1. The parties are Choubes of Muttra. They are the sons of one Ram Raj Chaube, who is dead. They carry on a business which is known as Brit Jijmani. It consists of looking after pilgrims who come to Muttra and taking them to the various temples and sometimes helping them in their pujas or religious worship. The pilgrims pay for this service according to their capacity to pay and the capacity of the Panda to extract money from them. When a pilgrim goes to Muttra, he is claimed by the Panda on the ground that he or his ancestors had attended on the pilgrim or his ancestors on their previous visit or visits to Muttra. Generally, the pilgrim decides to engage the services of the same Panda who had attended on him or his ancestors or that Panda's descendants. If, however, the pilgrim decides to go to a different Panda or not to have a Panda at all, his right to do so cannot be fettered nor has a Panda a legal right to force himself on an unwilling pilgrim. Who does not require his services. Generally, however, the tendency is not to make a change and in that sense this office, if it can be called an office at all, becomes hereditary. The Ghaubes of Muttra, like the Pandas of many other places of pilgrimage, maintain books on which they make a note of the pilgrim they have attended on and sometimes take his signature or thumb-impression so that they may be able to prove, when occasion arises, that they attended on him before and would be able to appeal to him or to his descendants to engage their services. Ram Raj Chaube left two sons, of whom the elder, Salig Earn, is the plaintiff and the younger, Bal Kishen the defendant. He also left a widow, the mother of the plaintiff and the defendant who died about the year 1928 or 1929. Ram Raj Chaube had left three houses, known as, Purani haveli house No. 206, Nauwala, house No. 208 and a house in Mohalla Golpara No. 587. There was a fourth house, No. 505 in Gali Tiwari which was purchase by the plaintiff in his own name on 31st August 1984. There was also a plot of land in the name of the parties which had been acquired from the Nazul Committee. Ram Raj Chaube had left certain Jijmani bahis or books in which the names of the pilgrims on whom he and his ancestors had attended were entered and probably some other movable property. The plaintiffs case was that on 29th November 1934, there was an oral partition with the help of Moolji Ranchordas of Bombay one of the Jijmans, when it was decided that the Purani haveli house No. 206 was to be given to the defendant, while the Nauwala house No. 208 and house No. 587 in Mohalla Golpara would fall to the plaintiff's share, that the parties were living in Purani haveli, that as that house was of higher valuation than the two houses allotted to the plaintiff, the defendant was required to pay Rs.500 as compensation to the plaintiff, that as regards the house purchased by the plaintiff, it was decided that the defendant would pay to the plaintiff Rs. 550 and would then get a half share in the house. That the Nazul land was to belong to the parties half and half and each was required to pay Rs. 2 to the Nazul Committee as rent, that the rest of the movables were also divided between the parties and it was held that the articles in possession of each party would belong to him, and that as regards the Jijmans, the parties agreed to divide them by castes and the Jijmans belonging to certain castes fell to the share of Bal Kishan and the Jijmans of certain other castes fell to the share of Salig Ram.
2. At the time of the partition according to the plaintiff there was some sort of a panchayat and some of the Jijmans and well wishers of the family were also present. One Madanlal Chaturvedi wrote out a memorandum of what had taken place and obtained the signature of the parties on it. The paper was also signed by two witnesses, Tapia Chaube and Sundarlal Chaube. The plaintiff's case is that after this partition of 29th November 1934, the parties divided the pages of the bahis on 26th August 1935, with the help of another Jijman, one Mt. Prem Kuar of Bombay. According to the plaintiff, in spite of the partition, the defendant was interfering with the plaintiff's rights and the plaintiff, therefore, claimed the two following reliefs:
(a) It may be deolared that a private partition has been made between the parties that the plaintiff is the atatato owner in poisessicra of the property given in Schedule A and that the defendant has no right and share in it laid at Rs. 5000.
