of the village. In spite of plaintiff's protests, his son forced him to sign it. This took place in the presence of the Karnam and the plaintiff's son-in-law. The plaintiff never agreed to the partition and the document which he was coerced to sign is not binding on him. Subsequently, the plaintiff was made to endorse in favour of the defendant, the promissory notes mentioned in the Plaint C. Schedule. This also was repudiated by the plaintiff as invalid and devoid of legal effect. Besides, the document of partition was totally invalid for want of registration. For these reasons, the plaintiff claimed that the family continued to be joint and possessed of the properties in the suit. He, therefore, asked for a partition of the properties into two equal shares and allotment of one such share to him.
(2) The defendant denied many of the allegations in the plaint. According to him, the plaintiff willingly and voluntary effected a partition of the joint family properties and caused D. W. 1 the karnam, to drew up a partition deed allotting specific items of properties of each of the two coparceners. Actual possession of their respective shares was also taken by the plaintiff and the defendant. Ever since, the plaintiff and the defendant have been in separate possession and exclusive enjoyment of their respective shares of the properties and each has been paying separately land revenue on his share. The defendant sold some specified items of land which were allotted to his share. H also executed a deed of exchange in respect of another item. The promissory notes mentioned in the plaint C Schedule were made over to him by the plaintiff as part of an out and out partition between them. The imputation of coercion, compulsion or pressure made by the plaintiff was denied as false. The defendant contended that the suit itself was not maintainable because it sought a second partition of the properties which had been previously partitioned in May, 1958 by metes and bounds.
(3) The learned Subordinate Judge framed the Following three important issues :
1. ' Whether the document dated 22-5-1958 relating to partition between the plaintiff between the plaintiff and the defendant and the endorsements of transfer on the promissory notes were executed by the plaintiff under coercion?
2. Whether partition in May, 1958 set up by the defendants is true, valid and binding on the plaintiff?
It is not necessary to refer to the other issues which are of on moment in this appeal.
(4) The learned Subordinate Judge found issue 1 clearly against the plaintiff. On issue No. 2 he recorded a findings hat a partition did in fact take place in May 1958, between the plaintiff and the defendant. On the third issue, he held that the suit for partition was not maintainable in view of the factum of prior partition of May, 1958. He considered that the circumstance of the document of partition not being registered did not preclude proof of the factum of prior partition by other evidence de hors the partition document. He therefore dismissed the suit, and the plaintiff has appealed.
(5) When the appeal came up for hearing before a Division Bench of this Court, the appellant's learned counsel submitted that a decision of a Division Bench of the Madras High court in Subbu Naidu v. Varadarajulu Naidu, (1947) 1 Mad LJ 90 : (AIR 1948 Mad 26) and that of another Division Bench of this court in Nookaraju v. Ramamurthi, (1962) 1. Andh WR 230 : (AIR 1962 Andh Pra 443) were in contact on a question which directly arose for determination in the present appeal. The case has, therefore, been placed before this full Bench.
(6) The question for decision relates to the bearing and effect of Secs. 17(b) and 49 of the Registration Act and Sec 91. of the Evidence Act on the present case. For this purpose, we shall take the findings of fact reached by the Court below as correct. These findings show that there was a compete partition of the joint family properties between the plaintiff and the defendant in May, 1958. A document of partition was also drawn up and signed by them to evidence this partition. Specific properties by metes and bounds were allotted to each of the sharers under it. It was, however, not registered although Sec. 17(b) of the Registration Act required it to be registered. It was a non-testamentary instrument which purported or operated to create or declare right, tittle or interest in immovable property of the value of Rs. 100/- and upwards. The effect of non-registration of such a document is enacted in Sec 49 of the Registration Act which says that the document shall not 'affect any immovable property comprised therein' and shall not be 'received as evidence of any transaction affect on'. A document which is required to be registered and has not been registered shall not have any effect on the immovable property comprised in it.
