A. Varadarajan, J.
1. The defendants 1 and 2 who tailed in both the Courts below, are the appellants. The first defendant is the mother of the second defendant. The respondent and the first defendant's husband Anthonymuthu Pillai are brothers. They are the sons of one Savarimuthu Pillai, who died on 5th March, 1942.
2. The respondent filed the suit for declaration of his title to the suit property, which is the eastern half of S.No. 272/3 of Thottanuthu Village, Dindigul Taluk, and for recovery of possession thereof with future mesne profits. His case was that the suit property and other properties were the joint family properties of himself and Anthonymuthu and they got those properties partitioned under the unregistered document, Exhibit A-2, dated 23rd April, 1964 and he got the suit property for his share in that partition and has since then been in enjoyment of the suit property and has acquired title by prescription. He alleged that the appellants interfered with his possession and entered into possession of the property taking advantage of the order (Exhibit A-8), dated 18th December, 1961 in M.C. No. 552 of 1961 on the file of the Sub-Divisional Magistrate, Dindigul, holding that the appellants were in possession of the suit property. The suit property had been purchased in the name of the first defendant's husband Anthonymuthu under Exhibit A-1, dated 23rd April, 1942.
3. The defence was that the first defendant's husband Anthonymuthu purchased the property under Exhibit A-1, dated 23rd April, 1942 with funds provided by the first defendant's father and that it was not the property of Savarimuthu and that there was no partition between the respondent and Anthonymuthu and that the respondent was not entitled to the declaration and possession.
4. The respondent had filed O.S. No. 388 of 1959 against his mother Periyanayagathammal and her granddaughter Gnana Soundarathammal for possession of certain properties on the ground that those properties had been allotted to his share in the unrepistered partition deed, Exhibit A-2 which was Exhibit A-16 in that case. The present suit property was not involved in that suit, in which it has been held by this Court in S.A. No. 352 of 1963 that the partition deed is inadmissible in evidence for want of registration and that the property should therefore be held to have not been divided and that the respondent could not have acquired title to the property by prescription. During the pendency of that second appeal, the respondent filed O.S. No 88 of 1962 in the trial Court in respect of the suit property against the appellants and it was transferred to the District Munsif's Court, Palani, as O.S. No 468 of 1963, but he withdrew that suit with liberty to file a fresh suit on the same cause of action.
5. The trial Court found in the present suit that the first defendant's father had not provided the funds for the purchase of the suit property in the name of the first defendant's husband Anthonymuthu under Exhibit A-1 and that it is more probable that the first defendant's husband himself, while in the management of the properties of his father after his father's death in 1942, had purchased the property under Exhibit A-1 with the funds of the family He further found that Exhibit A-2 was inadmissible in evidence for proving the partition for want of registration. But, however, he accepted the oral evidence of P.Ws. 1 to 3 regarding the partition and found that the partition alleged by the respondent was true and held that he was in separate possession and enjoyment of the suit property since then and has acquired title to the suit property by adverse possession. On those findings he decreed the suit for declaration and possession and mesne profits, though as already stated, only future mesne profits to be determined in separate proceedings under Order 20, Rule 12 of the Code of Civil Procedure had been prayed for in the plaint.
6. The lower appellate Court did not consider the question of acquisition of title to the suit property by prescription. But in other respects it confirmed the trial Court's decree and dismissed the appeal.
7. Now both the Courts below have found that the first defendant's father had not provided the funds for the acquisition of the suit property under the sale deed Exhibit A-1, dated 23rd April, 1942 in the name of the first defendant's husband Anthonymuthu and that it is probable that the property had been purchased by Anthonymuthu while he was in management of the properties belonging to the family after the death of his father on 5th March, 1942. There is, no reason to interfere with this concurrent finding of the Courts below on a question of fact.
8. The next question for consideration is whether the Courts below are right in holding, on the oral evidence of P.Ws. 1 to 3 that there had been a partition between the respondent and Anthonymuthu and the respondent got the suit property for his share in that partition, while at the same time holding that the unregistered partition deed (Exhibit A-2) is inadmissible in evidence for want of registration. As already stated, Exhibit A-2 which was Exhibit A-16 in O.S. No. 388 of 1959 on the file of the District Munsif's Court Dindigul had been held to be inadmissible in evidence for want of registration and Alagiriswami, J., has held in the second appeal that the partition could not be proved by oral evidence. The appellants were, however, not parties to that suit which related to certain other properties and not the suit property.