(b) The defendant may be ordered to render account of the amounts realised by him from the plaintiff's Jijmans and a decree in respect of the amount which may be found due to the plaintiff may be passed in his (plaintiff's) favour as against the defendant. The court-fee on the amount which is found on account will be laid later on laid at Rs. 110.
3. In Schedule A are given the houses which the plaintiff said belonged to him as they fell to his share and the list of various castes who become his jijmans after the partition. Schedule B gives the list of property and the castes of jijmans that fell to the share of the defendant. The defence was a total denial of any partition between the parties and it was said that everything was joint up to the date of the suit. In para. 8, however, the defendant alleged that there were several attempts made at partition but on account of the plaintiff the partition could never be completed.
4. The lower Court held that there was an oral partition, as alleged by the plain, tiff, on 29th November 1934. The learned Judge was, however, of the opinion that under the Hindu law immovable property could be partitioned only in two ways (1) oral partition followed by change of possession, and (2) oral partition followed by a registered deed. No party was able to place before us any text of Hindu law on the point as to how the partition of immovable property was to be effected. The finding of the learned Judge is based on certain observations made by a Bench of this Court in Kishan Lal v. Lachmi Chand : AIR1937All456 . In that case, however, the decision was based on a finding that the parties had agreed that the partition would be completed after a registered deed was executed, and after considering the evidence the Bench came to the conclusion that there was no completed partition. So far as we can see, the observations on which reliance was placed in the Court below and in this Court are in the nature of mere obiter. According to the learned Judge, there was an oral partition, but as it was not followed by a change of possession or by a registered deed it was incomplete. The learned Judge held that the plaintiff was in possession of three houses that fell to his share and the defendant was in possession of one house that fell to his share, but this was not 'in consequence of the alleged partition' and would not, therefore, help the plaintiff. The partition of brit jijmani, according to the learned Judge, could be completed with the division of books in which the names of the pilgrims were entered and as in the case of brit jijmani there had not only been an oral partition but it had also been followed by the division of the books, the partition was complete. As a result he confined the declaration prayed for to the brit jijmani in Schedule A and B and dismissed the rest of the claim. Before the learned Civil Judge a point was taken that the document dated 29th November 1934, needed registration under Section 17, Registration Act. The learned Civil Judge was of the opinion that the paper contained only a memorandum of what had happened at the meeting on 29th November 1934, and it was, more or less, in the nature of the minutes of the meeting and that it was never intended to be an instrument of partition and was not, therefore, compulsorily registrable. The learned Judge relied on the evidence of Moolji Ranchordas for holding that the parties had contemplated that there would be a registered deed executed later on. He held, therefore, that the paper Ex. 1, dated 29th November 1934, was admissible in evidence.
5. In appeal a greater part of the argument addressed to us has been on the question whether the paper Ex. 1, dated 29th November 1934, was compulsorily registrable, and if it was and was not registered whether it could be admitted in evidence as regards any part of the property comprised therein and for any other purpose. It was further urged that brit jijmani was also immovable property and Ex. 1, not having been registered, was not admissible to prove that the brit jijmani was partitioned between the parties. Under the Transfer of Property Act, a sale, a mortgage, a lease and a gift of certain pro-parties can only be effected by a registered deed. Under Section 17, Registration Act, certain documents have to be compulsorily registered. There is no provision which requires that a partition should be effected by a deed, but if the parties execute a deed of partition affecting immovable property such a document is compulsorily registrable under Section 17, Registration Act. The relevant provision in that section reads as follows:
The following documents shall be registered: Other non-testamentary instruments which 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 immoveable property (Section 17(1)(b).)