The effect which is contemplated by Sec. 49(a) of the Registration Act must necessarily bear, in the case of a document falling under Sec. 17(b) on the creation, declaration, assignment, limitation or extinguishment of any right, title in or to immoveable property included in that document. In other words, non-registered under Sec. 17(b) will not avail to create, declare, assign, limit or extinguish any right, title or interest in or to the immovable property comprised in the document. In short, the document will be ineffectual to achieve the purpose for which it was brought into being. The effect of Sec. 49(a) does not goo further than this.
'The Indian Registration Act unlike the Transfer of Property Act strikes only at document and not at transactions'. As the Privy Council has pointed out in M. E. Moolla and sons Ltd. v. Official Assignee, Rangoon, ILR 14 Rang. 400 : (AIR 1936 PC 230 ), ' the provisions of the Registration Act by themselves would not operate to render invalid a mere oral sale. ' In the same way ' the Indian Registration Act does not require that a transaction affecting immovable properties should be carried out by a registered document.' vide, Panchapagesa v. Kalyanasundaram, : AIR1957Mad472 .
(7) One can conceive of cases where a document may relate to or may have indirectly to do with immovable property or considerable value does not purport or operate to create, declare, assign, limit or extinguish any right, title or interest in that property. Therefore, the circumstances that a document relates to immovable property of a value of Rs. 100/- or more, does not necessarily make the document one which 'affects' that property within the meaning of Sec. 49(a) of the Registration Act. The meaning and scope of this section has to be understood in the light of the nature of the document contemplated by Sec. 17.
(8) Clause (c) of Sec. 49 of the Registration Act says that a document falling under Sec. 17 which is not registered shall not be received as evidence of any transaction affecting the immovable property comprised in it. The word ' affect ' in both clauses (a) and (c) must be assigned the same meaning. The words 'transaction affecting such property' in cl. (c) must be understood in the background of Sec. 17 and not in isolation from it. Vide Saraswatamma v. Paddayya, ILR 46 Mad 349 : (AIR 1923 Mad 297) and Kanjee and Mooljee Bros. v. Shanmugam Pillai, ILR 56 Mad 169 (175) : (AIR 1932 Mad 734 (737) ). It is the particular nature and content of a document which require it to be registered under Sec. 17 and which also bring it within the mischief of Sec. 49 for want of registration. What the document seeks to achieve in regard to right, title or interest in immovable property largely determines the scope of the 'transaction' in relation to that document. If a document of partition allots specific immovable properties by metes and bounds to the several sharers, it will be a case of creating or declaring right, title, or interest in those specific properties within the meaning of Sec. 17(b), and the 'transaction affecting such property' will be the allotment of specific properties and the declaration of separate and exclusive right, title and interest in them in favour of the different sharers. If the document of partition is not registered, Cl. (c) of Sec. 49 prohibits its reception as evidence of that transaction.
(9) The unregistered partition deed in the instant case cannot, therefore, be received as evidence of the separate allotment of and declaration of exclusive right and title to specific items of properties in favour of the plaintiff or the defendant. It is perhaps well to repeat here that the ban of Cl. (c) of Sec. 49 is against the reception of the unregistered document as evidence. It does not prohibit the reception of any other evidence of the transaction. But Sec. 91 of the Evidence Act steps in here and imposes a prohibition. It enacts, that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a of property, have been reduced to the form of a document, no evidence shall given in proof of the terms of such contract, grant or other dispositon of property, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act.
It will be seen that the prohibition enacted by this section is limited in scope. it relates only to the giving of other evidence ' in proof of the terms of such contract, grant or other disposition of property.' There is an area which is not covered by Sec. 49(c) of the Registration Act and Sec. 91. of the Evidence Act. Section 49(c) excludes from evidence the unregistered document, section 91 precludes the proof of only the terms of the contract, grant or other disposition of property. If the unregistered document is not to be relied on and if the terms of the disposition of property embodied in that document are not sought to be proved by other evidence , the bar of neither of these sections will come into effect. It is useful in this connection to read the following explanation 3 to Sec 91 of the Evidence act.
'The statement , in any document whatever, of a fact other than the facts other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.'
It can scarcely admit of doubt that the phrase 'facts referred to in this section' occurring in this Explanation means 'the terms of such contract, grant or other disposition of property' mentioned in Sec. 91.
