Sankaran Nair, J.
1. The original plaintiff in the suit, Aiyasami Iyer sued his brothers the 1st and 2nd defendants, the 3rd defendant, adopted son of the deceased brother and certain others for partition. He died in the course of the suit and his widow claiming to prosecute the suit as his representative has been made the 2nd plaintiff. The important question for decision is whether Aiyasami was divided from the other members of the family. If undivided his interest will lapse to the defendants by survivorship as he left no son.
2. In an agreement between the plaintiff and his co-parceners dated the 5th September 1901 reciting that owing to disagreement they 'have become separated from this date Aiyasami Iyer one of us being alone the other three being together,' they made certain arrangements with the family property. To their mother and sister, the 4th and 5th defendants in the present suit, they allotted certain properties in schedules D and E attached to Exs. A and B. They set apart the properties in schedule C for charity. The properties in A schedule are assigned to defendants Nos. 1, 2 and 3 and in B schedule to the plaintiff, and it was agreed that the rest of the properties were to be divided in three months in equal shares among them. On the 11th January 1902 there was a division of the debts due to the family and in adjustment of their claims the plaintiff executed a pro-note for Rs. 5,000-0-0 to the other co-parceners and obtained from the debtors renewals of the bonds in his own name. He undertook to pay his share of the debts due by the family and executed bonds to the creditors. On the 20th April 1902 some bonds not divided on the 5th September 1901 were divided among the co-parceners. Lists were separately paid. The 2nd defendant in a statement before an Income Tax Officer (Ex. M) pointed out that the plaintiff should pay his own assessment, our status having become a divided one' and in May 1902 Aiyasami Iyer brought the present suit setting out the division of the 5th September 1901, the subsequent apportionments and possession thereunder and claimed partition of the family properties not yet divided and also of the properties in schedules D and E of Exs. A and B allotted to the mother and sister on the ground that his consent thereto was obtained by fraud. In their written statement the defendants insisted on the agreement dated the 5th September 1901 being carried out, if at all, in its entirety, admitted the subsequent divisions and stated that they had no objection to the plaintiff's title to certain nanja lands, which they said had been put in plaintiff's possession according to the agreement, being declared.
3. On these, facts the only possible conclusion is that Aiyasami was a divided member of the family. There was a division of right though not of all the properties and his widow is entitled to claim a division of the properties left undivided at his death.
4. In appeal it is argued before us that the suit is based on Ex. A the agreement of the 5th September 1901 and it is not, therefore, open to the 2nd plaintiff to rely upon the subsequent conduct of the parties to prove any division, that Ex. A is inadmissible in evidence for want of registration, and the suit, therefore, must now be dismissed.
5. With reference to the first contention the learned Pleader for the appellants rightly conceded that on the death of the original plaintiff it was open to his widow to rely upon not only Ex. A but also the subsequent conduct of the parties to show that her husband was a divided member for the purpose of being allowed to prosecute the suit. In the affidavit filed in support of her claim, all the above facts with some others in addition are recited. The 44th issue is raised to try that question, and if, on the facts set out by her in support of her claim, it appears that the plaintiff Aiyasawmy Iyer was a divided member of the family and the 44th issue is found in her favour, that decision is clearly binding on the parties and it is not open to the defendants to claim a retrial of the question for other purposes. Nor is it clear that the suit is based on Ex. A only. The document itself is not referred to in the plaint. All the facts are set out in the plaint and if a plaintiff is entitled to relief on the facts alleged in support of his claim, he is entitled to it. The plaintiff in effect asserted that he was a divided member and claim partition of the lands not already divided.
6. Even excluding Ex. A the evidence as pointed out by the Subordinate Judge can lead only to one conclusion. The division of the properties movable and immovable and the execution of the bonds by the plaintiff cannot be explained away, as suggested, on the ground that it proves a division of only those properties and do not necessarily suggest a division of right. The admission of the 2nd defendant, a High Court Vakil, that the plaintiff is divided in status in Ex. M already referred to, places the matter beyond any doubt, and the division of the properties etc. must, therefore, be referred to the divided status of the family. In this view it becomes perhaps unnecessary to decide the question of registration.
7. So far as the division of the immovable properties in Ex. A is concerned, the document undoubtedly requires registration to be admitted in evidence of any transaction affecting such immovable properties. They create and declare interests in such property. But the question is whether such an instrument requires registration when it does not divide the immovable properties or is not produced in proof of such division and only declares a division of right, or, is only produced to prove it. It is, no doubt, the policy of the legislature that all documents affecting immovable property should be registered. But a deed of division of right by itself does not operate to create interest vested or contingent in immovable property. It was contended by the Hon'ble Mr. V. Krishnasami Iyer that such partition has the effect of converting the joint tenancy of an undivided family into a tenancy-in-common of the members of that undivided family, and as it thus effects an alteration in the estate any document which effects only a division of right without dividing the properties requires registration. This may be so if the document itself operates to convert a joint tenancy into a tenancy-in-common but, it is not the instrument that makes the alteration, when by virtue of the document the members become divided in interest, then the rule of Hindu Law converts their relation into one similar to a tenancy-in-common. An alteration in the mutual relation of the members of a Hindu family may be effected without any change in the nature of the estate in the family property as there is nothing, in my opinion, to prevent the parties from agreeing to continue to hold the property as joint tenants. The alteration in the nature of the estate is not the offspring of any contract bat it is an incident attached by Hindu Law to the divided status of the members of a Hindu family. The policy of the registration law does not require registration.
8. So far as intending purchasers are concerned it makes little difference in the investigation of title whether the properties are held by a Hindu family as joint tenants or as tenants-in-common. Ex. A, therefore, in my opinion, is inadmissible in evidence to prove the transaction in so far as it affects the immovable properties divided among the parties but it is admissible to prove that the coparceners therein referred to have become divided members.
