Kumaraswami Sastri, J.
1. This appeal arises out of a suit filed by the plaintiff who is the daughter of one Rama Somayajulu for possession of the properties mentioned in the plaint and for an account from defendants 1 and 9 for the management of suit properties on plaintiff's behalf and for a decree for payment of such sum as may on the taking of the account be found due to the plaintiff. The case of the plaintiff is that her father Rama Somayajulu and the 1st defendant's father, Narasimha Somayajulu were brothers, that they became divided by a registered deed of partition in 1902, that since then the properties which fell to the share of Rama Somayajulu were in Rama Somayajulu's possession and on his death were taken possession of and managed by the 1st defendant on behalf of the plaintiff and her mother and that the plaintiff is entitled to the property. She also states that the defendant refused to hand over, though demanded, the properties said to have fallen to the share of Rama Somayajulu in partition (items 1 to 5) and properties purchased subsequent to the partition in name of Appayya, Rama Somayajulu's father-in-law, which are items 7 to 10. As regards items 7 to 10, the case of the plaintiff was that Appayya transferred the properties to her father and that she is entitled to the property.
2. The case of the contesting defendant is that although there was a deed of partition in 1902, such deed was never intended to be acted upon so far as the brothers were concerned, but the object was to separate Pattabhiramayya and Gopalakrishnayya, cousins of Rama Somayajulu and Narasimha Somayajulu, and when that was done Narasimha Somayajulu and Rama Somayajulu remained joint and undivided. The intention of Rama Somayajulu and Narasimha Somayajulu was not to divide the properties and become separate inter se. Even if the document could be construed to indicate that intention there must be deemed to have been a re-union as they never divided their properties as contemplated in the document and continued to be members of an undivided family. There were joint leases and joint dealings and after the death of Rama Somayajulu his widow and his daughter lived with Narasimha Somayajulu and were maintained and supported by him, and Narasimha Somayajulu bore the marriage expenses of the plaintiff. It is also urged that the claim is barred by limitation as plaintiff attained majority more than three years before the filing of the suit.
3. The Subordinate Judge was of opinion that Narasimha Somayajulu and Rama Somayajulu were members of a joint family. According to his view there was no partition inter se between Rama Somayajulu and Narasimha Somayajulu. He also believes that subsequent to the partition there was re-union. Exhibit XV, the memorandum of re-union, alleged on the side of the defendant to have been executed by Rama Somayajulu and Narasimha Somayajulu and said to be a forgery by the plaintiff is accepted by the Subordinate Judge as genuine. He also deals with the conduct of the parties as evidenced by correspondence and other documents and comes to the conclusion that the brothers were undivided. As regards items 7 to 10, he gives a decree for the plaintiff on the ground that they were the self-acquisitions of. Rama Somayajulu and not the joint properties of the two brothers. The plaintiff appeals against the decree of the Subordinate Judge for possession of items 1 to 6 and the 1st defendant files a memorandum of objections as regards items 7 to 10.
