1. The minor defendant in this case with his mother as guardian, and his two uncles, one of whom is Narasimhamurthi, P.W. No. 3 effected a partition of their movable property in October 1930. As one of the terms of that partition, and in order to equalise the shares of the three members of the family, it: was arranged that P.W. No. 3 should pay off all the family debts and that the other two should execute promissory notes, in his favour for Rs. 1,500 and Rs. 700, respectively. Accordingly defendant's mother executed the suit promissory note in favour of P.W. No. 3 for Rs. 700 on the same day. This note was transferred by P.W. No. 3 to the plaintiff, who has now sued the defendant upon it.
2. The main defence was that the minor defendant is not liable upon the pro note. In order to meet that defence, it was necessary for plaintiff to prove that the, promissory note was executed for necessity. To prove this, he called P.W. No. 3 who spoke to the terms of the partition. In cross examination he admitted that there were unregistered partition lists in existence The lower Court held that these lists were inadmissible in evidence and consequently that there was no valid partition, and no valid debt binding upon the defendant. Against the decision plaintiff has filed the present Civil Revision Petition.
3. I am unable to agree with the language in which the lower Court has formulated its decision. It is well-settled that there can be a valid partition without any document at all see Ram Gopal v. Tulsi Ram : AIR1928All641 . But the real question is whether plaintiff is debarred from proving the terms of this partition once the existence of the unregistered partition lists is established. If he cannot prove those terms, he cannot prove the necessity for the defendant's guardian to execute the pro-note and he must fail. Not without reluctance I have come to the conclusion that the lower Court's decision is right.
4. I have had a translation of one of the partition lists before me and it is obvious from it, indeed it was not seriously challenged by petitioner's learned Advocate that it is a document which requires registration under Section 17 of the Registration Act. Under Section 49 it cannot be received in evidence unless it satisfies one of the conditions of the proviso. This is not a case in which plaintiff can take advantage of Section 53-A of the Transfer of Property Act, for that section relates only to the retention of immovable property of which P.W. No. 3 or plaintiff might be in possession. Nor do I see had the promise to pay Rs. 700 can be called a 'collateral transaction.' It is obviously one of the terms of the partition itself, and Samuvier v. Ramasubbier 55 M. 72 : 132 Ind. Cas. 305 : 60 M.L.J. 527 : 30 1 W. 576 : Ind. Rul. (1931) Mad. 657 : A.I.R. 1931 Mad. 580 and Bhabi Dutt v. Ramalalbyammal A.I.R. 1934 Rang. 303 : 152 Ind. Cas. 431 : 7 R. Rang. 156, are clear authority for the position that though the plaintiff's claim is a claim for money only, it is a part of an agreement which affects immovable property and that agreement must be regarded as 'an indivisible' whole to effect a fair distribution of assets' to quote from Samuvier v. Ramasubbier 55 M. 72 : 132 Ind. Cas. 305 : 60 M.L.J. 527 : 30 1 W. 576 : Ind. Rul. (1931) Mad. 657 : A.I.R. 1931 Mad. 580. Plaintiff cannot be permitted to tender his unregistered document in evidence.
5. Plaintiff being thus unable to tender the partition list in evidence, is next confronted with Section 91 of the Evidence Act which lays it down in unmistakable language that he cannot also tender any oral evidence of the terms of the partition. The result is that he can give no evidence at all of those terms, and cannot prove any necessity for the execution by defendant's guardian of the pro-note. This Civil Revision Petition must accordingly be dismissed with costs.