9. The learned Counsel for the appellants invited my attention to the decision of a Full Bench of this Court in Ramavva v. Achamma (1944) 2 M.L.J. 164 : I.L.R. (1945) Mad. 160 : 57 L.W.472 : A.I.R. 1944 Mad. 550 . and submitted that the partition deed,. Exhibit A-2, being inadmissible in evidence for want of registration, it is not open to the respondent to seek to prove the alleged partition by oral evidence, with the result the brothers must be held to be undivided and the respondent could not be stated to have acquired title to the suit property by prescription. There the learned Judges referred to the decision of Patanjali Sastri, J. in Veeraraghava Rao v. Gopala Rao (1947) 2 M.L.J. 707 : 54 L.W. 499 : A.I.R. 1942 Mad. 125. and observed:
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 .... We see no reason to doubt the correctness of the opinion expressed by Patanjali Sastri J., in Veeraraghavarao v. Gopala Rao Rao (1947) 2 M.L.J. 707 : 54 L.W. 499 : A.I.R. 1942 Mad. 125. As. we have already indicated, there is. nothing in the judgment of the Privy Council in Varada Pillai v. Jeevaratnammal (1920) 38 M.L.J. 313 : 53 Ind.Cas. 901 : 46 I.A. 255 : I.L.R. Mad. 244 : 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 the 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.
This decision of the Full Bench of this, Court entirely supports the submission of the learned Counsel for the appellants that Exhibit A-2 being inadmissible in evidence for want of registration, it is not open to the respondent to adduce oral evidence to show that at the time of Exhibit A-2 itself there had been a partition between himself and his brother Anthonymuthu and that in that partition he got the suit property for his share and he is in exclusive possession of the same since then.
10. But the learned Counsel for the respondent brings to my notice a decision of a Full Bench of the Andhra Pradesh High Court in K. Kanna Reddy v. K. Venkata Reddy : AIR1965AP274 (F.B.) where reference was made to the said Full Bench decision of this Court an Ramayya v. Achamma (1944) 2 M.L.J. 164 : I.L.R. (1945) Mad. 160 : 57 L.W. 472 : A.I.R. 1944 Mad. 550 The Full Bench decision of our High Court is binding on me, and in my opinion even the Full Bench decision of the Andhra Pradesh High Court relied upon by the learned Counsel for the respondent does not help the respondent, for even there it has been observed in paragraph 10 of the judgment thus:
The question now is whether in view of the unregistered document of partition of May, 1958, the defendant can be permitted to prove the factum of a prior partition by oral and other documentary evidence. The Court below has held in favour of the defendant on this point. The learned Counsel for the plaintiff-appellant earnestly challenges the correctness of that view. According to him, the existence of an unregistered partition deed precludes proof of a prior partition between the parties. His argument is that Section 49 (c) of the Registration Act put the unregistered document out of Court. He contends that Section 91 of the Evidence Act cannot help the defendant because the fact of partition itself is a term of the unregistered partition deed. According to him, the position in the eye of few is that the properties continue to remain joint and a partition suit is therefore maintainable. For this proposition, he relies mainly on a Full Bench decision of the Madras High Court in Ramayya v. Achamma (1944) 2 M.L.J. 164 : I.L.R. (1945) Mad. 160 : 57 L.W. 472 : A.I.R. 1944 Mad. 550
But this decision does not appear to govern a case like the present. There the plaintiff claimed title to certain specified items of land on the strength of the title obtained by her deceased husband under a partition document. But the document of partition was unregistered. Therefore her right or title could not be founded on it. What is more the allotment of the particular items of land was one of the terms of the unregistered partition deed. Therefore Section 91 of the Evidence Act stood in her way in proving by any independent evidence that the specified items of properties had been allotted to her husband in a family partition. It was in those circumstances that the Full Bench held that the plaintiff was not entitled to a decree in ejectment of the trespassers who were the other members of the erstwhile joint family. In the instant case, no attempt is made by the defendant to show that any specified item of immovable property was allotted to him in a partition between him and the plaintiff, If he had made such a claim, the circumstance of the partition document being unregistered would have been an insuperable hindrance in his way.
In the present case also the respondent claims title to a certain specified item of the property on the strength of the title alleged to have been obtained by him under the partition deed (Exhibit A-2) which is unregistered and inadmissible in evidence. The Full Bench of the Andhra Pradesh High Court has held that it is not Open to a plaintiff placed in such circumstances to claim any particular item of property on the basis of a partition deed which is unregistered. Therefore, I agree with the learned Counsel for the 'appellants and hold that Exhibit A-2 being unregistered is inadmissible in evidence and that it is not open to the respondent to prove that there was a partition at that time and not on any subsequent date by the oral evidence of P.Ws. 1 to 3. It would follow that the property was the joint property of the respondent and the first defendant's husband Anthonymuthu and that the only remedy of the respondent is to sue for partition.
11. Now the learned Counsel for the respondent submits that since no ouster of the appellants has been pleaded by the respondent, an opportunity may be given to the respondent to put forward a case of ouster and that the matter may be remanded to the trial Court. Since there is admittedly no plea of ouster, it is not possible to accede to this request.
12. The second appeal is, therefore, allowed with costs throughout. It is open to the respondent to file a fresh suit for partition. No leave.