1. This is a suit for a declaration that certain lands in Schedules A and B belong to plaintiff and for an injunction against the defendant's enjoyment of the same. Over 20 years before suit, plaintiff's younger brother, Guruswamy Nadan, died leaving a widow and a daughter, defendants Nos. 1 and 2. The A and C schedule properties belonged to the family of plaintiff and his brother and the B schedule properties (except item 5) were brought to sale under a decree and bought by one Israel Nadan who conveyed to his brother in 1883 under Ex. B. The plaintiff and his cousins were undoubtedly divided but plaintiff alleges that the properties in question are his by right of survivorship as his deceased brother and himself were never divided. 0 schedule properties are admittedly in the possession of defendant No. 1. This the plaintiff accounts for by saying that it was in pursuance of an arrangement for the maintenance of 1st defendant. Both Courts have found that the plaintiff's case is false and that the brothers were divided. Mr. Sesha Iyengar for the plaintiff-appellant in second appeal takes three points.
(i) That Ex. XXI is the primary and only possible evidence of partition and being unregistered it is inadmissible under Section 91 of the Evidence Act, no other evidence of partition is admissible and there is, therefore, no legal evidence upon which the Courts below could have come to a finding that plaintiff and his brother were divided.
(ii) Exs. XVIII and III are inadmissible.
(iii) Ex. J has been attested by plaintiff and a divided cousin but that is no evidence of knowledge of its contents.
2. To take these points in order-Ex. XXI is a cadjan document much torn and largely indecipherable. It is undoubtedly a list of properties. The question is ' Is it anything more.' It is headed Nayinar.shares.' He is D.W. 5 It is signed by the plaintiff, his divided brother and his two cousins. The document is dated 1880. The facts of its containing Nayinar's name and its being signed and attested are said by Mr. Sesha Iyengar to show that it is a formal partition deed. The circumstances under which these lists came to be drawn up are detailed by D.W. 5 himself. The lands were divided by ridges and the chits prepared. Four lists were drawn up and a boy took the chits and placed them on the lines. A person, apparently unconnected with the family, called Aiyaperumal wrote the chits and left spaces for names and attestations. This man also wrote in the names as the chits were taken up. The witness adds: We had no idea of writing a partition-deed. The chits were regarded as the partition. Ex. XXI is a mere list of properties and there are no operative words of division at all. It may be a division of properties subsequent to an oral division of status. That such a written deed can be treated as minutes of agreement and not as a completed partition, and that though unregistered it can be admitted in evidence is clear from Gundapanmi Gopayya v. Gundapaneni Krishnayya 69 Ind. Cas. 562 : 16 L.W. 784 : (1922) M.W.N. 833 : A.I.R. (1923) MAD 160. Of course, if Ex. XXI is the partition, it will be inadmissible. In Ayya Kutti Mankondan v. Peria-sami Koundan 31 Ind. Cas. 615 : 30 M.L.J. 404 : 2 L.W. 1184. the deed, after detailing the distribution of property among the sharers, concluded: In the presence of the witnesses named hereunder we divided. This we take to mean 'divided by this instrument.' The Full Bench held that this required registration but merely directed it and the evidence relating thereto to be expunged from the record. As laid down by the Privy Council in Grija Bai v. Sadashiv Dhundiraj 37 Ind. Cas. 321, 43 C. 1031 at. P. 1047 : 20 C.W.N. 1085 : 14 A.L.J.822 : 20 M.L.T. 78 : 12 N.L.R. 113 : (1916) 2 M.W.N. 65 : 18 Bom. L.R. 621 : U.L.T. 114 : 24 C.L.J. 207 : 31 M.L.J. 455 : 43 I.A. 151 (P.C.), 'severance' of status is quite distinct from the de facto division into specific shares of the property hitherto held jointly, and a deed of partition, though inadmissible to issue partition for want of registration, is still admissible to prove an intention among all members to become divided in status of Sarasvathamma v. Pad-dayya 71 Ind. Cas. 274 : 46 M. 349 : 44 M.L.J. 45. 18 L.W. 418 : A.I.R. (1923) M 297. and in Chotalal Aditram v. Maha-Itore 40 Ind. Cas. 83 : 41 B. 466 : 19 Bom. L.R. 322. it was held that the fact of partition may be proved by oral evidence though the partition-deed may be inadmissible. The terms of Section 91 of the Evidence Act are not transgressed by this course of action as all the Courts had been concerned with was to find out whether particular properties claimed by the plaintiff to be joint family properties were at the date of suit joint or separate, that is precisely the case here. In our opinion the question under Section 91 of the Evidence Act does not really arise as we hold, confirming the view of the Munsif (the lower Appellate Court does not base its decision on Ex. XXI) that Ex, XXI can only be regarded as a list of properties handed to each sharer by an independent person either by lot or in order of seniority and that as it contains no words from which we can construe that it was intended to effect a partition of status; we come to the conclusion that it was a de facto division into specific shares following a prior division of status. No question of its inadmissibility accordingly arises.