9. The finding of the Subordinate Judge that Aiyasami Iyer was at the time of his death divided from the other members of his family must, therefore, be accepted. His widow, the 1st respondent before us, is, therefore, entitled to recover his share.
10. It is next contended that the Subordinate Judge having found that there is only one set of law reports was wrong in valuing them at Rs. 250. This appears to be a mistake. It will, accordingly, be reduced to Rs. 125.
11. It is unnecessary to refer to arguments addressed to us in support of the objections taken to the findings of the Subordinate Judge on the issues relating to other items of property. The evidence has been fully discussed by him in his judgment and I agree with his conclusions for the reasons he has given.
12. The decree will be modified as to the value of the law books, in other respects the appeal is dismissed. The appellants will pay the 1st respondent her costs. The memorandum of objections also is dismissed with costs.
13. My learned colleague differs with reference to items Nos. 34 to 37 of schedule II Part II of the plaint. There will, however, be the final decree even as to those items under Section 575, C.P.C.
14. There can, I think, be no doubt that Ex. A is an instrument of partition ' as defined in Section 2 Clause 15 of the Indian Stamp Act. The pleadings in the suit show that both sides were conscious of the fact. The plaint is entirely based upon this agreement though it carefully avoids mentioning any document and refers only to this 'agreement of 5th September 1901' without alleging that it was reduced to writing. So also the written statement which, instead of referring to Ex. A itself, refers to the copy of it that was filed as a razinamah, in O.S. No. 175 of 1901 on the file of the District Munsif of Tiruvalur Vide Ex, B, The document was only stamped as an agreement with an eight anna stamp, hence no doubt the neglect to register it. Under Section 49 of the Registration Act it cannot affect any immovable property comprised therein or be received as evidence of any transaction affecting such property. It has been impounded by the Subordinate Judge. But it is admissible to prove the fact of a partition having been effected and the second or supplemental plaintiff is entitled to rely on it in support of her right to continue the action brought by her husband.
15. It is also admissible to prove the arrangement come to regarding the movables Vide Tandawaraya Mudali v. Valli Ammzl (1863) 1 M.H.C.R. 398.
16. The admissions the defendants do not make the document admissible as evidence in so far as the immovable property is concerned, nor secondary evidence be given of its contents, but on the authority of Chidam baram Chetty v. Karunalyavalangapuly Taver (1807)3 M.H.C.R. 342 a decree may be given in respect of so much of the immovable property mentioned in the plaint as the defendants admit in their written statement that the 1st plaintiff was entitled to, as to this extent the production of the document in Court is not necessary. As the defendants really rely on the same document they practically admit the whole claim as regards immovables. Apart from Ex. A there is ample evidence of the fact of partition on the 5th September 1901. The evidence is set forth in detail in paragraphs 7 and 11 of the judgment of., the lower Court and I hold on issue No. 44 that the 2nd plaintiff is entitled to prosecute the suit.
17. In appeal the following items of property were disputed in Plaint Schedule II Part I:
Item No. 124 in List V Law Books ' the plaintiff alleged there were two sets worth Rs. 250. One set alone was found. The Judge should have awarded to the second plaintiff one-fourth of Rs. 125 not one-fourth of Rs. 250.
Item No. 194 List V: This relates to a sum of Rs. 3,000 paid by Vaithinarayana Iyer a debtor of the family on the 28th September 1901 three weeks after partition. The plaintiff claims one-fourth of this sum as the 1st defendant collected it. The 1st defendant raises two objections. First that it went to meet the marriage expenses of his son--a family charge. The Subordinate Judge considers this a preposterous story and we agree with him. A marriageable son is a valuable asset, not the reverse. Moreover, this objection was taken in the first instance. The second objection is that the balance due by the debtor was distributed in January 1902 and this sum must be decreed to have been then wiped out-Vide Exs. C, C5, C6 and 08. But the distribution of the debts in January 1902 was a partition of debts due by strangers to the family and not of debts due by the members of the family inter se. I hold that the decision of the Subordinate Judge was correct.
18. As regards items Nos. 201, 202, 247 and 248, I think the decision of the Subordinate Judge was right and consider it unnecessary to re-state the reasons given by him.
19. As regards items Nos. 1 and 10 of Plaint Schedule II Part II:
The only question is whether the houses alone or their compounds also are excluded from the defendant's share. We cannot refer to Ex. H. There is nothing, therefore, to exclude the plaintiff's claim to the suit and to confine it to the building as contended by the appellants on the strength of Ex. A. The plaintiff's right to a half share in items Nos. 38 to 80 of Plaint Schedule II Part II is admitted in para. 11 of the written statement. As regards items Nos. 34 to 37 they also admit the plaintiff's right to a quarter share, the other quarter share claimed by the plaintiff and not admitted in paragraph 10 of the written statement cannot be allowed.
20. The last items are Nos. 3 to 40 in List I of the debts; jewels not brought into hotchpot by the plaintiff. Ex. I contains only 29 items. The 1st defendant's evidence is uncorroborated. I accept the finding of the Subordinate Judge for the reasons he gives.
21. The 2nd plaintiff has filed a memorandum of objections. As stated by the Subordinate Judge the existence of the paddy, item No. 197 of Plaint Schedule II Part I on the 5th September 1901 is not proved. It is now admitted that none of the utensils were found in house No. 63 marked S.A. The memorandum of objections is dismissed with costs.
22. The decree of the lower Court will be modified as to the value of the law books item No. 124 and with reference to items Nos. 34 to 37 of Plaint Schedule No. 11 (II).
23. In other respects the appeal is dismissed. The appellants will pay the 1st respondent's costs.