4. The main question in this appeal is whether Narasimha Somayajulu and Rama Somayajulu continued after the death of Rama Somayajulu to be members of an undivided family and whether items 7 to 10 are the self-acquisitions of Rama Somayajulu. The facts shortly are these : There were three brothers, Rama Jogi, Suryanarayana and Adinarayana. Rama Jogi had two sons, Pattabhiramayya, who is examined in this case as P.W. 1 and Gopalakrishnayya, who died about 1902 leaving a son Sivaramakrishnayya, who is examined as plaintiff's 4th witness. Suryanarayana died leaving a widow Kantamma and two sons, Rama Somayajulu and Narasimha Somayajulu. The 9th defendant is the widow of Narasimha Somayajulu. The 1st defendant is the son of Narasimha Somayajulu. Narasimha Somayajulu died about 8 or 9 years before the date of the suit and Rama Somayajulu died in 1904 leaving his widow who is the mother of the plaintiff. The widow died in 1910. Maha-lakshmamma was an infant when Rama Somayajulu died and the date of her birth is not seriously disputed. It is given as April, 1902. It is not disputed that there were disputes in the family between Rama Jogi's branch and Suryanarayana,'s branch and there was an award by the mediators, Exhibit XXV which is dated 25th February, 1899. This is an award which purports to have been made by two arbitrators and it sets out the relationship of the parties: It states that they gave them a kararnama on 6th December, 1896, reciting therein that all the ancestral properties consisting of moveables and immove ables and specified in the schedules thereto attached which were divided a long time ago but were held as joint till then should be partitioned and given into four shares. The award divides the property into four shares and specifies the share that each of the parties should take. Pattabhiramayya evidently was not satisfied with this award and he was raising objections on the score that the partition was not equal. In settlement of all disputes there was a partition deed executed among the four parties, Exhibit A, in the suit on 6th July, 1902. This deed of partition, so far as its terms are concerned, purports undoubtedly to be a partition of the property into four shares, each of the sharers taking a definite specified portion of the properties. Plans were attached to this deed which also show the specified portions which fell under the document to the share of each. The document closes as follows:
As we have settled that each sharer should himself take the palmyra trees standing in his share, we shall cut within one year the babul trees standing on the inam lands of Nothakki village and take them in equal shares. We four shall take the fruit and branches inequal shares without allowing them to be trampled upon by the field cattle. Narasimha Somayajulu should cut, within one year, the ravi tree standing on Pattabhiramayyat's land. Each sharer among us shall enjoy his respective share hereditarily with absolute right. In so enjoying, no one of us or his heirs shall at any time raise any sort of disputes against the other. Each of us shall not dispute the other saying that there is excess or deficit in his share or that there is still some property yet to be divided. This deed of partition is executed with the consent of all of us.
5. This deed is signed by four persons. If this document had stood alone, there can be little doubt that it effects a complete severance of interest not only between Pattabhiramayya and Gopalakrishnayya but among all the four executants, namely, Pattabhiramayya, Gopalakrishnayya, Narasimha Somaya;julu and Rama Somayajulu. The main argument for the defendants is that at the time of Exhibit A there was no dispute between Narasimha Somayajulu and Rama Somayajulu inter se and that although Exhibit XXV purports to be a division of four shares, really if the latter portion of the document is considered, namely, the portion referring to Narasimha Somayajulu and Rama Somayajulu as one party and Pattabhiramayya and Gopalakrishnayya as the other and separate parties for the purpose of adjustment towards the value of some trees, it does not show any partition inter se. There is some force in this argument because the schedules as regards particulars do really treat Rama Somayajulu and Narasimha Somayajulu as members of one family in the adjustment of account. But Exhibit A which was executed two years afterwards does not keep up this method of adjustment, but as I have said before treats them as separately entitled.
6. There is, however, evidence to show that between the dates of Exhibits XXV and A, Narasimha Somayajulu and Rama Somayajulu continued to be members of one family and did not divide inter se. No doubt, correspondences and lease deeds have been put in; but I do not think they are of much value in the face of a specific statement in Exhibit A as to the partition. What we have to see is, what was the conduct of the parties after the date of Exhibit A? As regards the question of division between Narasimha Somayajulu and Rama Somayajulu, Exhibit XV, an unregistered memorandum, is put in by the defendant to show that there was really no partition between the two brothers. The genuineness of Exhibit XV is not admitted by the plaintiff. An objection is taken that even if it is genuine it requires registration. Ex. XV runs as follows:
Samshrusti Jabita (common list), dated the 6th July, 1902, jointly executed by (1) Chathurvedula Narasimha Somayajulu and (2) Rama Somayajulu, sons of Suryanarayana Garu, Brahmins, Inamdars, etc., residing in the village; of Noothakki of Guntur Taluk.
When for effecting a partition of our ancestral lands between ourselves and our senior paternal uncle's sons, Pattabhiramayya and Gopalakrishnayya, the said lands were divided into two sections, the said Pattabhiramayya Garu having stated that such allotment could not be made and equally adjusted, and that he was entitled to get a fourth share in the whole, anil that, therefore, the division should be made into four shares, so that each might get one share, and having further suggested that if we were to continue joint, we could again subsequently combine (the shares) and having thus created a complication we consented and settled the matters and entered into a partition deed with them this day. As the lands which have fallen to our half share under the said partition deed though not given any marks, have been shown in the plan as having come to us in two lots, as we two have not become divided as between ourselves, we have entered into a samshrusti as detailed hereinbelow.
