S.P. Goyal, J.
1. This first appeal has been brought by the plaintiff against the judgment and decree of the learned Subordinate Judge 1st Class, Bhatinda, dated May 25, 1964, dismissing his suit.
2. The plaintiff filed a suit for partition of his one-fourth share and separate possession in the properties in dispute situate at various places with the al-legations that the parties formerly formed joint Hindu family and that the move-able properties consisting of clothes, cash and ornaments had already been partitioned long before but the immovable properties continued to be joint and had not been partitioned by metes and bounds.
3. The suit was contested by the defendants who pleaded that the partition of the suit properties had already taken place in the year 1992 Bk., during the lifetime of their father Gainda Mal and that a memorandum of that partition containing the detailed list of the properties which fell to the share of each of the parties had also been prepared under the signatures of the parties on May 9, 1950. On the pleadings of the parties, following issues were framed:--
1. Whether the suit is within time?
2. Whether the suit is properly framed for the purposes of court-fee ?
3. Whether Gian Wati is a necessary party to the suit? If so, what is its effect ?
4. Whether a shop, a room situated in Lehra Bazar, Phul and land in the area of village Gill is not a joint Hindu family property ?
5. Whether the property in dispute was partitioned in the month of Poh, 1392 Bk., during the lifetime of Gainda Mal and the parties are in possession of their respective snares since then 3
6. Whether property mentioned in paragraph 5 of the plaint was sold by Sant Ram father of defendants Nos. 3 end 4 as sole owner thereof, after the said partition ?
7. Whether the plaintiff is entitled to get the property in suit partitioned to the extent of 1/4th share therein ?
4. After recording evidence of the parties, the trial Court decided issues Nos. 1 to 4 in favour of the plaintiff and the remaining issues against him and dismissed the suit. Aggrieved by the judgment, the plaintiff has come up in this appeal,
5. Mr. M. R. Agnihotri, the learned counsel for the appellant, has challenged the findings of the trial Court on issues Nos. 5 and 7 only. The findings of the trial Court on the other issues are hereby confirmed.
6. The challenge against the finding on issue No. 5 raises some interesting questions of law as to whether a parition deed found to be inadmissible in evidence for want of registration can be read in evidence to prove the factum of partition and the nature of possession of the defendants and whether Section 91 of the Evidence Act bars the leading of other oral or documentary evidence to prove the factum of partition and nature of possession.
7. As noticed above, the defendants sought to prove in evidence a document dated May 9, 1950, claimed to be a memorandum of partition. This document was held by the trial Court to be a partition deed and being unregistered inadmissible in evidence. However, relying on oral and other documentary evidence produced by the defendants, the trial Court held that complete partition of whole of the joint property of the parties had taken place in the year 1992 Bk., and they were in separate possession of their respective shares since then. The finding has been challenged by the learned counsel on the ground that the evidence oral and documentary relied upon by the trial Court was not admissible in evidence and was hit by the provisions of Section 91 of the Evidence Act. The learned counsel has further argued that the said document being inadmissible for want of registration, could not be taken into consideration even to prove the factum of partition and the nature of possession of the parties on the property in dispute. In support of his contention, the learned counsel has relied on the following observations of the Division Bench of Saurashtra High Court in Smt. Zaveri v. Jitu, AIR 1954 Sau 46:--'Section 91, Evidence Act, says that when the terms of a contract have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract except the document itself or secondary evidence of its contents in cases where secondary evidence is admissible under the Act. Therefore, the only evidence of partition which the defendant can rely upon is the deed of partition itself and as that document has not been registered, it is not admissible in evidence, nor is it open to the defendant to prove the terms of the partition. This position is not demurred to, but it is contended for the defendant that the fact of partition is independent of and is collateral to its actual terms and the document is admissible to show that a partition had been effected between the parties though it was not admissible to prove its terms.
In substance the contention is that the fact of the partition could be proved by the deed of partition and if that is done, no second partition can be effected and the suit will not lie. This line of reasoning is however, erroneous. The parties are tenants-in-common and the only way in which a partition can be effected between them is by a division of the property by metes and bounds and the plaintiff's suit can be defeated only if it is shown that such a division of the property by metes and bounds has taken place. The only evidence of this division is the partition itself because by a reference to its terms alone can we ascertain which portion was allotted to each party. Moreover, it is the defendant's case that she has been the exclusive owner and in possession of the portion which was allotted to her under the deed of partition. The partition by metes and bounds, which has been effected by this document, and which fact is being pleaded as an answer to the suit, is therefore, not a collateral transaction nor a collateral purpose. Rather it constitutes the very terms of the document and it cannot be proved for want of registration.'