(10) The question now is whether in view of the unregistered document of partition of May, 1958, the defendant can be permitted to prove the factum of a prior partition by oral and other documentary evidence. The Court below has held in favour of the defendant on this point. The learned counsel for the plaintiff-appellant. earnestly challenges the correctness of that view. According to him. the existence of an unregistered partition deed precludes proof of a prior partition between the parties. His argument in that Sec. 49(c) of the Registration Act put the unregistered document out of court. He contends that Sec. 91 of the Evidence Act cannot help the defendant because the fact of partition itself is a term of the unregistered partition deed. According to him, the position in the eye of law is that the properties continue to remain joint and a partition suit is therefore maintainable. For this proposition, he relies mainly on a full Bench decision of the Madras High Court in Ramayya v. Achamma, (1944) 2 Mad LJ 164 : (AIR 1944 Mad 550) (FB).
But this decision does not appear to govern a case like the present. There, the plaintiff claimed title to certain specified items of land on the strength of the title obtained by her deceased husband under a partition document. But the document of partition was unregistered. Therefore her right or title could not founded on it. What is more, the allotment of the particular items of land was one of the terms of the unregistered partition deed. Therefore Sec. 91 of the Evidence Act stood in her way in proving any independent evidence that the specified items of properties had been allotted to her husband in a family partition. It was in those circumstances that the Full Bench held that the plaintiff was not entitled to a decree in ejectment of the trespassers who were the other members of the erstwhile joint family. 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 ways.
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 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. The Full Bench decision in ( 1944) 2 Mad LJ 164 : (AIR 1944 Mad 550 (FB) ) (Supra) does not therefore help the plaintiff-appellant. The decision of Patanjali Sastri, J. in Veeraragava Rao v. Gopala Rao, (1941) 2 Mad LJ 707 : (AIR 1942 Mad 125 ) Was approved by the Full Bench in (1944) 2 Mad LJ 164 : (AIR 1944 Mad 550 FB ). As observed by the Full Bench, the facts in 1941 2 Mad LJ 707 : (AIR 1942 Mad 125 ) were almost identical with the facts of the case before them. It is therefore not necessary to deal with (1941) 2 Mad LJ 707 : (AIR 1942 Mad 125 ) separately, for the observations made with reference to the Full Bench decision apply to it also.
(11) The view expressed by Kumaraswami Sastri, J., sitting with Venkatasubba Rao, J., in Ramu Chetty v. Panchammal 1926 Mad WITNESS 45 : AIR 1926 Mad 402 was expressly disapproved by the Full Bench in (1944) 2 Mad LJ 164 : (AIR 1944 Mad 550 FB). This circumstance is relied upon by the learned counsel for the appellant. But it does not assist him in any way. The following passage from the judgment of Kumaraswami Sastri, J., in 1926 Mad WN 45 : AIR 1926 mad 402 will make this clear.
'I do not see why the evidence as regards the conduct of the parties in their dealings with each other and with regard to specific items of property should not coupled with the findings of a division of status, be used and relied upon to show that certain properties which the plaintiff claims are not in wrongful possession of the defendant but belonged to the defendant's husband . . . . . . . '
(12) This also was a case where specific items of properties were claimed to have been obtained by the plaintiff in a family partition which was embodied in an unregistered document. The suit was for a declaration of the plaintiff's right to the items described in schedules A, B and C of the plaint, for delivery of possession and for injunction. What the Full Bench disapproved was the view that by oral evidence , right and title to specific items of properties allotted under an unregistered partition deed could be established. This case is, therefore, far removed from the facts of the present case.
(13) The learned counsel for the defendant respondent has placed strong reliance on a decision of the Privy Council in Ram Rattan v, Parma Nand, (1946) 1 Mad LJ 295 : (AIR 1946 PC 51). The salient facts of that case are that in a suit by one Hindu brothers against another for partition it was pleaded in defence that there has already been a partition, and two unstamped memoranda showing the details of the partition were relied upon to corroborate the oral evidence as to prior partition. The bulk of the Joint properties was divided by metes and bounds and only a small portion of immovable properties was kept joint. Their Lordships of the Judicial Committee held that the unstamped memoranda showing the details of the partition by metes and bounds were wholly inadmissible because it could not be received in evidence 'for any purposes' under Sec. 35 of the Stamp Act. These memoranda were also unregistered and therefore came under the ban of Sec. 49(c) of the Registration Act, also. The Judicial Committee said :
' It is unnecessary to consider the effect of this section (Sec. 49, Registration Act) because the documents in question not being stamped, the wider prohibition contained in the Stamp Act applies . . . . . .'