So we shall as usual be exchanging pattas and muchilikas in respect of our half share, as one member. Though we own other properties, moveable, immoveable, etc., yet as we have not yet entertained any intention to partition, samshrusti is (hereby) effected.
7. It then gives the schedule of the properties referred to in the partition deed. It gives the house, inams, the lands which according to the partition deed fell to the share of these two brothers. This document is dated 6th July, 1902, the same date of Exhibit A.
8. The learned Judge then discusses the evidence with regard to Ex. XV and concludes
9. I do not think that the Subordinate Judge was right in holding that the evidence as regards Exhibit XV shows that it is a genuine document. It is sufficient for the purpose of this case to show that it has not been proved. Having regard to the various facts, it requires strict proof of Rama Somayajulu's signature before I can accept it as a genuine document. Even if it is genuine, I think it requires registration. It is admitted Exhibits A and XV really form one transaction. One was intended to be an antidote to'the other. Exhibit A in terms divides the property into four shares and gives each man an absolute and individual right. Exhibit XV affects the property comprised in Exhibit A inasmuch as it makes what was separate property joint property and, what is more, Exhibit XV gives a list of the properties which it is intended to affect. It cannot be said that Exhibit XV does not affect immoveable properties in terms. Exhibit XV, therefore, requires registration. In order to vary the terms of a contract reduced to writing under Section 92 we must have another instrument in writing, and if that instrument affects immoveable property it has to be registered. I do not think, therefore, that Exhibit XV can be used to prove that there was reunion. But this does not, however, settle the matter. It can be shown by the conduct of the parties that, subsequent to Exhibit A, they did not divide their properties which they had already got in common and continued to treat the properties as joint properties. Just as no document is required to prove a division in status and as no document is also required where the partition between the parties is oral, the law merely saying that if it is in writing and affects immoveable property it should be registered, no document is necessary for a man throwing his property or earnings into the joint stock and the members of the family treating separate properties as joint properties so that in the absence of any facts attracting the provisions of the Registration Act one can prove that the parties continued to be joint or re-united by showing their conduct.
10. There are several circumstances which show that, subsequent to the deed of partition, Narasimha Somayajulu and Rama Somayajulu dealt with the properties and treated each other as members of a joint family.
11. The learned Judge then discusses the evidence with regard to the re-union and concludes
12. It seems to me that the cumulative effect of all these, in the absence of any evidence to show that the parties dealt 'with any of the properties which fell to them in partition as separate property, that he either had leased or borrowed money on it or created a mortgage on charge is clearly that at the date of Rama Somayajulu's death the brothers had become re-united and that their intention was to live as members of one family. It is argued that the conduct of the widow who had only a life-interest in the property in having allowed 1st defendant to be in possession of the property for a long time would not prejudice the daughter's claim. The question is not whether the conduct of the widow in any sense prevents the daughter from putting forward her claim. But the question is whether such conduct of the widow does not probablise the case of the defendants whether the brothers remained joint or not at the time of Rama Somayajulu's death. It may be said that the widow was ignorant of the rights, but then there is the fact that there was her father Appayya, presumably a man of business, as he was managing the lands of the brothers, and it is not suggested that he did not know the real state of affairs, that he did not know of the partition deed and that he did not know that the brothers were divided, if as a matter of fact they were. When we find that not only before the death of Rama Somayajulu but afterwards things went on as usual he should have known that they were members of a joint family. If after the death of Rama Somayajulu with the knowledge and willingness of her father and other male relations she claimed only maintenance and never asserted a right to these lands which according to the partition fell to the share of her husband, I think the inference is irresistible that the brothers, whatever may be the reason, did not want to live as members of a divided family and, as if the partition never took place, continued to treat themselves as joint. Unfortunately, both Narasimha Somayajulu and Rama Somayajulu are dead. The 1st defendant is a young man about the same age as the plaintiff and it is impossible for us to get an explanation of the letters and we have to make the best of the letters taking into consideration the circumstances and the language of the letters. In a case like this, we have to see whether the transaction subsequent to Exhibit A support the case that the parties, for some reason or other, became members of a joint family and dealt with the properties as such. Taking all these facts and having.- regard to the fact that there is not a single document excepting Exhibit A to show that they treated the properties as separate I think that the whole subsequent conduct of the parties supports the finding of the Subordinate Judge.