6. There can be no doubt that, if the document dated 29th November 1984, was a deed of partition, it purported to affect immovable property of the value of above one hundred rupees, By the document the right of one of the parties to the properties given to the other was extinguished and his rights assigned to the party to whose share that property had fallen. Learned Counsel for the appellant has argued that the document dated 29th.November 1984, was a mere memorandum of what had transpired at the meeting on that date and was not a deed of partition and was not therefore compulsorily registrable. The first point that we have, therefore, to decide is whether Ex. 1, dated 29th November 1984, is a deed of partition or is a mere memorandum of the proceedings of that date. The document begins as follows:
To-day the 29th of November 1934, we both, Lala alias Balkishan and Salig Bam, sons of Bam Bajji, residents of Nagla Paisa, Muttra, of our own accord made partition between ourselves of our Jajmani, building, money lending, all things, in the presence of some friends. Its details are given below. If we both the brothers or our heirs take any objection to it, it shall be considered false on the face of this writing.
7. The shares of the two brothers are then separately specified and it is mentioned what compensation is payable by one to the other. Then at the end it is signed by Bal-kishan and by the plaintiff, Salig Ram Chaube, who wrote above his signature, 'I agree to the settlement which has been made this date.' It is then witnessed by two witnesses, Tapia Chaube and Sunderlal Chaube. It appears to us that there can be no doubt that the parties intended Ex. 1 to be the document which was binding on them as a deed of partition and which was to be the sole evidence of the terms of such partition. So far as the immovable property, which was affected by this deed, was concerned, no other evidence of the partition could be admissible under Section 91, Evidence Act. Under that section when the terms of a contract or of any other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract or other disposition of property or of such matter except the document itself : So far as the house property mentioned in the plaint went, the only evidence of partition which the parties could rely on was this document Ex. 1 and that not having been registered, it, was not admissible in evidence, nor was it open to the parties to lead any other evidence of partition of the house property. Learned Counsel for the plaintiff respondent has urged that though the document may not be admissible as a deed of partition, it may be used for collateral purposes for proving that by a partition between the parties each party was in exclusive possession of the property which had fallen to his share. Learned Counsel in this connection has cited before us a large number of cases, but we need not discuss them as, to our minds, they have no bearing on the point. The plaintiff claimed a declaration that he had become the owner of house property mentioned in Schedule A and the defendant had become the owner of the house property mentioned in Schedule B. The document Ex. 1 having been executed as a deed of partition we cannot hold that the use of it to prove partition was a collateral purpose. The question of the nature of possession is not relevant to this case so far, as the parties have not been in exclusive possession of the properties allotted to them for more than twelve years.
8. The last argument advanced by the plaintiff on this part of the case was that the plaintiff had become the owner of the property in his possession by reason of the doctrine of part performance. His argument was that even if the deed dated 29th November 1934, was not a valid deed of partition, the parties having got possession of the property under that document the case was governed by Section 53A, Transfer of Property Act. That section reads as follows:
Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, nothwithstanding that the con-tract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
9. It is doubtful whether under that section the plaintiff can file a suit for declaration that he had become the owner of the property under an invalid deed of partition which had been acted upon, but apart from that we agree with the finding of the Court below that it does not appear that the parties got possession of the property or continued to remain in possession in part performance of the contract. From the evidence it is clear that soon after the partition the defendant repudiated the same. The plaintiff's own statement on the point was that the defendant 'backed out two or four days after the partition. The Beth left after three or four days. The defendant backed out even while the Beth was here.' The lower Court has dealt at some length on the question whether possession was given to the plaintiff in consequence of the alleged partition. We accept the reasons given by the Court below that it cannot be said that there was change of possession in consequence of the alleged partition, and it is not necessary for us to repeat the grounds given by that Court. The plaintiff's cross-objection, therefore, as regards the house property must fail.
