V. Sethuraman, J.
1. This is an appeal filed by the plaintiff in O.S. No. 107 of 1969 on the file of the Court of the Subordinate Judge of Chidambaram. There was one Rengasami Vandayar, who died in or about 1940. His four sons are Booraswami, the plaintiff, Rajakannu, the first defendant, Chinnadurai, the second defendant and Dharmalinga, the third defendant. He owned certain properties. According to the plaintiff the four sons of Rengasami Vandayar were living as members of a Hindu undivided family till about 1964. In that year there was a division of the movables and the respective brothers started separate messes. The parties were, it is said, put in possession of the properties of the joint family for the purpose of convenient enjoyment. The second defendant was alleged to have entered into partition with his sons, defendants 4 to 6, later on under which some of the joint family properties were sought to be divided. According to the plaintiff, some properties had been purchased in the names of defendants 4 to 8 out of joint family funds. The plaintiff, therefore, issued a registered notice to the defendants on 1st September, 1969 to have all the joint family properties divided and allotted by metes and bounds. There was no reply and the plaintiff, therefore, came forward with the present suit for partition and separate possession of his 1/4th share in the suit properties.
2. The third defendant filed a written statement, which was adopted by the first defendant. He admitted that the joint family owned the immovable properties set out in the plaint, and claimed 1/4th share in the said properties. According to the third defendant there were other properties also, which were divisible among the brothers.
3. The second defendant in his written statement denied that the parties were members of a Hindu undivided family. His plea was they had already become divided and were in possession and enjoyment of their respective properties. It was claimed that the properties described in the II schedule to the plaint were not the joint family properties, that they belonged separately to his branch and that the outstandings set out in the third schedule belonged to his branch. According to the second defendant, a son was born to him by name Jayaramachandran and on 23rd August, 1948, there was a registered deed of settlement marked as Exhibit B-l under which the properties were settled on his minor son with reservation of provision for maintenance by the four brothers. He was put in possession of the said property. However on 22nd September, 1960, he executed a release deed in favour of the first defendant in respect of some of the properties in his enjoyment and the first defendant similarly executed a release deed relinquishing his rights in the remaining properties. On 10th January, 1962, three lists were drawn allotting the properties, which remained after excluding the properties allotted to the first defendant, among the three brothers, viz., the plaintiff and defendants 2 and 3 and the parties have been in possession and enjoyment of the respective properties making alienations and exchanges among themselves and Ors. This written statement was adopted by defendants 5 to 8, except the seventh defendant, who filed a separate written statement making his claims with reference to certain of the properties as individual properties.
4. The learned Subordinate Judge framed Several issues, the main one being whether the properties described in schedules I, II and III were joint family properties and whether the partition said to have been effected in 1962 was true. After considering the evidence placed before him, the learned Subordinate Judge held that the properties described in Schedule I were ancestral properties, that some of the properties described in Schedule II had been purchased out of ancestral nucleus and that the partition in 1962 pleaded by the second defendant was true. As this was a case in which there was a division in status even in 1962, the suit for partition, as if there was a joint family in existence, was not proper and, therefore he dismissed the suit. The plaintiff has, filed this appeal.
5. The learned Counsel for the appellant (plaintiff) contended that the partition said to have been effected on 10th January, 1962, was under Exhibit B-12, which was an unstamped and unregistered document, that the said document could not, in law, he received in evidence and that the properties continued to remain joint family properties available for division under the present proceedings. The learned Counsel took us through the pleadings and the evidence and also cited several authorities in support of his submission.