13. As regards the question of limitation I think there is no question of limitation at all in this case. It is admitted that both the widow and her daughter lived with Narasimha, Soma-yajulu and that they were under his protection. Adverse possession would not avail so far as the daughter is concerned, because she does not claim through the widow. The widow has only a widow's interest in the matter and adverse possession can only be of a limited interest, and Narasimha Somayajulu could not have prescribed for anything more than a limited interest, even assuming it was adverse in her life-time. On her death the rights of the daughter began. The daughter was a minor and she continued to remain as minor till about three years before the suit. Till 1912 she was unmarried and was under the protection of Narasimha Somayajulu. I do not think it is open to a person who takes charge of a minor and protects her to plead that as regards her properties he has adverse possession. The law is clear that a person who is either an actual legal guardian or who takes upon himself the guardianship of a minor cannot be-heard to say that his possession must be taken to be adverse to the minor. If any authority is needed, I may refer to Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite I.L.R. (1910) B. 79, where the mistress of a person after his death was protecting his minor sons and managing the property and claimed adverse possession, it was held that so long as she acted as guardian or agent she could not do so. It follows that so long as a person is in charge of a minor's property as guardian that person is only an agent or trustee and cannot set up adverse possession. I may refer in this connection to Howard v. Earl of Shrewsbury (1874) 17 Eq. 378. Reliance is placed by Mr. Raghava Rao on Seciaramarafu v. Stibbaraju I.L.R. (1921) M. 361 : 1921 42 M.L.J. 262. But that case does not help him in any way, because all that case lays down is that in respect of adverse possession, though time begins to run against a lunatic, an extended period of limitation is given and he will be entitled to file a suit within 3 years after he becomes sane. It that case there was no question of guardianship between the parties. I think the Subordinate Judge was right in holding that there was no limitation so far as plaintiff was concerned. I have come to the conclusion that so far as items 1 to 6 are concerned the plaintiff will not be entitled to the' separate property of her father Rama Somayajulu.
14. As regards items 7 to 10 I do not think there is sufficient ground to disturb the finding of the Subordinate Judge that the property was bought by Rama Somayajulu.
15. The learned Judge then discusses the evidence on the point and concludes
16. So far as items 7 to 10 are concerned I do not want to disturb the finding of the Subordinate Judge.
17. The whole trouble has arisen from Rama Somayajulu and Narasimha Somayajulu executing a partition deed and immediately not giving effect to it.
18. In the result the appeal fails and is dismissed. But considering the conduct of the defendant in putting forward Exhibit XV and the two post cards, which I do not think are genuine, and also the plea of adverse possession as against plaintiff who was under his father's protection and who was bound to protect her during her minority, I think the proper order will be to make the 1st deft, pay the institution fee due to Government both in this Court and in the Court below and make him also pay proportionate costs as regards items 7 to 10 both here and in the Lower Court. Other costs will be borne by each party as regards the appeal.
19. The memorandum of objections is dismissed with costs.
20. I agree that Exhibit A must be taken as having effected a fourfold partition between the parties to it and that the effect of it cannot be whittled down by the award, Ex. XXV, or by anything else which happened before the date of Ex. A. I think, therefore, we must start in this case with the fact that there was a partition between the four parties under Exhibit A in July, 1902. The question is whether there was after that a re-union between the plaintiff's father, Rama Somayajulu and the defendant's father, Narasimha Somayajulu. As Mr. Rama-chandra Aiyar has urged, reunion is a rare thing, and we ought not lightly to accept a story of re-union following a definite partition effected by a registered document in that way. But in connection with this I think it is proper that we should remember that the parties to Exhibit A were not co-parceners in an undivided family at the date of Exhibit A. The evidence of P.W. 1, Patta-bhiramayya, one of the parties to that partition, shows that there has been an earlier division between him and his brother on the one side and their cousins, Narasimha Somayajulu ajnd Rama Somayajulu on the other. He says that after the death of his uncle Adinarayana, Adinarayana's widow in 1888 filed a suit for maintenance, and on that happening the family was divided in that way; there was a division of moveables and since that time Suryanarayana's sons, the brothers Narasimha Somayajulu and Rama Somayajulu on the one side lived jointly and separately from Pattabhiramayya and his brother Gopalakrish-nayya on the other. He also says in another part of his evidence that they became divfded like that 5 or 6 years after his father's death, which appears to have occurred about 50 years before he gave evidence in 1925. The evidence is that the partition deed, Exhibit A, was executed not for the convenience of Rama Somayajulu and Narasimha Somayajulu in any way, but to suit the convenience of Pattabhiramayya and his brother Gopalakrishnayya. And it appears that Rama Somayajulu and Narasimha Somayajulu had no particular reason for becoming divided at that time. In the circumstances we start with no inherent improbability in the story that Narasimha Somayajulu and Rama Somayajulu immediately after the execution of Ex. A decided that they would re-unite and live as members of an undivided family.