10. As regards the brit jijmani, about which the defendant has filed this appeal, the defendant wants us to hold that brit jijmani is also immovable property and the document Ex. 1 is not admissible to prove partition of the brit jijmani. Apart from the question of admissibility of Ex. 1, we have the further fact that it was the plaintiff's ease that the books of the brit jijmani were divided on 26th August 1935. The lower Court accepted the evidence given on behalf of the plaintiff to prove partition of the books, and we agree with the finding of the lower Court. Apart from the evidence produced by the plaintiff which consists of his own statement and the statement of Mohan P.W. 5, the evidence of Mt. Prem Kuer, a witness for the defendant, supports the plaintiff's case. She stated that:
Salig Ram brought the chopras (books) before the panches. The panches then asked the parties to get the jijmani divided by themselves from the chopras. But the matter at the end after two days ended in a compromise. The panches began to tear off lephas from the chopras in my presence, but I do not know what happened later on.
11. She, therefore, admits that the actual partition of the books had started in her presence when she left the meeting. The decision on the point depends entirely on the weight to be attached to the oral evidence given by the parties, and we see no reason to differ from the lower Court's estimate of the weight to be attached to the oral evidence bearing on the question. In Ram Chandar v. Chhabbu Lal ('23) 10 A.I.R. 1923 All. 35 it was held by a Bench of this Court that the proper way of dividing the brit jijmani was by division of the books. There can be no doubt that the brit jijmani books are movable property and if they have been divided by certain pages being allotted to one party and other pages to the other party the partition of the books was complete. We have already said above that it is entirely at the option of the jijmans to go to a particular Panda if he wishes to do so. The possession of the books may help a party to persuade a jijman to go to him. In that sense the books may be even valuable property, but, to our mind, they can, in no sense, be considered to be immovable property.
12. Coming to the question whether brit jijmani is or is not immovable property, a large number of cases have been cited before us by counsel for the parties. The argument on behalf of the appellant is that the brit jijmani right was classified as nibandha under the Hindu law, that nibandha was treated as immovable property under that system and that it must now, therefore, be treated by us as immovable property as that is so recognised under the Hindu law. We find that under the Hindu law there were no such sharp distinction between immovable and movable property, and it appears to us that an attempt to translate a vernacular word into some partial equivalent in English and then treat the two as identical is not only liable to lead to error but would be positively misleading. Under the Hindu law there were four kinds of property, sthavara, that is land or things connected with land, slaves, nibandha, which was translated by Colebrooke as corrody, and other valuables (drabya) like jewellery, utensils, wearing apparel etc. Greater stress was given to the modes of acquisition, that is, whether the property was self-acquired or was ancestral or was joint family property and whether it was received by birth, gift, purchase, partition and the like. There does not appear to have been any system of registration nor any inflexible rules as regards the modes of transfer. According to Macnaghten in his well-known Principles of Hindu Law, first published in the year 1829, property according to Hindu law was of four descriptions, real, personal, ancestral and acquired. He used the terms.
13. Real and personal in preference to the terms moveable and immoveable, because, although the latter words would furnish a more strict translation of the expressions in the original, jet the Hindu law classes amongst things immoveable property which is of an opposite nature, such as slaves and corrodies, or assignments on land.
14. In the book of Hindu Law by Sir Thomas Strange, which was first published in the year 1830, it is mentioned at p. 16.
As with us also, property is further distinguishable into real and personal, moveable and immoveable, real, or immoveable property, among the Hindus, including, beside land and houses, slaves attached to the land, and annuities secured upon it, the latter bearing a close resemblance to that species of incorporeal hereditament, which we call rrodies.
15. The word 'nibandha' etymologically means, to bind on, tie, fasten, to charge etc. So far as we can see, nibandha originally meant royal grant to a Brahmin of a fixed sum payable out of the income of a village or of a mine etc., that is, instead of assigning land the King might make a grant of a cash payment out of the income of immovable property. The mode in which such a grant was to be made is laid down in Colebrooke's Digest of Hindu Law, first published in the year 1801, Edn. 3, Vol. I, p. 442, Vajnyawalkya, Book II, chap, 4, Section 34, which is as follows:
Let a King, having given land or assigned a nibandha (corrody), cause his gift to be written, for the information of good princes, who will succeed him.
2. Either on prepared silk, or on a plate of copper, sealed above with his own signet. Having described his ancestors and himself.