6. We have, therefore, to consider first whether there was a division among the members of the family in 1962 as alleged by the second defendant. In this context, the question of the admissibility of Exhibit B-12 comes up for consideration. Before considering the admissibility of Exhibit B-12, we shall first consider the facts. The second defendant in his written statements has stated in paragraph 2 therein that the parties had all become divided and were in separate possession and enjoyment of their respective properties and were all living separately. This plea appears to be correct. After referring to Exhibit B-l, which was a settlement deed, dated 23rd August, 1948, which had been only registered and which apparently had not been given effect to, the second defendant pointed out that on 22nd September, 1960, there were two release deeds, Exhibit B-2 and Exhibit B-3 one executed by the second defendant as guardian of his minor son in favour of the first defendant and the other executed by the first defendant relinquishing his rights with reference to the properties not covered by Exhibit B-2. Exhibits B-2 and B-3, which were entered into on the same date, thus resulted in the first defendant walking out of the 'family with certain properties. It is nobody's case that there was any division among the other parties on 22nd September, 1960. The second defendant has stated in paragraph 4 of his written statement that three lists were drawn on 10th January, 1962 allotting the properties excluding those covered by Exhibits B-2 and B-3 among the three brothers and the lists were accepted by all the three brothers and that they were put in separate enjoyment of the said properties. This is borne out by the oral evidence also. According to him (the second defendant) the properties described in the second schedule had been purchased out of the individual resources available to his branch. The third defendant supported the case, of the plaintiff. However, it is found that after 1962 the second defendant had sold some of the properties which he got and he purchased others in his name and in the names of his sons. The plaintiff, the second defendant and the third defendant have been paying kist for the respective properties allotted to them separately. Each one of them is enjoying the properties separately without rendering any account to the other as would have been the case if the properties continued to be joint. The plaintiff in his deposition as P.W. 1 has himself admitted that it was true that there was a division of the properties in 1962 in their family and that they have been enjoying the properties in accordance with the same. He stated in his deposition that the plaintiff did not get his 1/4th share actually, obviously meaning that the allotment was unequal. There was a division on 11th August, 1965 between the members of the family of the second defendant under Exhibit B-9. The properties covered by Exhibit B-9 are those that had been allotted to his branch in the division in January, 1962. The third defendant had exchanged certain properties obtained by him in the partition in January, 1962 with some properties from Jayaramachandran, the fourth defendant, the son of the second defendant. Exhibit B-7, which is the said exchange deed confirms and corroborates the partition under Exhibit B-9 between the second defendant and his sons. It is also admitted by the third defendant, who gave evidence as D.W. 2, that the second defendant had sold some properties and purchased others and that he never raised any objection to the same. In Exhibit B-8, which is the document executed between defendants 2 and 3, there is a reference to the earlier division and it is stated that the properties described in schedules A and B in Exhibit B-8 and certain others had been divided and the document had not been registered, and that in the properties described in schedules A and B to Exhibit B-8, the other brothers did not have a share. Thus, there is a consistent conduct in the shape of separate enjoyment and possession of the properties and in the shape of alienations made by defendants 2 and 3, which confirmed and corroborated the partition effected in 1962. Even in the evidence of the plaintiff as P.W. 1, there are admissions to show that certain lists were prepared in January, 1962 and that there was a partition in that year. The actual words used are as follows:
These statements in the evidence of P.W. 1 himself clearly confirm the partition that had been effected in 1962.
7. The learned Counsel for the appellant contended that the admissions as such, would be of no avail, that the partition is founded on a document of 10th January, 1962 and, that the said document being unstamped and unregistered cannot be revived in evidence. If the said document is left out of consideration in accordance with law, then oral evidence also cannot, it is submitted, be given in order to describe the terms of the partition. If the oral evidence is also eschewed, then according to the learned Counsel, the family would continue to be joint so that the present suit would be proper.
8. The real point is whether Exhibit B-12 could be looked into for any purpose. Section 35 of the Stamp Act on which reliance is placed by the learned Counsel for the appellant provides that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Under Clause (a) of the proviso it is enacted that any such instrument (except those specifically mentioned therein) shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of insufficiently stamped instrument on payment of the amount required to make up such duty, together with a penalty as described therein. In the present case the learned Subordinate Judge has pointed out that the stamp duty and penalty had been paid by the second defendant. Therefore, the bar under the main part of Section 35 of the Indian Stamp Act can no longer apply. We have thus to consider the objection to the admissibility of Exhibit B-12 in the light of Section 49 read with Section 17(1)(h) of the Indian Registration Act. Section 49 provides as follows:
49. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
Section 17(1)(b) provides that non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, of the value of one hundred rupees and upwards, to or in immovable property shall be registered. Thus, the bar under Section 49(c) is only to the reception of the relevant document as evidence of any transaction affecting such property, but not for other purposes.
9. The admissibility of the unregistered partition list or document has come up for consideration in a large number of cases. The Privy Council in Varada Pillai and Anr. v. Jeevarathnammal I.L.R. (1920) Mad. 244 : 46 I.A. 285 : 38 M.L.J. 313 : A.I.R. 1919 P.C. 44, had to deal with a case where a mitta belonged to two brothers, Gopalakrishnan and Parthasarathy in equal shares, and on the death of Gopalakrishnan his share vested in his widow, Rajammal. He had a daughter by name Duraisani. Parthasarathy left a will giving his share of mitta absolutely to his wife Alangarammal. In 1895 Rajammal and Alangarammal, who were the then registered owners of the two moieties of the mitta, presented a petition to the Collector whereby after reciting that they had given away the two villages constituting the mittas as stridhanam to Duraisami on 8th October, 1895, had prayed that orders might be passed for transferring the villages in her name. Duraisani presented a petition for mutation in her name in accordance with the gift in her favour on 8th October, 1895. There was, however no document of gift in her favour.... The plaintiffs who were the reversioners on the death of Alangarammal, filed a suit contending that the moiety of Parthasarathy was, in fact, undisposed of on the death of Alangarammal and that in spite of mutation in favour of Duraisani, the properties were not validly transferred in favour of Duraisani. The Judicial Committee of the Privy Council confirmed the High Court's conclusion holding that Duraisani, although she had not acquired any legal title under the gift of 8th October, 1895 or the petition to the Collector dated 10th October, 1895, in fact took possession of the property when it was transferred to her and that she retained such possession until her death in 1911 after which it passed to one Jeevarathnammal as her heir or successor. At page 251, their Lordships stated as follows:
It should be added that, although the petition of 1895 and the change of names made in the register in consequence of those petitions are not admissible to prove a gift, they may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by Duraisani.