21. The learned Judge discusses the evidence with regard to the alleged re-union and proceeds
22. Then there is Exhibit XV, an unregistered document, which has been put forward to show that on the very date of Ex. A the two brothers, Rama Somayajulu and Narasimha Somayajulu, effected a re-union. I agree that, so far as that document affects immoveable property--and it obviously affects such property--it is inadmissible in evidence because it is unregistered. That does not, however, meet Mr. Raghava Rao's argument that it can be used to show that there was a re-union in status between Narasimha Somayajulu and Rama Somayajulu. Mr. Raghava Rao argues that the opinion has been expressed in several cases that an unregistered partition deed, which purports to divide the property of a Hindu family into separate plots, though it cannot be used to prove the division of the property, can be used to prove a division in status. And he argues from that that in the same way an unregistered re-union deed can be used to prove a re-union in status. I think in the latter part of this argument there is a fallacy, and I will try to explain exactly where to my mind the fallacy lies. The most authoritative example in recent years of the principle on which the opinion that an unregistered partition deed, which cannot be used to prove a division of property, can yet be used to prove a division in status rests is the ruling of their Lordships of the Privy Council in Varada Pillai v. Jeevarathnammal (1919) L.R. 46 IndAp 285 : I.L.R. 43 M. 244 : M.L.J. 313, though that case did not deal with a partition deed. If we examine that ruling, we find in it nothing to affect the ordinarily accepted interpretation of the prohibition in the Registration Act under which an unregistered document purporting to create, declare or limit any interest in immoveable property of the value of Rs. 100 or more cannot be used to prove that transaction. The effect of the ruling of the Privy Council in Varada Pillai's case is that, while such a document cannot be used to prove such a transaction, it can be used to prove a different fact relating to the property even though that fact is ultimately connected with the transaction.
23. In Varada Pillai's castf an unregistered document was produced to prove a gift of land. Their Lordships did not admit it to prove the gift; but they admitted it for the purpose, of showing that the alleged donee's possession of the land had been adverse to the alleged donor from the date of the document and not on behalf of the donor. That was a different fact from the alleged gift, a distinct fact, a fact capable of being dissociated from it, which did not necessarily involve or imply the gift. The result of that ruling is that an unregistered document, which we are prohibited by the Registration Act from using to prove the transaction embodied in it, may be used to prove some different fact relating to the property and connected with thej transaction so long as it is a distinct fact, a fact capable of dissociation from the one which the Registration Act forbids us to prove by the document, a fact not necessarily implying or involving that forbidden fact. That ruling shows the lengths to which we may go in proving by an unregistered document facts connected with a transaction in respect of immoveable property without transgressing the provisions of the Registration Act. But Varada Pillai's case41 is certainly not an authority on the strength of which we can use an unregistered document to prove indirectly the very fact which the Registration Act forbids us to prove by it.
