M. HIDAYATULLAH, C.J.
1. This is an appeal from the judgment of a learned Single Judge of the High Court of Madhya Pradesh at Jabalpur reversing the decesions of the two courts below. The facts of the case are as follows:
2. To understand the facts we append first the genealogy of the parties to this suit:
“Radhakrishna Bhatt (died in about 1920 A.D.)Dattatrayarao (died in 1946) Sadasheorao (died during pendency of the suit on 13-4-1957) Madhorao (died in 1922) Laxmanrao (not traceable) Raghunatharao (died on 5-12-45) Smt Manorama Bai (Plaintiff 5) Rajabhau Indubai (Deft. 1) Govindrao (Deft. 2) Balabhau Ramji Shridhar Shanker Narayan Sheoram (Plaff. 1) Rajnikant (Plaff. 2) Sudhakar (Plaff. 3) Santosh (Plaff. 4)”
It will appear from the genealogy that the common ancestor of the parties (excluding the assignees) was one Radhakrishna Bhatt who died in the year 1920. This Radhakrishna Bhatt had five sons, Dattatrayarao, Sadasheorao, Madhorao, Laxmanrao and Raghunathrao. Dattatrayarao died in the year 1946; he was predeceased by his two brothers, Madhorao who died in 1922 and Raghunathrao who died on 5-12-1945. One brother, Laxmanrao was said to be untraceable for 30 years and was therefore presumed to be dead. The suit from which this appeal arises was filed by the four sons of Raghunathrao and his widow Manorama Bai on August 9, 1956. During the pendency of the suit, Sadasheorao also died on April 13, 1957. The suit was directed against the daughter Indubai and son Govindrao of Sadasheorao. Both sides appeared to have made assignments of the suit properties by sale in favour of strangers. Defendants 3 and 4 who are the appellants here are the transferees from Sadasheorao and the other transferees from the heirs of Raghunathrao were not joined in the suit either as plaintiffs or as defendants.
3. The plaintiffs claimed possession from the defendants of certain lands which they described in Schedule A to the plaint. Their case was that in the year 1939 negotiations for an oral partition commenced which were finalised in May 1942 and the final partition was orally completed. The suit lands fell to the share of Raghunathrao and the plaintiffs were dispossessed by the defendants and hence the suit. According to the plaintiffs immediately after the partition, certain lists were executed by the parties betokening the share of the lands and houses which had fallen to their respective shares and that showed how the partition had proceeded. According to the defendants the partition took place in quite a different way. They pleaded that two of the lists which were signed by Govindrao (one of the answering defendants) were not authorised by Sadasheorao the father who was then alive and therefore they are of no consequence. They also pleaded that these documents
were obtained by misrepresentation by Raghunathrao after the alleged date of partition. The exact manner of the partition as alleged by the defendants was that two of the branches namely those of Dattatrayarao and Madhorao went out after obtaining partition of their shares but the branch of Sadasheorao continued joint. It is not clearly pleaded as to how this partition was effected, whether by registered deed or through panchas or orally. The question therefore boils down only to one, namely, whether the partition had in fact taken place in May 1942 orally as alleged by the plaintiffs or that it took place in some other way as alleged by the defendants.
4. The vital evidence in the case was supplied by the exhibits which were the receipts executed by the different branches which came from the possession of Raghunathrao. It is in evidence that previously Dattatrayarao was in management of the property of the joint family as the Karta but later when the family get into debts, the management was taken over by Raghunathrao in whose possession the entire property remained till the alleged partition. The existence of these receipts was pleaded by the plaintiffs to indicate that after the oral partition, Raghunathrao had to make over the shares allotted at the partition to the different branches and therefore he obtained receipts from them of having received the properties in their possession. That is how the case was put forward by the plaintiffs.
5. The defendants raised the objection that these documents were not admissible in the absence of registration as required by Section 17 of the Indian Registration Act since they purported to effect a partition and also concerned property above the value of Rs 100. The trial court found in favour of the defendants. It did not wholly accept their case but found an in-between case of a partition by which two branches of the family got separated and the other two remained joint. On appeal to the District Judge by the plaintiffs, the decree was confirmed. The learned District Judge declined to take into account the receipts since in his opinion they required registration. The judgment of the learned District Judge has been rightly described as extremely sketchy by the learned Single Judge in the High Court and we also are of the same opinion. The learned Judge in the High Court on second appeal reconsidered the question of the admissibility of the receipts, and came to the conclusion that they were admissible, because they did not require registration. In view of the fact that the learned District Judge had not taken this evidence into account, he considered himself free to reach his own conclusion on facts and having gone into the evidence, he found that the partition as alleged by the plaintiffs had been proved in the case and that the suit lands had fallen to the share of the plaintiffs. In this view of the matter, he decreed the plaintiffs' claim. This second appeal is brought by special leave of this Court.
