G.K. Misra, J.
Defendant 1 is the appellant against a confirming judgment. The suit was for partition. The following geneology would show the relationship of the parties.
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Ratan Sahu Gadadhar Sahu Dasarathi Sahu
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Dandapani Kelei Sahu _________|________________
Sahu(Deft.1) (Plff.2) | |
Ladu Sahu Kehetr
=W.Bauri Bewa Sahu(Plff.1)
Plaintiff-2 claims one-third share and plaintiff-1 one-sixth share. The defence case is that there was a previous partition by metes and bounds. The Courts below concurrently negatived the defence plea and decreed the suit for partition.
2. Mr. Pal contended that the learned lower appellate court misconstrued the documentary evidence on record, namely, Exs. C/2 and C/1. I have gone through those documents carefully and am not inclined to agree with Mr. B.K. Pal that these documents were misconstrued. None of these documents either individually or taking Together would establish that there was a previous partition by metes and bounds.
3. Mr. Pal's next contention is that the unregistered partition deed dated 30-12-1956 marked X for identification was wrongly held to be inadmissible. Under Section 49 of the Indian Registration Act (hereinafter referred to as the Act), no document required by Section 17 to be registered shall affect any immoveable property comprised therein, or be received as evidence of any transaction affecting such property unless it has been registered. The document can, however, be received as evidence of any collateral transaction not required to be effected by registered instrument. In the aforesaid partition deed the properties have been divided by metes and bounds, and allotted to different members. Mr. Pal frankly concedes that the allotments are inadmissible in evidence as the document is unregistered. He, however, contends that the statement in the document that there was a partition by metes and bounds is admissible in evidence to prove the factum of partition by metes and bounds. In support of his contention he emphasises on the wording of Section 49(c) that the factum of partition is not a 'transaction'. The only authority relied upon in support of his contention is Gopinath v. Hangsanath, AIR 1950 Assam 129 wherein Thadani C.J. observed--
'It may be conceded that the deed was admissible in evidence for the purpose of proving the factum of partition, but it cannot be used for the purpose of proving that a particular property was allotted to the appellant upon partition as his share.'
It is noteworthy to mention that the learned Judge did not advance any reasoning but assumed that the legal position was settled that the deed was not inadmissible to prove the factum of partition. The other learned Judge sitting in the Division Bench did not go so far and rested his conclusion merely by observing--
'If could be used only for showing divided status'
4. There is no dispute over the proposition that the unregistered partition deed can be used as evidence to show severance of joint status and it is inadmissible to prove the actual allotment of specific properties to the different shares. The only interesting question for consideration is whether the statement in the unregistered partition deed that there was a partition by metes and bounds amongst the members of the joint family is admissible in evidence. On a plain reading, such a statement appears to be clearly hit by Section 49(c) of the Act. Partition is a 'transaction' which affects the immoveable property comprised in the partition deed as what was a joint ownership is converted into separate ownership of the different members in specific shares. Such a statement in the unregistered partition deed is therefore inadmissible in evidence. Mr. Misra places reliance on a Bench decision of the Madras High Court reported in Subbu Naidu v. Varadarajulu Naidu, AIR 1948 Mad 26 which is directly pertinent. Their Lordships observed:-
'It was next suggested that the concluding declaration that all the family properties had been divided and that there were no more properties, debts or cash left to be thereafter divided was admissible to prove the appellant's case that there was a complete partition in 1928. The suggestion is clearly untenable for that would be admitting the document as evidence of the partition, which is exactly what is prohibited under Section 49, Clause (c).'
Though there is plethora of authorities on the other aspect of the matter, there seems to be no other decision directly on this point. I am satisfied that such a statement is inadmissible in evidence.
5. If the document marked X for identification is excluded from consideration then there is no other evidence in support of the defence contention to satisfactorily establish that there was a previous partition by metes and bounds. Though the judgment of the learned lower appellate Court is not satisfactory in discussing the matter, its ultimate conclusion is unassailable.
6. In paragraph 8 of the trial Court's judgment under issue No. 4, there is a direction to the effect:-
'Since the parties have been in separate possession of the lands for sometime past the allotment should be made respecting the possession of the parties as far as practicable and the lands sold by the individual co-sharer would be adjusted out of his own share'.
At the final decree stage the learned trial Court would keep this observation in view while effecting allotments.
7. In the result, the appeal fails and is dismissed. In the circumstances, there will be no order as to costs of this Court.