8. The learned counsel for the respondent, in reply, has challenged the correctness of the proposition of law laid down in Smt Zaveri's case (AIR 1954 Sau 46) (supra) and contended that the weight of the parties is on the other side for which he has referred to C. S. Kumaraswami Gounder v. Aravagiri Gounder, AIR 1974 Mad 239, Tejraj v. Mohanlal, AIR 1955 Raj 157, Permanand v. Laxminarain, AIR 1955 Madh Bha 129, Suleiman Tigg v. Cyril Tigg, AIR 1938 Pat 603, Punjab National Bank Ltd. v. Mathra Das, AIR 1933 Lah 194, Munna Lal v. Narayan, AIR 1933 Nag 270, Sheo Karan v. Chiranji Lal, (1927) 28 Pun LR 88 and Hari Ram v Sheo Karan, AIR 1927 Lah 842 (1). In all these cases, it was held that an unregistered instrument of partition could be read in evidence to prove the factum of partition and separate possession by the respective parties. The decision of the Saurashtra High Court and the Allahabad High Court in Bal Kishan v. Salig Ram, AIR 1946 All 476, which was relied upon in Smt. Zaveri's case (AIR 1954 Sau 46) (supra) were dissented from in Permanand's case (supra) wherein it was held:--
'The combined effect of Section 91, Evidence Act and Section 49, Registration Act is only to shut out all evidence to prove the terms of the unregistered partition deed. These provisions do not bar evidence to prove separate status end separate possession by other independent evidence. Section 91, 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. Section 49(c), Registration Act, prohibits the use of unregistered documents in any legal proceeding in which such a document is sought to be relied upon in support of a claim to enforce or maintain any right, title or interest to or in immovable property So long as the document is not used as evidence of any right, title or interest to or in immovable property, there is nothing to prevent the document being received in evidence for other purposes. The proviso to Section 49, Registration Act, says that a document though unregistered deed of partition is no doubt not admissible to prove the terms of the partition but it can be referred to under Section 49, Registration Act, for the purpose of proving the collateral fact of partition itself or severance of the joint status. Though not admissible to prove that properties fell to the share of a particular member in the partition, it can be relied upon to prove separate possession and separate dealings and enjoyment of the properties.'
9. Respectfully following these observations, T am of the view that the provisions of Section 49 of the Registration Act do not bar the proving of unregistered instrument of partition for the purposes of ascertaining the nature of possession of any party to such an instrument. Moreover, in the case before the Sauraahtra High Court, this question was never debated as to whether the factum of partition or the nature of possession of the parties could be proved by oral or other documentary evidence or not. All that was held in this case was that the instrument of partition found to be inadmissible for want of registration could not be led in evidence to prove these matters.
10. The view taken by me also finds support from the observations made in two decisions of this Court in Gram Panchayat Sidhbari, Tahsil Kangra v. Sukh Ram Dass, (1963) 65 Pun LR 1043 and Nand Singh v. Sewa Singh, (1958) 60 Pun LR 139 = (AIR 1959 Puni 609). In the earlier case a Division Bench of this Court held that a document which is compulsorily registrable but is not registered, can be looked at in order to determine the nature of possession of the person in whose favour it had been executed. In the latter case, Grover, J., held :--
'..... that, if an instrument is not registered according to law other evidence in proof of the terms of a transaction is inadmissible. The effect of the combined operation of the provisions of Section 49 of the Indian Registration Act and Section 91 of the Indian Evidence Act is that if a document is not receivable as evidence of a particular matter for want of registration, other proof of the matter, oral or otherwise, will be excluded. At the same time it is well settled that if the evidence sought to be given does not relate to the terms of a transaction but relates merely to the factum or existence of a transaction, other evidence will be properly receivable.'
Relying on the abovenoted authorities, I hold that the factum of partition and the nature of possession of the defendants of the properties in their possession could be proved by the oral and other documentary evidence relied upon by the trial Court.
11. The finding on merits that the partition had taken place in the year 1992 Bk., and the parties had been in separate possession of their respective shares since then has not been challenged by the learned counsel for the appellant.
12. Consequently, this appeal fails and the same is hereby dismissed, but without any order as to costs. The cross objections filed by the respondents have not been pressed and are accordingly dismissed.