10. It is clear from the decision of the Privy Council that the bar against receiving an unregistered document in evidence is not absolute and it could be looked into for certain collateral purposes. A collateral purpose is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. Thus, a collateral transaction would mean a transaction other than the transaction affecting immovable property. As pointed out by Ismail, J., in Kumaraswami Goundar v. Aravagiri Gounder : AIR1974Mad239 , in the case of an express or completed partition there would be three different stages: (i) the stage of effecting a division in status; (ii) the stage of dividing the properties by metes and bounds; and (iii) the stage of each party taking possession of the properties allotted to his share. As far as these three stages were concerned, having regard to the decided cases, each and every one of them could be effected orally without there being a document. Even if there was a written document in respect of the first and third stages, the document does not require registration because neither the division in status nor the actual taking possession of the properties can be said to create, declare, design, limit or extinguish any right, title or interest to or in immovable property. The Supreme Court has pointed out in Mst. Rukhmabai v. Lala Laxminarayan and Ors. : 2SCR253 , as follows:
Doubtless an unregistered document can effect separation in status:
In an earlier case reported in Nanni Bai and Ors. v. Gita Bai : 1SCR479 . The Supreme Court had occasion to consider the question as to whether the division in status could be established by an unregistered document. At page 713, Sinha, J., as then was, observed as follows:
Partition in the Mitakshara sense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title, has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what ordinarily is understood by partition among co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree;, because it is a matter of individual volition. If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family that effects a partition so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy, has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of Section 17(1)(b), the material portion of which has been quoted above. But partition in the former sense of defining the shares only without specific allotments, of property, has no reference to immoveable property. Such a transaction only affects the status of the member or the members who had separated themselves from the rest of the coparcenery. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is, to any, the partition in the latter sense, it does not come within the purview of Section 17(1)(b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport to operate or do any of the things referred to in that section. Hence, in so far as the documents referred to above are evidence of partition only in the former sense, they are not compulsorily registrable under Section 17, and therefore, do not come within the mischief of Section 49 which prohibits the reception into evidence of any document 'affecting immoveable property'. It must, therefore, be held that those documents have rightlybeen received in evidence for that limited purpose.
It is thus clear that the unregistered document could be looked into for the purpose of finding out whether there has been any division in status.
11. This very question has been considered by a Bench of this Court in Kumaraswami Goundar v. Aravagiri Gounder : AIR1974Mad239 , to which we have made reference already. In that case there was a division between two brothers under a document dated 24th November, 1924. But that document had not been registered. A suit was filed by one of the two brothers claiming that the properties had not been partitioned. The other brother, who was the defendant, contended that there was a final partition on 24th November, 1924, that pursuant to that partition the parties had taken possession of the respective items allotted to them and that they were in complete and absolute enjoyment of those properties. He relied also on a series of alienations subsequent to that partition. The question before this Court was whether the said document could be looked into for the purpose of finding out the division in status and the character of the possession. After elaborately examining the earlier cases, the learned Judges held as follows:
Therefore, we hold that Exhibit B-l is admissible for the collateral purpose, namely, to determine the nature and character of the possession and that the other materials on record could also be taken into consideration for the purpose of coming to a decision that the possession of the properties in question by Nallaswami Goundan was referable to a division of the properties between the parties concerned....
To the same effect are two earlier decision of this Court in Subbu Naidu v. Varadarajulu Naidu : (1947)1MLJ90 and Velusami and mother v. Velusami Konar and Ors. : AIR1962Mad153 .
It follows from these decisions that the document could be looked into for the purpose of finding out also the character of the possession of the plaintiff and defendants 2 and 3 of the respective properties.