No regard was therefore paid to the unstamped and unregistered Memoranda of partition. But their Lordships pointed out that the important question is whether partition had been effected before the institution of the suit of December, 1939.' The case in defence was that a complete partition had taken place in February, 1939. oral as well as documentary evidence was led in support of this plea. Dealings with this evidence , the Board said :
' Two witnesses, Das Mal and Sain Das, gave evidence of a partition of the joint property in February, 1939, at which the witnesses were present, and of the parties taking possession of the property allotted to them. This evidence was supported by evidence that soon after February 1939, some land revenue was paid separately by respondent, though previously it had been paid by both parties jointly; by evidence of two witnesses who stated that they had cultivated land belonging jointly to the parties, but that since April, 1939, they had paid the produce separates returns for income tax . Their Lordships think it unnecessary to discuss the evidence in further detail since this was done in both the lower Courts. In their Lordships view the evidence establishes a physical division of much of the joint property in February, 1939, and this is only consistent with a severance in the status of the parties having taken place'.
The suit for partition was therefore dismissed and relief was granted only in respect of the properties which admittedly remained joint. This decision shows beyond possible doubt that in spite of an antecedent allotment of specific properties by metes and bounds being embodied in an unstamped and unregistered document, other evidence in proof of the factum of partition can be adduced and the plaintiff mot-suited on such proof.
(14) After the above pronouncement of the privy Council, Somayya J., in Koyatti v. Imbichi Koya, (1946) 1 Mad LJ 454 (456) : (AIR 1946 Mad 534 (536) ) doubted the correctness of the Full Bench decision in (1944) 2 Mad LJ 164 : (AIR 1944 Mad 550 FB) (Supra). He observed :
' The Judicial Committee did not refer to the difficulty of admitting other evidence when the transaction was admittedly reduced to writing and that writing was inadmissible either under Sec. 35 of the Stamp Act or under Sec. 35 of the Stamp Act or under Secs. 17 and 49 of the registration act. But there is no doubt that the Judicial committee had no difficulty in finding a partition on other evidence . But whether other evidence is admissible to prove the details of the partition is still open to doubt. It is not clear whether oral evidence was accepted only if proof of the division in status or to prove the details of the partitions. when the question directly arises hereafter in this Court, we may have no consider whether the Full Bench decision in 1944 2 Mad LJ 164 : ( AIR 1944 mad 550 FB ), is good law after the decision of the Judicial Committee.
In a later decision in (1947) 1 Mad LJ 90 : (AIR 1948 Mad 26), a division Bench of the Madras High Court consisting of Patanjali Sastri, J., (as he then was ) and Bell, J., considered the doubts expressed by Somayya, J., in 1946 1 Mad LJ 454 (456) : (AIR 1946 Mad 534 (536) ) and the respective scope of the Full Bench decision in (1944) 2 Mad LJ 164 : (AIR 1944 Mad 550 FB ) and that of the judicial committee in (1946) 1 Mad LJ 295 : (AIR 1946 PC 51). Referring to the doubts expressed by Somayya, J., in (1946) 1 Mad LJ 454 (456) : (AIR 1946 Mad 534 (536) ). Patanjali Sastri J. said :
' We do not share the learned Judge's doubts. We are of opinion that other evidence to prove the details of the partition is inadmissible, and that the reasoning and conclusion of the Full Bench on the Point is not affected by the decision of their Lordships (of the Privy Council) '. Then, dealing with the import of the decision of the Full Bench and of the Privy Council he pointed out : 'The Full Bench were 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, it was held she could not do, having regard to Sec. 91 of the Evidence Act. The position, however was different in the case before the Judicial Committee. There, the plaintiff had sued for partition. The defence, among other things, was that the parties having separated previously 'the suit in the present from does not lie.' To prove the previous partition the defendant filed two memoranda which were held to constitute an instrument for partition, and, being unstamped and unregistered inadmissible in evidence for any purpose. Their Lordships then proceeded to discuss the oral evidence prefacing the discussion with the remark that 'the most important question is whether partition had been effected before the institution of the suit in December, 1939', and they found that a physical division of much of the joint property in February 1939, was established . They accordingly dismissed the suit except as regards the lands which the defendant admitted to be joint. It will thus be seen that 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 Indian 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 view enunciated in this passage is clearly to the effect that the existence as a fact of a prior partition will non-suit a plaintiff who comes to the court with a suit for fresh partition and that the circumstances that the earliest partition was evidenced by an unregistered partition deed will not render proof of the factum of that partition by other evidence inadmissible under Section 91 of Evidence act, because this section excludes oral evidence only if proof of a contract, grant or other disposition of property.