3. The quantity of the gift, with the penalty of resumption, and set his own hand to it, and specified the time, let him render his donation firm.
16. In the same book at p. 443 it is mentioned that the word 'corrody' is thus explained in the Dipacalica:
The gift of a future thing by a previous agreement in this form, 'I will give a hundred suvernas every month of Cartici', or, 'out of this mine, or this village I will annually give a hundred suvemas', or, 'I will monthly give one suverna'.
17. There is some discussion in the Hindu texts how a mere promise to pay in future could be treated as property and could be binding on the successors. The reply to that given in the Hindu text books was that the cause of this property was the past existence of volition; hence the Brahmins had a right to the future thing. Jolly has in his Hindu Law and Custom at p. 228 said that:
Besides gold land was very much coveted by the Brahmans. Already Vishnu 3, 81 f. advises the King to present land to the Brahmans and to have a deed of gift prepared on a piece of cotton cloth or copper plates for the attestation of the gift and for the purpose of informing the future rulers of the gift, it should contain the name and the family tree of the donor, a description of the gift and a reference to the meritoriousness of the gift and the sin of every encroachment on the same. Later Smritis have very detailed rules for the preparation of these deeds (Section 35). Besides land particularly fields, houses or whole villages, by which only the right of taking the taxes out of it is meant, pensions (nibandha) too are bestowed, for instance the fixed monthly or annual payments of guilds of merchants for the maintenance of a temple.
18. In course of time other people besides Kings could grant a fixed allowance to a Brahmin so that it was binding on his heirs and the idea that the allowance was to be paid out of the income of a particular village or of a particular mine also lost its significance. There can be no doubt that the payment of an annual grant out of the income of property and charged on it may, under our system of law, be also treated as interest in immovable property, but if such a grant is not a charge on immovable property or is not to come out of the income of a particular immovable property, it is difficult to see how it can be immovable property, as we understand it. In any case, the amount payable by a jijman as brit jijmani to the Panda when he visits Muttra is not a fixed allowance which even under the Hindu law would be deemed to be a nibandha. Learned Counsel for the appellant has cited before us a large number of authorities and he has specially relied on the observations made by Mulla J. in the Full Bench case in Fateh Singh v. Raghubir Sahai : AIR1938All577 . The point discussed in that case was whether the interest of a mortgagee in a usufructuary mortgage was immovable property or movable property under the Hindu law and this Court held that it was immovable property and the widow had, therefore, no right to transfer the same except in case of legal necessity. It can hardly be doubted that mortgagee rights are immovable property. The point that arose in that case was that a Hindu widow who had inherited the mortgagee rights of her husband was only entitled to receive from the mortgagor the payment of the debt due to the estate. If the mortgagor instead of paying the debt himself had transferred the debt to some one else who had paid it the widow would be bound to receive the money. Similarly if the widow, instead of getting the money from the mortgagor, received the money from a third person whom she had authorised to get the money from the mortgagor, could it be said that it was necessary to prove legal necessity or if the transaction was otherwise a fair one, that she had exceeded her rights of a prudent manager? However the question whether the brit jijmani of the kind with which we have to deal was or was not immovable property was not before the Full Bench. Parties have cited a large number of cases, but as they do not seem to have any real application, we do not propose to discuss them. We may, however, mention that our attention was drawn to three cases of the Bombay High Court in Raiji Manor v. Kallianrai Hukmatrai ('69) 6 Bom. H.C.R. 56. Mrishnabhat Hiragange v. Kapabhat Mahalbhat ('69) 6 Bom. H.C.R. 137 and Balvantrav v. Purshotam Sidheshwar ('72) 9 Bom. H.C.R. 99 (F.B.). In those cases the question was whether the fee payable to the holder of the hereditary office of a village Joshi for five years was or was not immovable property for the purpose of the application of the law of limitation, and in Balvantrav v. Purshotam Sidheshwar ('72) 9 Bom. H.C.R. 99 (F.B.) the Full Bench of the Bombay High Court held that it was immovable property. That decision is the basis of the later decisions of the various High Courts which have treated the right to receive a payment or to derive an income which was charged upon some land, as also the perquisites of a hereditary office or a right to officiate as priest at funeral ceremonies as immovable property. With great respect to the learned Judges who have decided those cases, we feel inclined to agree with the dissentient judgment of West J., in Balvantrav v. Purshotam Sidheshwar ('72) 9 Bom. H.C.R. 99 (F.B.) that
because nibandha property classes for some purposes, 'with immoveables and because it includes a grant of sthavar i.e. immoveable property, therefore the English word immoveable used in an English law is to receive its meaning from nibandha does not seem a strictly legitimate process of reasoning.
