1. This is an appeal by the defendant arising oat of a suit instituted by Musammat Mundarya for a declaration that she as heir of her husband, Shukru, was the owner in possession of a house bearing No. 62 situate in Mohalla Ahmad-ganj in the City of Allahabad.
2. One Sheo Din died leaving a widow Musammat Taiya and two sons Kallu and Shukru. Musammat Mundarya is the widow of Shukru, the latter having died about the year 1920 Bansi Lal defendant No. 1 is the son of Kallu. On the 8th of February, 1923, Bansi Lal mortgaged a house in dispute to defendant No. 2 who, by a strange coincidence is also named Bansi Lal.
3. The suit was opposed upon the ground that Bansi Lal and Shukru were members of a joint Hindu family on the date of Shukru's death and that the house passed to Bausi Lal defendant No. 1 by rule of survivorship and that Musammat Muadarya the widow of Shukru had no title to the house. The Court of first instance decreed the suit. The lower Appellate Court came to the conclusion that Kallu and Shukra were members of an undivided family and that the house in its inception was owned by the two brothers in equal moieties. It held, however, that Kallu was heavily indebted and with a view to clear his debts the house was transferred by Kallu and Saukru to their mother Musammat Taiya by sale sometime about the year 1892 upon the understanding that Musammat Taiya, the vendee, was to discharge the debts due from Kallu. Musammat Taiya remained in possession of this from 1892 to 1896 but she could not arrange to pay the debts due from her son Kallu. The result was that she reconveyed the property under an instrument of the year 1896 to Kallu and Shukra. The document was not a mere deed of conveyance from Musammat Taiya to her two sons but it was something move. It contained a recital that if Shukru paid the debts of Kallu he was to remain in exclusive ownership of the entire house. The document contained a further recital that this arrangement was agreed to by Kallu. The finding of the lower Appellate Court is that in pursuance of this agreement Shukru paid the entire debts of Kallu and since the payment of, the debt he became the absolute owner of the house in its entirety.
4. It is true that no formal document of sale was executed by Kallu in favour of his brother Shukru. Where a member of a joint family conveys a portion of the property belonging to him to another member of the family in lieu of consideration and the transaction has been followed up by the actings of the parties, it is not open to any impeachment by reason of an absence of a registered instrument to support the transaction. We are of opinion that the transaction is fully supported by the doctrine of part performance as laid down by the Judicial Committee in the case of Mohammed Musa v. Aghore Kumar Ganguli 28 Ind. Cas. 930 : 42 C. 801 : 17 Bom. L.R. 420 : 21 C.L.J. 231 : 28 M.L.J. 548 : 19 C.W.N. 250 : 13 A.L.J. 239 : 17 M.L.T. 143 : 2 L.W. 258 : (1915) M.W.N. 621 : 42 I.A. 1 (P.C.). Under these circumstances, Musammat Mundarya was the owner of this property as heir to her deceased husband Shukru and Banarsi Lal defendant No. 1 was not competent to mortgage the property under the document, dated the 8th of February, 1923, to the defendant-appellant. The result is that this appeal is dismissed with costs.