(15) however, a division Bench of this Court, in (1962) 1 Andh WR 230 : (AIR 1962 Andh Pra 443) after referring to the relevant decisions including (19440 2 mad LJ 164 : (AIR 1944 Mad 550 FB) and (1946) 1 Mad LJ 454 (456) : (AIR 1946 Mad 534 ) appear to have come to a conclusion which cannot be said to be compatible with the decision of the Privy Council the scope of which has been explained by a Division Bench of the Madras High court in (1947) 1 Mad LJ 90 : (AIR 1948 Mad 26) . The facts of (1962) 1 Andh Pra 443) are somewhat similar to the present case. There also, under an unregistered partition deed (Ex. B. 5) specific items of land were allotted to the plaintiff represented by his mother as guardian. After a lapse of about seven years, he brought a suit for partition, The defence was that a partition had taken place some years before and that therefore the suit was not maintainable. Anantanarayana Ayyar, J., delivering the Judgment of the Division bench expressed himself thus :
In this case, as exhibit B. 5 is not admissible in evidence, the partition concerned in it (Ex. B.5 ) cannot be proved by other evidence . The result in law that there was no valid partition at all and the plaintiff has adopted the right course in filing the present suit for partition The partition alleged to have taken place was in 1949 and the suit was filed in 1956 1. e. within twelve years. We disagree with finding of the learned Subordinate Judge on this issue and hold that there was no valid partition in 1949 under Ex. B. 5 or otherwise, and that the partition alleged by defendants 1 and 2 is not valid and binding upon the plaintiff. In this view, there is no need to go into the evidence regarding partition.'
This view does not appear to have given sufficient consideration to the position that in spite of a document of partition being hit by Section 49 of the Registration Act, that is to say, which does not seek to prove any of the terms of the disposition of property purported to be made under the unregistered partition deed. And if the prior partition as a fact is established by such evidence , the plaintiff's suit for a fresh partition of the same properties cannot lie, as pointed out by the Privy Council in (1946) 1 Mad LJ 295 : (AIR 1946 PC 51) and by the Division bench in (1947) 1 Mad LJ 90 : (AIR 1948 Mad 26). Therefore, the view expressed in (1962) 1 Andh WR 230 : (AIR 1962 Andh Pra 443) in the passage already extracted does not appear to be correct and has to be overruled.
(16) The learned counsel for the appellant has, however, strenuously urged that as the partition deed itself cannot 'effect' the properties comprised therein because of Section 49(a) of the Registration Act and as its reception as evidence of the transaction of partition is interdicted by Section 49(c), partition becomes non-existent as a fact. We consider this an untenable proposition. Section 49 does not operate to efface any fact. It is not even concerned with what can be proved and what cannot be. It only disqualifies, so to say, unregistered documents which fall with its mischief. Clause (a) of it says that a document which falls within the purview of Section 17 and it is not registered shall not serve to create, declare, assign, limit or extinguish any right, title or interest in the immovable property comprised in it. The Respondent before us does not base any claim to property. on the unregistered partition deed. Therefore clause (a) of section 49 does not comfort him. Nor does clause (c) trouble him because he does not seek to tender the unregistered document as evidence . We have earlier in this judgment considered the ambit of Section 49. There is absolutely nothing in it to obliterate the existence of a fact - a concept hardly familiar to law.