6. Three questions were mooted before us by Mr Sarjoo Prasad for the appellants, who, as we stated before, are not members of the family but the two transferees from the branch of Govindrao. Their interest in the property is only derivative and it seems strange that the family members who were challenging the partition should not have cared to appear in this Court. It seems to us that both sides had probably entered into champertous agreements and that those were persons who were financing the litigation. Otherwise an appeal by the assignees and not by the original members of the family seems inexplicable. However, as they were defendants in the suit, they have a right of appeal and we have heard them.
7. The three points to which we referred were that: (1) that the learned Single Judge interfered in second appeal with findings of fact which he was not entitled to do under Section 100 of the Code of Civil Procedure, (2) that his decision that the receipts were admissible in evidence without registration was erroneous, and (3) that the transferees from the plaintiffs ought to have been joined in the suit as necessary parties, because no decision could be given without them since the plaintiffs would in that event be only asserting a jus tertii which they were not entitled to do.
8. Of these three points, the first hardly merits consideration. The learned District Judge rejected the vital evidence in the case. Once that position is admitted, it is quite clear that the finding of fact was assailable in second appeal, because the totality of the evidence had to be considered and if some vital evidence was left out on a wrong appreciation of the legal position, the findings would obviously stand vitiated. We are therefore of the opinion that the learned Single Judge in the High Court was within his rights in re-considering the evidence and reaching a conclusion about the oral partition after throwing into the balance the evidence which had been improperly rejected in the court below.
9. This brings us to the second point, namely, whether the receipts were admissible in evidence without registration. These receipts were executed not by the brothers who were at that time the elders representing the branches but were executed by the sons. It is not necessary to refer to all the receipts that were executed because all read the same. It is therefore sufficient if we refer to one of them and we take as example Ex. P-26 which was executed by Ramji. We may point out that he had the original of that exhibit also read to us from the paper-book of the High Court and we find that the translation seems accurate particularly in those parts in which the past tense is used in referring to the partition. This exhibit reads as follows:
“Receipt No. 1 executed in favour of Pandit Raghunathrao son of Radhakrishna Brahmin Lambardar of Mouza Amasel by Dattatrayarao son of Radhakrishna, and Balabhau and Ramji sons of Dattatrayarao Brahmins Co-sharers of Mouza Amasel, Tehsil Harda, District Hoshangabad to the following effect:
Out of our joint immovable property, Sir and Khudkast fields and Chhota Ghas we have received from you No. 363 area 17.36 pipalwala. No. 370 area 11.24 Mahuwala, No. 368 area 5.01 Leemavali, No. 484 area 12.26 Maruwala, No. 162 area 8.91 Bid and No. 404 area 0.72 Khala, total area 55.50 of our share. And out of our residential place, the Bada, in the abadi we received (the portion) of the Western end beginning from the Kot 105 feet long from North to South and 40 feet wide from East to West and also the 36 mango trees which have come to our share as per details given below:
32 mango trees of Juna Bagicha, 2 mango trees of Kanchankheda. 1 mango tree standing on the embankment of Mahuwala field and 1 mango tree of the Khala of Dholi. Total 36 mango trees were received by us. At present partition has been done of the fields, mango trees and Abadi side mentioned above we have received the aforesaid property of our entire share in complete satisfaction. Now no changes shall be made in it and besides the above no other right or claim. Hence we have executed this receipt with our free will and pleasure so that it may remain on record.
Ramji son of Dattatrayarao
for self and on behalf of Datta-
Date 17-5-42 trayarao and Balbhau.”
The question therefore is whether this receipt and the other receipts which ran in a similar way required registration. Now the law is settled that if a partition is made by a formal document and the property affected is above Rs 100 in value, the document requires registration. It is equally well-settled that if the document is not a formal document effecting a partition, but is only one which merely acknowledges a former partition orally made or is merely a memorandum of what was decided at the oral partition, it does not require registration. It is hardly necessary to refer to the rulings on the subject which are numerous. One such ruling is to be found in Ganpat Gangaji Patil v. Namdeo1 in which Mr Justice Bose (as he then was) laid down this proposition in clear terms at p. 76. He referred to an earlier judgment of his own reported in Narayan v. Cooperative Central Bank, Malkanpur2 in which he had based himself on two decisions of the Privy Council. We need not encumber this judgment with citations of these authorities, because this Court has also stated the same proposition in Kashinathsa Yamosa Kabadi etc. v. Narsingsa Bhaskarsa Kabadi etc.3 Mr Justice Shah on that occasion made distinction between the two kinds of documents, namely, one which requires registration and the other which does not, in the following words:
“It is however clear that if the record made by the Panchas in so far as it deals with immovable properties, is regarded as a non-testamentory instrument purporting or operating to create, declare, assign, limit or extinguish any right, title or interest in immovable property, it was compulsorily registerable under Section 17 of the Registration Act, and would not in the absence of registration be admissible in evidence. But in our judgment, the true effect of what are called awards is not by their own force to create any interest in immovable property; they recorded divisions already made and on the facts proved in the case, their validity depends upon the acceptance by the parties. The records made by the Panchas were documents which merely acknowledged partitions already made and were not by law required to be registered.”
