1. The minor defendant in this case with his mother as guardian, and his two uncles, one of whom is Narasimhamurti, P.W. 3, effected a partition of their immovable property in October, 1930. As one of the terms of that partition, and in order to equalise the shares of the three members of the family, it was arranged that P.W. 3 should pay off all the family debts and that the other two should execute promissory notes in his favour for Rs. 1,500 and Rs. 700, respectively. Accordingly defendant's mother executed the suit promissory note in favour of P.W. 3 for Rs. 700 on the same day. This note was transferred by P.W. 3 to the plaintiff, who has now sued the defendant upon it.
2. The main defence raised was that the minor defendant is not liable upon the pronote. In order to meet that defence it was necessary for plaintiff to prove that the pronote was executed for necessity. To prove this he called P.W. 3, who spoke to the terms of the partition. In cross-examination he admitted that there were unregistered partition lists in existence. The lower Court held that these lists were inadmissible in evidence and consequently that there was no valid partition, no valid debt binding upon the defendant. Against this decision plaintiff has filed the present Civil Revision Petition.
3. I am unable to agree with the language in which the lower Court has formulated its decision. It is well settled, that there can be a valid partition without any document at all. See Ram Gopal v. Tulshi Ram I.L.R. (1928) All. 79. But the real question is whether plaintiff is debarred from proving the terms of this partition once the existence of the unregistered partition-lists is established. If he cannot prove those terms, he cannot prove the necessity for the defendant's guardian to execute the pronote and he must fail. Not without reluctance I have come to the conclusion that the lower Court's decision is right.
4. I have had a translation of one of the partition-lists before me and it is obvious from it, indeed it was not seriously challenged by petitioner's learned advocate that it is a document which requires registration under Section 17 of the Registration Act. Under Section 49 it cannot therefore be received in evidence unless it satisfies one of the conditions of the proviso. This is not a case in which plaintiff can take advantage of Section 53-A of the Transfer of Property Act, for that section relates only to the retention of immovable property of which P.W. 3 or plaintiff might be in possession. Nor do I see how the promise to pay Rs. 700 can be called a 'collateral transaction'. It is obviously one of the terms of the partition itself and Samuvier v. Ramasubba Aiyar : AIR1931Mad580 and Bhabi Dutt v. Ramalalbyamal A.I.R. 1934 Rang. 303 are clear authority for the position that though plaintiff's claim is a claim for money only, if it is part of an agreement which affects immovable property and that agreement must be regarded as 'an indivisible whole to effect a fair distribution of the assets' to quote from Samuvier v. Ramasubba Aiyar : AIR1931Mad580 plaintiff cannot be permitted to tender his unregistered document in evidence.
5. Plaintiff being thus unable to tender the partition-list in evidence, is next confronted with Section 91 of the Evidence Act which lays it down in unmistakable language that he cannot also tender any oral evidence of the terms of the partition. The result is that he can give no evidence at all of those terms and cannot prove any necessity for the execution by defendant's guardian of the pronote. This Civil Revision Petition must accordingly be dismissed with costs.