(17) It is then argued that the fact of partition must itself be regarded as a term of the unregistered document of partition. We cannot agree to this rather extreme contention. The terms of a partition deed are really the details of partition the mode and manner in which the partition is effected and the properties distributed among the sharers. In the instant case the unregistered document is said to have allotted separately specific properties to the plaintiff and the defendant. If one of them seeks to prove by independent evidence that a particular item of property was set apart to his share, he will come up against Section 91, which interdicts proof by other evidence of the terms of a disposition of property reduced to the form of a document. But proof of the fact of disposition stands outside the ban of Section 91. This question arose recently before a Division Bench of the Rajasthan High Court in Tejraj v. Mohan Lal, (S) AIR 1955 Raj 157, Wanchoo C. J. (as he then was) speaking for the Division Bench said :
'Section 91 only bars evidence in proof of the terms of the disposition if it is in writing,. The fact of disposition is not a term of the disposition, and therefore Section 91 will not bar evidence to prove the fact of partition, as distinct from the terms of the partition, namely the manner in which the property was actually divided between the various members of the family.'
This decision approves the view of a Division Bench of the Bombay High Court, consisting of Scott, C. J. and Beaman, J., in Chhottalal Aditram v. Bai Mahakore, ILR 41 Bom 466 : (AIR 1917 Bom 206). Several other high Courts have adopted this view. Vide Narsing Das v. Uttam Chand, AIR 1923 Lah 392, Mg. Khin v. Mg Ba, AIR 1933 Rang 249, Girja Nandan v. Girdhari Singh, : AIR1951Pat277 , Maung Tun Sein v. Ko Tu, AIR 1928 Rang. 196, Narmadabai v. Rupsing , AIR 1938 Bom 69 and Subba Rao v. Mahalakshmamma, ILR 54 Mad 27 at p. 53 : (AIR 1930 Mad 883 at p. 893).
(18) Taylor in his Law of evidence (12th Edition) para 405 says :
'Thus, also, the fact of the existence of a particular relationship may be shown by parol evidence , tough the terms which govern that relationship appear to be in writing.' (see dictum of Alderson, B., in Augustien v. Challis, (1847) 1 Ex. 279. If the fact of the occupation of land is alone in issue , without respect to the terms of the tenancy, this fact may be proved by any competent parol evidence , such as payment of rent, or the testimony of a witness who has seen the tenant occupy, notwithstanding it appears that the occupancy was under an agreement in writing. ( R. v. Holy trinity, Hull, (1827) & B and C 611). There a tenant held lands under written rules, but the length of his term had been agreed orally, the landlord was not required to produce those rules in an action of trespass under a plea denying his possession, because such a plea only rendered it necessary for the plaintiff's to prove the extent of the tenant's term, which, having been agreed to by parol, did not depend upon the written rules (Hey v. Moor House, (1839) 6 Bing NC 52). The fact of partnership may also be proved by parol evidence of the acts of the parties, without producing the deed (Alderson v. Clay, 1816) 1 Stark, 405); and the fact that a party has agreed to sell goods on commission may be established by oral testimony, though the terms respecting the payment of the commission have been reduced into writing, if such terms are not in question in the action (whitfield v. Brand, (1847) 16 M and W 282.)'
' The existence of the fact of a contract, grant or other transaction is quite distinct from the proof of the terms of the contract, grant etc., embodied in a document, and while the latter can only be proved by production of the document (or secondary evidence in a proper case) the former i. e. the fact of the contract etc., can be proved by independent evidence ofd other kind. This may also come under Explanation 3'. Vide Sarkar on Evidence , Tenth Edition, at Page 700 :
(19) In Viraraghavulu v. Yellamanda, 95 Ind Cas 584 : (AIR 1926 Mad 812 ) a learned Single Judge of the Madras High Court held that when the existence of a sale is in question and not its terms, oral evidence is admissible.
