1. This appeal arises out of a suit instituted by the respondent in the Court of the District Munsif of Bhimavaram to recover from the brothers of her deceased husband properties which she alleged had fallen to his share on partition. The proper. ties in suit admittedly had formed part of the estate of the joint family which consisted of the deceased, his brothers Ramayya and Appanna (appellants 1 and 2) and Appa Rao (appellant 3), who is the son of appellant 2. The plaintiff's case was that the partition was effected on 1st March 1934. Her husband obtained possession of the properties which were allotted to him and remained in possession until his death on 11th August 1938. After his death his brothers trespassed on the land and dispossessed her. The defendants denied that there had been a partition, but it transpired in the course of the case that partition had taken place and in this connexion a document had been drawn up and signed by the parties. The document was not produced. On the evidence led before him, the District Munsif held that it merely comprised lists of the properties which had been allotted to the respective coparceners. He also accepted the plaintiff's case in other respects and consequently decreed the suit. On appeal the Subordinate Judge held that the document did constitute a deed of partition which required registration, but that the plaintiff was in law entitled to prove a partition by other evidence, which she had done. Consequently he concurred in the decree passed by the District Munsif. The defendants have appealed. The appeal raises the question whether the Subordinate Judge was right in holding that the partition could be proved by evidence apart from the deed and the case has been placed before a Full Bench as the decisions of this Court relating to this question reveal a conflict.
2. In Ramu Chetti v. Panchamal : AIR1926Mad402 Kumaraswami Sastri J., sitting with Venkatasubba Rao J., 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 the specific items of property. He quoted the decision of the Privy Council in Rajangam Iyer v. Rajangam Iyer A.I.R. 1922 P.C. 266 : 46 Mad. 373 as an authority for the proposition that an unregistered partition deed can be put in evidence for the purpose of proving a division of status. The judgment of their Lordships did not say this, but in Subbarao v. Mahalakshmamma A.I.R. 1930 Mad. 883 a Bench of this Court held that regard can be had to the terms of an unregistered deed of partition when it is merely a question of deciding whether there has been a division of status, and the correctness of that decision has not been questioned.
3. In Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44 the Judicial Committee held that unregistered documents could be examined with a view to ascertaining the nature of the possession. The question there was whether there had been a valid gift of immovable properties and whether the donee had acquired a title by adverse possession. The documents were certain petitions which had been presented to the Collector, who was asked to register the properties in the name of the donee. Their Lordships said that as a gift of immovable property is required to be made by a registered deed the petitions could not be used as evidence of title, but it was permissible for the Court to look at them in order to ascertain the nature and character of the possession held by the person named in the petitions. In delivering the judgment of the Board Viscount Cave observed:
In other words, although the petitions and order do not amount to a gift of the land, they lead to the inference that the subsequent receipt of the rents by Duraisani was a receipt in the character of donee and owner of the land, and therefore in her own right and not as trustee or manager for her mother and aunt.
The decision in effect was that, as the property had come to her in the circumstances indicated and as she had held it for 12 years, she had obtained title by adverse possession.
4. There is nothing in the judgment in Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44 to support the proposition that an agreement which cannot be proved by reason of the fact that it has not been registered can be proved by other evidence. All that it amounts to is that an unregistered document can be examined to see under what circumstances a person came into possession. This is quite a different matter, and lends no support for the opinion of Kumaraswami Sastri J. The learned advocate for the respondent also relies on the judgment of Ramesam J. in Abobilachariar v. Thulasi Animal : AIR1927Mad830 . It would appear that Ramesam J. did regard the remarks of Kumaraswami Sastri J. with favour, but it is not quite clear whether he intended to go quite so far. An opinion emphatically opposed to that expressed by Kumaraswami Sastri J. in Ramu Chetti v. Panchamal : AIR1926Mad402 as expressed by Patanjali Sastri J. in Veeraraghava Rao v. Gopalarao A.I.R. 1942 Mad. 125 where the facts were almost identical with the facts of the present case. There Patanjali Sastri J. held that where a deed of partition is inadmissible by reason of the fact that it has not been registered, a co-sharer who happened to be in sole enjoyment of a particular property could not sue to eject another co-sharer who had disturbed his possession when he based his title on the partition deed. He could only bring a suit for partition of all the properties owned in common or for joint possession with his co-owners. The judgment of Patanjali Sastri J. was approved of in an appeal filed under Clause 15, Letters Patent. I was a member of the Bench which heard that appeal.
5. The question has been fully argued in the present ease and we see no reason to doubt the correctness of the opinion expressed by Patanjali Sastri J. in Veeraraghava Rao v. Gopalarao A.I.R. 1942 Mad. 125 If the judgment of Kumaraswami Sastri J. were to be accepted, it would mean the overriding of the very emphatic provisions of Section 17, Registration Act, and Section 91, Evidence Act, which is not to be contemplated. As we have already indicated, there is nothing in the judgment of the Privy Council in Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44 which in any way supports the case for the respondent. If it were a question of proving an oral agreement entered into after that embodied in the unregistered document evidence of subsequent conduct could, of course, be led in proof of the subsequent oral agreement, but not with regard to the earlier one. In the present case a division by metes and bounds took place before the execution of the partition deed. As the property in suit admittedly had belonged to the joint family, the change in its character must be proved. As the agreement for partition cannot be proved, the Court can only regard the property as still belonging to the joint family. Moreover, as Patanjali Sastri J. pointed out, one co-owner cannot maintain a suit for trespass against another co-owner. For the reasons given, the appeal must be allowed with costs throughout.