3. The next point is the objection to Ex. XVIII.
4. Exhibit XVIII is another deed for Rs. 152 of 100 Palmyra trees by Guruswami Nadar on 10th February 1884. It is witnessed by plaintiff and son and one of the cousins. It is said this ought to be registered under Section 17 of the Registration Act either of 1871 or 1908 as creating an interest in immoveable property of the value of Rs. 100. Reliance for appellants is placed on Sukry Kurdeppa v. Goondakull Nagi Reddi 6 M.H.C.R. 71 where a lease of palm and date trees for 5 years was held to require registration. Holloway, A.C. J' observed that a document with respect to trees may or may not require registration according to the character of the transaction. This may contemplate the trees in a state of attachment to or detachment from the soil and the interest passed will be respectively moveable or immoveable. The case was decided under the terms of the Registration Act, 1864, Section 13. There was in that Act no definition of immoveable property exempting standing timber, growing crops or grass as is the case in the Acts of 1871, Section 3 and 1908 Section 2 (6). In Seeni Chettiar v. Santhanatham Ghettiar 20 M. 58 : 6 M.L.J. 281 : 7 Ind. Dec. (N.S.) 1 (F.B.) it was held to be more than a sale of standing timber as it was contemplated that the purchaser should derive a benefit from the further growth of the thing sold from further vegetation and from the nutriment to be afforded by the land.' Vaughan Williams, J., in Marshall V. Green (1876) 1 C.P.D. 35 : 45 L.J.C.P. 153 : 33 L.T. 404 : 24 W.R. 175. As pointed in Natesa v. Thangavelu 23 Ind. Cas. 102 : 38 M. 883 : 15 M.L.T. 237 : (1914) M.W.N. 327 which concerned a lease for two years of Palmyra trees there was in the case in Seeni Ghettiar v. Santhanatham Ghettiar 20 M. 58 : 6 M.L.J. 281 : 7 Ind. Dec. (N.S.) 1 (F.B.) a limitation on the transferor's enjoyment of the land as such, there was none in that case Natesa v. Thangavelu 23 Ind. Cas. 102 : 38 M. 883 : 15 M.L.T. 237 : (1914) M.W.N. 327. and there is none, as far as we are able to see, here. In the latter Madras case both the case in Sukry Kurdeppa v. Goondahull Nagi Beddi 6 M.H.C.R. 71; and Seeni Ghettiar v. Santhanatham Ghettiar 20 M. 58 : 6 M.L.J. 281 : 7 Ind. Dec. (N.S.) 1 (F.B.) are distinguished and, in our opinion, Ex. XVIII falls distinctly under the law as laid down in Natesa v. Thangavelu 23 Ind. Cas. 102 : 38 M. 883 : 15 M.L.T. 237 : (1914) M.W.N. 327. and that the latter ought to be followed. It follows that this objection fails.
5. As to Ex. III.-This is a similar Othi deed of the same day the same reasoning applies. It is executed by Nainar Nadar, one of the divided cousins, and attested by the plaintiff and his cousins. It is objected that as Ex. Ill contains a recital between third parties it is not admissible to prove title. But in our opinion there is no ground for this objection as the question really is whether the brothers were divided and whether the attesting brother must be taken to know the contents of the document.
6. As to Ex. J-This is an Othi deed executed on 10th July 1891 by Gurusami Nadan of land ' remaining under my enjoyment as ancestral property ' and is witnessed by plaintiff and D.W. 5 (a divided cousin). This is utilised to prove an individual dealing with land which had formally formed part of the family property. It will be observed that Exs. XVIII, III (and it is said also Ex. C) in the case tare Othi deeds of even date each mortgaging trees on the shares of three out of four of the sharers. In so far as the deeds are attested by the other sharers, it appears to us that this shows that they assented to the alienations and acknowledged that they have no interest in the subject matter of the document each attests; though they before partition would have had an interest in such subject matter. This appears to us to be a statement against interest in the case of each such attestor, and to be, therefore, admissible under Section 32 of the Evidence Act. It is clear we think that the attestors, in the circumstances of the case, must have known the contents of these documents. They were all made on the same day and each of the divided attestors was, certainly as to three and most probably as to all, the executant of a similar document himself. It is suggested that they executed these deeds for the purpose of liquidating each of his share of the family debt it may be so. The plaintiff's evidence was entirely discredited in both the lower Courts and, in our opinion, the evidence objected to was rightly admitted. His evidence as to the properties acquired under Ex. B also discredited. The matter is then resolved into a simple question of fact on the evidence and the defendant's version has been accepted.
7. There is a patent mistake in the decree of the Lower Appellate Court. The appeal was dismissed with costs except as regards item 5 as to which there was no order as to costs. The decree, however, directs that each party shall bear his own costs. We must, therefore, dismiss the appeal with costs both here and in the lower Appellate Court. Memorandum of objections is allowed, but there will be no order as to costs.