(20) The learned Counsel for the appellant has relied upon the following passage from the speech of Lord Cairns in Shaw v. Foster, (1872) 5 HL 321 :
'My Lords, I notice that deposit merely for this reason, that I may say it appears to me that nothing in the case turns upon the fact of the deposit, for two reasons. In the first place, no notice of any kind was ever given of the deposit as distinct from the document to which I have to refer presently, the contract, the contract with Sir William Foster; in the second place, although it is a well established rule of Equity that a deposit of a document of title without more, without writing, or without word of mouth, will create in equity a charge upon the property referred to. I apprehend that the general rule will not apply where you have a deposit accompanied by an actual written charge. In that case you must refer to the terms of the written document, and any implication that might be raised, supposing there were no document, is put out of the case and reduced to silence by the document by which alone you must be governed.'
It is not easy to understand how these observations are germane to the present case. That was a case where one Pooley entered into a contract with Foster for purchase of some lease hold property and paid part of the purchase money. Pooley had dealings with Birminham Banking company to which he became much indebted. Being called upon to give the Bankers some security, he handed to them the title deeds of a free hold estate which he charged with the debt and at the same time he deposited with them his contract for the purchase of the lease hold right with Foster. he accompanied this deposit with a written memorandum in which he agreed to make to the bankers a valid assignment of his contract with Foster for the purchase of the lease-hold premises, by way of mortgage at their request. The Bankers later found that the free hold security did not shape as expected. Therefore they tried to build a case that the deposit of the contract for purchase of the lease hold premises created a charge in their favour.
It was in that context that Lord Cairns spoke as quoted above, He indicated that the Bankers could not usefully seek to fall back upon the position which might have obtained, is the deposit of the contract by Pooley was not accompanied by a written memorandum, because the writing was there and it governed the matter. No attempt was made by the defendant in the present case to proceed on the footing that an unregistered document of partition did exist. Otherwise, he would have ventured to adduce oral evidence to show that particular items of land were allotted to his share at the partition. The existence of the unregistered document has deterred him from attempting to do so. Nor has the respondent's counsel tried to say that because an oral partition by metes and bounds is permissible in law, the document should be constructed as implying such a partition. Referring to the passage from (1872) 5 HL 321 already adverted to, is not therefore useful in this case.
(21) Equally, the reference to Subramonian v. Lutchman, ILR 50 Cal 338 : (AIR 1923 PC 50) is not of any assistance to the appellant. In that case, the memorandum which accompanied the deposit of title deeds represented the bargain between the parties and therefore the Judicial Committee held that without its production in evidence - proof of its terms being excluded by section 91, Evidence Act - the plaintiff could establish no claim, and as it was unregistered, it could not be received in evidence . That was a case of a mortgage by deposit of title deeds accompanied by a written memorandum which in the words of their Lordships 'was the bargain between the parties'. As the written memorandum which in the words of their Lordships 'was the bargain between the parties'. As the written memorandum was inadmissible in evidence for want of registration, the mortgage could not be enforced. That case bears no anology to the instant case because there without proving the terms of the unregistered memorandum which accompanied the deposit of title deeds, it was impossible to prove the mortgage itself and get relief on foot on it. In the case before us the factum of previous partition can effectively be proved without admitting into evidence the unregistered documents of partition and without proving its terms.
(22) In view of the foregoing, we are of opinion that the trail Court was right in allowing other permissible evidence to be led to prove the factum of a prior partition and non suiting the plaintiff on proof of it.
(23) Now, we have to see whether on the evidence in the case, the factum of prior partition has been established. The evidence lies within a brief compass. It shows that the finding of fact reached by the Court below is correct. Although the plaintiff alleged that he signed the partition deed under coercion, he could not sustain this story in his evidence, He admitted that his brother Subba Reddi and the husband of his eldest daughter, Satyanarayana, were present when he signed the document of partition. There is not even a faint suggestion any where that these two persons who were closely related to him bore him any ill-will or were other than friendly towards him. The document itself was written by Venkateswara Rao, the village Karnam, who is not shown to be in any manner biased against the plaintiff. In fact, even in the plaint, he mentioned him as one of the persons on whom he relied to persuade the defendant to agree to another partition or to revise the partition already come to. The threat of life etc., averred in the plaint were not even mentioned by the plaintiff in his evidence as P. W. 1.
