1. The defendant is the appellant. The suit was filed to recover possession of a plot of land 52 cents in extent. The plaintiff is the concubine of one Marobiyana Bhavanayakudu to whom this property belonged. He had a son by name Ankalu who died issueless in the year 1930 but left a widow who is the defendant. The plaintiff's case is that after the death of the son Ankalu the property belonged absolutely to Bhavanayakuau and he executed a deed of gift, Ex. P. 1 to the plaintiff on 5-6-1936. It is under this document that the plaintiff claims title to the whole of the property. On the other hand the defendant who is the daughter-in-law raised the contention that prior to the death of her husband in the year 1930, i.e., on 2-8-1929, there was a partition between the father and the son, in which the father got the western moiety and the son the eastern moiety; and so the defendant conceded that the plaintiff was entitled to the western moiety under the gift deed, Ex. P. 1 and claimed the eastern moiety to herself as her husband's share.
In support of the defendant's case, she produced a document which purports to be a partition deed by which the property was divided in 1929 in the manner stated by her. But unfortunately, it was not a registered document, and so, for want of registration, both the lower courts rejected it as inadmissible in evidence. However, the learned District Munsif on other evidence, came to the conclusion that there was a division in status between the father and the son and passed a decree in favour of the plain-tiff for an undivided moiety of this property. On appeal, the learned Subordinate Judge agreed with the learned District Munsif in holding that the unregistered partition deed was inadmissible in evidence for want of registration but held that without the document the partition could not be proved and, therefore, decreed the plaintiff's suit in entirety; and it is against that decree that the defendant has preferred this appeal.
2. It will be seen that the onus of proving the partition set up by the defendant is upon her and if she fails to make out that case then it will follow that the plaintiff will be entitled to succeed in respect of the entire property. The learned counsel for the defendant concedes that the partition deed which he relies on is inadmissible in evidence for want of registration in the sense that the particulars of the partition could not be gathered from such a document; but he contends nevertheless that the document could be looked into for the purpose of substantiating his case that there was a severance in status in the family.
The learned District Munsif has held, relying act the evidence of two attestors and the writer who were examined as D. Ws. 2 to 4, that this document was genuine; and though the learned Subordinate Judge has not considered this question, I have examined the evidence myself and I am inclined to agree with the finding of the learned District Munsif. We must, therefore, proceed on the footing that the partition deed is genuine and both the father, and son executed it in token of the partition. That being so, the only question that has to be decided is whether that document could be looked into as furnishing evidence of a division in status in the family. In -- 'Saraswatamma v. Padayya', AIR 1923 Mad 297 (A), a Bench of this Court held that though such a document may be inadmissible in evidence to prove a partition, still it is admissible as evidence to prove an intention amongst all the members to become divided in status. At p. 299 it is observed :
'For collecting a division in status in addition to conduct or declarations, the intention must be unequivocally and cleanly expressed to the other members of the family. For ascertaining whether a deed amounts to such conduct or contains evidence of it, or contains declarations of intention, I fail to see why it should not be looked at, although it may refer to immovable property and is not registered.'
Again in -- 'Subbarao v. Mahalakshmamma', AIR 1930 Mad 883 (B), another Bench of our Hign Court took the same view. At p. 888, Beasley C. J. observes:
'But even though inadmissible in evidence to prove a partition, I am of the view that it could be used in evidence not for what it contains but as evidence of a division in status.'
At p. 893 Curgenven J. observes: 'I think, acordingly, that, following the current of judicial opinion, there is no question but that we may look into Ex. VIII to decide whether the brothers were joint or several in status.'
The learned counsel for the respondent contends that these two decisions must be deemed to have been disapproved by the Full Bench decision in -- 'Ramayya v. Achamma' : AIR1944Mad550 . In that case this question did not arise lor decision and what was decided was that where a deed of partition is inadmissible in evidence for want of registration, the partition cannot be proved by evidence apart from the deed. No doubt, that Full Bench overuled the decision of Kumara-swami Sastri and Venkatasubba Rao JJ. in --'Ramu Chetty v. Panchammal' : AIR1926Mad402 which held that where a partition had taken place under a deed and the deed could not be proved for want of registration, the fact of partition could be proved by other evidence, namely, the conduct of the parties in their dealings with each other and with regard to specified items of property. I do not find anything in the judgment of the Full Bench to warrant the contention that any dissent of the aforesaid two decisions has been expressed.
On the other hand, at p. 550, His Lordship Leach C. J. refers to the decision in -- 'AIR 1930 Mad 883 (B)' and states that the correctness of that decision has not been questioned. In the latest Full Bench decision in -- 'Murugesa Mudaliar v. Subba Reddiar' : AIR1951Mad12 , the effect of. Section 49(c) of the Registration Act was considered and my Lord, the Chief Justice at pp. 15 and 16 states: 'My view of Section 49(c), Registration Act, is this. It prohibits the use of an unregistered document in any legal proceeding in which such a document is sought to be relied on 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 sought to be relied -on 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.'
In this case the plaintiff (sic: defendant?) seeks to rely upon this document only as proof of division in status and not as evidence of any right, title or interest to or in immovable property. It, therefore, seems to be apparentfrom these decisions that it is open to thedefendant to rely upon this document as affording proof of her case that there was a division in status between the father and the son. Itthat is so, it will follow that the decision ofthe learned Subordinate Judge was erroneousand that the decision of the learned DistrictMunsif was correct. The second appeal is,therefore, allowed and the decree of the learnedSubordinate Judge set aside & the decree of thelearned District Munsif restored with half costsin the lower courts and full costs here.