The same view, although we may say with respect, not so clearly stated, appears from another decision of this Court reported in Nanibai v. Gita Bai Kom Rama Gunge4. The distinction, in spite of some difficulty in appreciating it, is apparent even in that judgment. However, we think that the law is well-settled that a memorandum or acknowledgement of a partition already effected orally does not require registration unless it be that by that very document the will to separate and the manner of the partition is to be deduced.
10. Applying this test to the document i.e. the receipt, which we have cited and other receipts which are very similar, we find that they are merely receipts of having obtained from Raghunathrao who was in possession of the lands, the lands which at the partition had already been assigned to the party. The receipts are quite clear. They show a partition already effected and the receipts only show that the property was being handed over in possession of the party, to whom it was assigned. In this view of the matter the learned Single Judge in the High Court was right in holding that the documents did not need registration. That being so, the matter was at large before the learned Single Judge to reach his own conclusion as to the fact of partition and having examined the evidence on the subject, we are inclined to agree with him that the partition did in fact take place in May 1942 and that the properties assigned to the respective parties were noted as memoranda in the receipts which were later executed.
11. It was contended that Govindrao in any case could not agree to partition the property of his father when the father himself was alive. In this connection, it appears to us that the brothers were not fighting so much as the cousins and the fact that the receipt in every instance is executed not by the elder member but by his son shows that the brothers left the matter to these boys. In fact Ex. P-5 which is a letter of February 14, 1939, written by Sadasheorao indicates how the partition was being planned. He states in that letter that he had no concern with the property but as his share was involved, he had left it to his son to deal with the matter. It is significant that immediately after the partition Sadasheorao gave a power to attorney to his son which was in keeping with his earlier declaration in Ex. 5. It is also in evidence that immediately after the partition the respective parties began to deal with these properties as their own according to their shares. Ex. P-7 and Ex. P-33 show that the properties assigned to these branches came respectively to be dealt with by the representatives of these branches. It was however submitted that the documents were executed by Govindrao in November 1942 when the partition had taken place in May 1942. It was suggested in the trial court and it was so accepted by the first court of appeal that these documents appear suspicious and had been obtained from a weaker member of the family by some undue influence. We think that there may be several reasons why this document in particular came to be executed a little later. The other documents were executed immediately after the oral partition. It was admitted by Govindrao in his evidence that he was absent from the village between April and November 1942 having gone to his father-in-law's place. Mr Sanghi relied on this to show that the delay was explainable became of Govindrao's absence from the village where the partition had taken place. On the other side, it was contended that if in April itself Govindrao had left, he would not have been available for the partition. We think that the evidence of Govindrao is not strictly to be construed. As we stated earlier, there may be many reasons why the document of Govindrao was delayed to November. It is to be remembered that Sadasheorao was not taking any interest in the partition and he may not have approved of what his son had done and therefore delayed the execution of the document to November. The fact remains that there is nothing to show that there was any undue influence exercised on Govindrao to extract this document from him. This document speaks very strongly in favour of the plaintiffs' case that the lands which are the subject-matter of litigation here did not fall to the branch of Sadasheorao. It appears that as Raghunathrao was in possession of the entire property as manager, he began handing over possession of the respective shares to the branches and as he did so, he obtained receipts from them. It was stated that there is no receipt from Raghunathrao on the record but there can be none, because Raghunathrao would not be giving a receipt to himself. It may be that the partition was not quite equitable because Raghunathrao earned to himself considerably more lands than were given to the other branches; but if that was so, the partition would have been questioned long time ago as an inequitable partition either by Sadasheorao or by any of the other parties. That this was not done, shows that the parties were satisfied with what had taken place. Indeed the actings of the parties immediately after partition prove the case of the plaintiffs that they had accepted the partition and begun acting upon it.
12. In reply, Mr R.L. Sharma followed Mr Sarjoo Prashad (who had first opened the case) drew our attention to certain khasras in which some fields seemed to be recorded quite differently from the partition list and he contended that this showed that the partition was not final and that it did not follow the receipts which had been executed in the case. We do not know under what circumstances these khasras entries came to be made as late as 1953. It is well-known that these entries are sometimes wrongly made. In fact in the opening part of the debate before us these khasras were not relied upon. On the basis of these khasra entries Mr Sharma invited us to re-open the findings and to remit the case to the learned Single Judge in the High Court for a fresh decision after assessing the evidence again in the light of those khasra entries. We do not think that we should do this. In the judgment of the learned Single Judge, there is no reference to the khasra entries at all and it appears to us that this is an after-thought which has materialised rather at the end of the arguments before us. We therefore see no reason to reverse the findings or to remit the case.
13. As to jus tertia we have only to say this that the plaintiffs having sold the properties were required to assure title to their vendees and therefore if there was any cloud on their title they were entitled to get it removed. They were only claiming the properties in their own right so as to be able to convey a clear title to their vendees. This is not a case of pleading jus tertia. In fact the plaintiffs had pleaded that the sales to the vendees were bogus and the defendants had themselves admitted that the transactions were bogus.
14. We are satisfied that the judgment under appeal is correct in all the circumstances of the case. The appeal must therefore fail and it will be dismissed with costs.