The village Karnam who wrote the document has clearly stated that the plaintiff voluntarily signed it, without any compulsion by any body. The evidence also discloses that the subsequent conduct of the plaintiff was quite inconsistent with his case that he was the victim of threat and coercion by the defendant. He did not take any action to nullify the partition deed which according to him he was coerced and threatened to execute. Even the promissory notes which he endorsed in favour of the defendant after the execution of the partition deed were left to the defendant to realise. The plaintiff did not give any notice to any of the promisors asking them not to pay the amount to the defendant. In this state of evidence , we find that the learned Subordinate Judge, was right in concluding that the story of coercion set up in the plaint was not true and that the partition deed was executed by the plaintiff voluntarily and that the promissory notes were endorsed by him to the defendant in pursuance of the partition arrangement.
(24) The evidence of D. W. 1, the karnam, who wrote the partition deed is to the effect that the plaintiff, the defendant and the plaintiff/s brother and the plaintiff/s son in law went to him and wanted him to write the document of partition. The plaintiff's son-in-law gave him the survey numbers of the items of properties to be written down in the partition deed. The plaintiff, as I already stated, willingly signed the document. The evidence also shows that since the date of the partition the plaintiff and the defendant have been paying land revenue separately. Previously, the plaintiff used to pay the land revenue on all the family lands. The village Munsif, Village Karnam and the other witnesses on the side of the defendant deposed that the defendant was in separate possession and exclusive enjoyment of the properties which were allotted to his share ever since the partition of may, 1958.
The defendant also sold portions of the lands which were held and enjoyed by him exclusively after the partition. Exhibit B. 5 dated 26-5-1959 and Ex. B. 6. dated 26-12-1958 are the registered sale deeds executed by him. The purchaser have given evidence that they have been in undisturbed possession and enjoyment of the lands purchased by them under the sale deeds. Ex. B 3. shows payment of tax by the defendant in respect of the properties in his separate possession. Exhibits A. 2 and A. 3 are the tax receipts obtained by the plaintiff in respect of the properties in his exclusive possession. Exhibit B. 2 is the registered exchange deed executed between the defendant and D. W. 5 who is the defendant's paternal uncle. An item of land in the separate possession of the defendant was given to D. W. 5 and another piece of land which was convenient to the defendant was taken in exchange from D. W. 5. The further circumstances which shows that defendant was in separate possession of lands is that he obtained tobacco licence issued by the Central Excise Department. The licence to cultivate tobacco on some of the suit properties was obtained only by the plaintiff prior to the partition of 1958. That was when he was in possession of the properties as the father and manager of the joint family.
The plaintiff himself stated that prior to 1958 he himself was cultivating the entire suit lands. But after 1958, he has been cultivating only a portion of the suit lands and the defendant, the other portion. This is what the evidence in the case discloses. The evidence of the defendant as D. W. 7 that the day after the execution of the partition deed, the lands which fell to the share of the plaintiff and the defendant were separately taken possession of by each of them, appears to be acceptable, on a consideration of the evidence , the surrounding circumstances and the probabilities of the case. In fact, when the plea of coercion set up in the plaint fails, the only circumstances to vitiate the partition disappears. What remains is all against the plaintiff's case that the property continued to be joint family property.
(25) We are satisfied, an a consideration of the entire evidence in the case and the reasonable emerging therefrom, that a partition of the joint family properties took place. between the plaintiff and the defendant in May, 1958. We therefore uphold the finding of the court below regarding the factum of a physical partition of the joint family properties between the plaintiff and the defendant in May, 1958.
(26) In the result, this appeal fails and has to be dismissed with costs. The memorandum of cross-objections filed by the defendant does not arise for consideration. In fact, when the suit was dismissed in toto by the Court below, there was no point in preferring cross-objections The learned Counsel himself has noted practically to this effect at the foot of the cross-objection preferred by him. Anyway, the learned counsel for the respondent-defendant has not pressed his cross-objections - and rightly. Cross-objection are dismissed as necessary without any order as to costs.
Appeal and Cross-objections