19. In West and Buhler's Hindu Law, 4th Edn., p. 706, the learned authors have said:
A royal grant of an annuity, therefore, would be 'nibandha' according to Hindu law, but according to the English law it would, unless issuing from land, be a merely personal inheritance, : see Co. Lit. 20A and Hargrave's note.
31. Then with reference to the argument that a royal grant to a temple is immovable the learned authors go on to say:
32. This seems to assume the point in issue. If not, then the question is whether 'nibandha' is necessarily immovable property, and to say that because some or even all immovable property is nibandha, all nibandha is immovable, is not a permissible conversion. 'The question (is) whether the subject of the suit is in the nature of immovable property (see above p. 223) or of an interest in immovable property, and if its nature and quality can be only determined by Hindu law and usage, the Hindu law may properly be invoked for that purpose.' But the 'nature and quality' of a temple grant having been thus determined, the question of whether it falls within the class of 'immovable property' is one of English construction, i.e., do its characteristics as ascertained (not the mere Hindu name by which it may be called) place the object within or without the comprehension of 'immovable property'?... A temple allowance payable by officials out of a tax levied by them, even a land tax, does 'not constitute a charge...against the land,' and therefore according to the -Judicial Committee in Government of Bombay v. Desai Kullianrai ('70-72) 14 M.I.A. 551 (P.C.) cannot certainly be said 'though payable out of the Government revenue of a particular perganna'...to be 'immovable property,' (Ibid). The opinion then may be perhaps be hazarded that where the Hindu law in a matter explicable by it alone shows a particular right to be a jus in re (a real right as it is called) it is not immovable property even though it should be nibandha according to the Hindu law, as ex. gr. in case of a nemnuk (periodical payment) from the Government treasury. This agrees with the definition given in the General Clauses Act, I of 1868, and in the Registration Act III of 1877. In the Limitation Acts subsequent to Act XIV of 1859 (Acts IX of 1871, XV of 1877), immovable' must necessarily be construed according to the definition given in Act I of 1868, Section 2.
33. However that may be, under the Registration Act, by reason, may be, of the decision in Balvantrav v. Purshotam Sidheshwar ('72) 9 Bom. H.C.R. 99 (F.B.) the Legislature has now included in the definition of immovable property hereditary allowances. Under Section 2, Sub-section (6), Registration Act, immovable property includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass. If the Legislature had intended to include any other kind of allowance, to our mind it would have said so specifically. These hereditary allowances are probably allowances which are payable out of the income of land and buildings and also allowances incidental to a hereditary office. The payment made to a panda by his jijman going to Muttra is, in our opinion, not a hereditary allowance of the kind mentioned in the Registration Act. We have already held above that it is a purely voluntary gift made to a panda for services rendered by him on the occasion of a jijman's visit to Muttra, or a pure charity when the panda may happen to visit his jijman. We are, therefore, of the opinion that in any view of the matter the document Ex. 1 was admissible in evidence for the purpose of proving the partition of the brit jijmani and the lower Court's decision on the point was correct. In the result we dismiss the appeal and the cross-objection with costs.