24. For instance, if the Registration Act forbids us to use an unregistered document to prove fact A recorded in it, we can use the document to prove fact B, provided that fact B is really distinct from fact A, capable of dissociation from it and does not necessarily involve or imply fact A; but, if fact A necessarily follows from fact B and is implied in it, then we cannot use the unregistered.document to prove fact B and so indirectly to prove fact A, as thereby we should be contravening the provisions of the Registration Act. Let us apply this to an unregistered partition deed purporting to divide the property of a family specifically into separate plots and distribute them among the members. It is admitted that the partition deed cannot be used to prove the division of the property. But the opinion has been expressed - and I venture to think rightly - that it can be used to prove a division in status, which we can dissociate from, and which does not necessarily imply, a division of property. It is true that a division in status must carry with it either a change from joint tenancy to tenancy-in-common or a change from joint tenancy to separate ownership of specific property. But, as we have proved a division in status, we have not necessarily proved any division of the property into specific plots; the change in ownership may not have gone beyond tenancy-in-common, or it may have gone further to the stage of actual division of the property; whether the second stage had been reached remains unknown. It may perhaps be said that even if there be a mere change from joint tenancy to tenancy-in-common, that change affects immoveable property. But I think, if we consider the matter, it is quite clear that that change does not 'affect' immoveable property within the meaning of Section 49 of the Registration Act as we must now interpret it. It had been finally decided by their Lordships of the Privy Council in Girja Bai's case (1916) L.R. 43 IndAp 151 : 1916 31 M.L.J. 455 and in Surmj Narain's case (1917) L.R. 44 IndAp 201 : I.L.R. 40 A. 159 : 1917 33 M.L.J. 180 that a division in status may be effected and proved by something very much less than a registered document. If the change effected by a division in status, the change from joint tenancy to tenancy-in-common, was a change 'affecting' immoveable property within the meaning of Section 49 of the Registration Act, the decision in Girja Bai's case5 would have been impossible. I, therefore, think it is clear that, when we say that a division in status necessarily affects property, because what was originally held in joint tenancy has become property held by tenants-in-common, that is not a change 'affecting' immoveable property within the meaning of Section 49 of the Registration Act, and, therefore, a division in status can be proved by an unregistered document without violating Section 49 of the Registration Act.
25. But can we on the same principle, as Mr. Raghava Rao suggests, use an unregistered document, to prove a re-union in status in a case like this, where by the terms of a registered, partition deed the family property has been divided into specific plots and distributed among the members? It is admitted that we cannot use an unregistered re-union deed to prove a re-union of the property; but it is suggested that we can use it to prove a re-union in status. But, suppose it is used to prove a re-union in status, can we stop there? The very moment we have proved the re-union in status we have ipso facto proved the change in the property, the amalgamation of the separate ownership into joint ownership. We cannot dissociate the two things; the one involves the other. If, therefore, we have proved a re-union in status, ipso facto we have proved a re-unionof property, a fact which the Registration Act forbids us to prove by an unregistered document. To my mind it is clear that we may prove a division in status by an unregistered partition deed, but we cannot prove by an unregistered document following a registered partition deed, which had divided the property into specific plots, either a re-union of the property or a re-union of status, which necessarily involves the re-union of the property.
26. I agree that there is considerable doubt whether Ex. XV is a genuine document. But, even if it were a genuine document, I should have no doubt that it could not be used, being unregistered, to prove the re-union of status, which necessarily involves re-union of property.
27. Mr. Raghava Rao has suggested a further use to which Exhibit XV could be put, namely, to prove that the parties had at the time of its execution the idea of re-union in their minds. Technically I think the document is admissible for the purpose. But in my opinion it would be of very little avail in that way to Mr. Raghava Rao's client in the present case.
28. I agree however that, leaving Exhibit XV out of consideration altogether, there is sufficient evidence in the circumstances of the case to show that there must have been a re-union between Narasimha Somayajulu and Rama Somayajulu after the date of Exhibit A.
29. On the other points of the case I agree that the plaintiff's claim cannot be held barred by limitation. Adverse possession against Subbamma would not have effect against the plaintiff; and limitation could not have begun to run against the plaintiff while she was a minor in the de facto guardianship of her father's brother.
30. I agree also it is hot shown with sufficient clearness that Narasimha Somayajulu contributed to the purchase money for items 7 to 10 to make it necessary for us to interfere with the finding of the learned Subordinate Judge on that point.
31. I agree, therefore, that both the appeals and the memorandum of objections must be dismissed and that the costs should be borne in the manner proposed by my learned brother.