12. We may add that an identical conclusion has also been reached by a Full Bench of five Judges of the Andhra Pradesh High Court in Chinnapareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy and Ors. (1969) 1 AnW.R. 396. In that case one Venkatareddy filed a suit for partition and for delivery of a half share of the family properties to him. His brother Muthyalareddy resisted the suit contending that they became divided in status 50 years ago, that partition lists were drawn up showing the properties allotted to the respective sharers and that the suit for partition was not maintainable. The lists were construed as partition deeds and as they were unregistered, they were held by the trial Court to be inadmissible in evidence for proving division by metes and bounds. No oral evidence was held to be admissible under Section 91 of the Evidence Act to prove the factum of partition or the nature of possession. There was, therefore, a preliminary decree for partition. There was an appeal to the High Court and the contention was that the unregistered partition deeds could be looked into for the purpose of showing that there was a disruption in status and that no suit for partition would lie on the basis that the properties were still joint family properties. Jaganmohan Reddy, C.J., as he then was, delivering the judgment on behalf of the Full Bench held at page 407 as follows:
In our view where a partition takes place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can however be looked into for the purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family who from thence onwards, hold it as co-tenants. It is now a well-established principle of Hindu law, as held by their Lordships of the Privy Council and the Supreme Court that for a severance in status, all that is required is a communication to the other members of the joint family, of an unequivocal intention to separate.... This communication of intention could be done orally or by a notice in writing, to the other coparceners, or by other means depending upon the facts and circumstances of the case. If the intention is expressed by reducing the same to writing such a document, though unregistered, is admissible and can be looked into, as long as it is not the source of title of any of the properties which each of the erstwhile coparceners hold as a result of that partition.
In the same case the question as to whether oral evidence was inadmissible by reason of Section 91 of the Evidence Act was also gone into and at page 409 it was stated as follows:
The Full Bench of this Court in K. Kanna Neddy's case (1965) 1 AnW.R. 384, also took the view that oral evidence is admissible to provide the factum of partition, though it was not admissible to prove the terms of the partition. It is however unnecessary to consider this question in the view we have taken that the partition deed itself is admissible to prove the severance in status and in view of the severance in status, the suit for partition on the footing that the property is still joint family property is not maintainable, and will have to be dismissed accordingly.
13. In the present case we have already referred to the oral evidence in the shape of the admissions by P.W. 1. learned Counsel for the appellant submitted that the oral evidence should be left out of consideration because of the bar under Section 91 of the Indian Evidence Act. We are unable to accept this submission. Section 91 provides that where the terms of a document have been reduced to writing, no evidence shall be given in proof of the terms of the said document. The oral evidence barred under Section 91 is evidence of the terms. We are looking into the oral evidence here for finding out the division in status and the nature of the possession. We are in agreement with the Full Bench decision in K. Kanna Reddy v. K. Venkata Reddy (1965) 1 AnW.R. 384, in holding that the unregistered document is admissible to prove the factum of partition though not the terms thereof and that oral evidence is also admissible for proving the factum of partition. The admissions in the pleadings have been taken into account in Kumaraswami Gounder v. Aravagiri Gounder and Anr. : AIR1974Mad239 . Similarly the oral evidence which consists of admission in this case can also be looked into for the purpose of finding out the nature of the possession in the hands of the respective parties.
14. learned Counsel laid great store by a decision of a Bench of this Court in Yasodammal and Anr. v. Janaki Ammal : AIR1968Mad294 . In that case there was an unstamped document. A suit was filed by the plaintiffs to establish their title to the suit property against the first defendant, who claimed rights over the same in pursuance of an agreement alleged to have been entered into between the plaintiffs and the first defendant to sell the suit property to the first defendant in April, 1949. That agreement had not been stamped and, therefore, the bar under Section 35 of the Indian Stamp Act was pleaded against the reception of the said agreement as evidence. It was held by this Court that in the case of an unstamped document, as the prohibition contained in Section 35 of the Stamp Act was wide and absolute, even though in the pleadings the contesting party may admit the execution of the unstamped document, still no relief could be granted to the aggrieved party, on the basis of such admission, as it would amount to acting upon the unstamped document. It was, therefore, held that the defendant could not be awarded any relief under Section 53-A of the Transfer of Property Act even assuming that the agreement was in writing and was wrongfully withheld by the plaintiffs. It may be seen that the problem in that case was whether the defendant could put forth an unstamped instrument as an evidence to resist the claim in a suit for declaration. The unstamped instrument could itself confer no title. It could not also be utilised for the purpose of getting any relief under Section 53-A, as the said instrument could not be received in evidence under Section 35 of the Stamp Act. It is in this context that even the admission in the pleadings was held to be of no avail. Any amount of admission in the pleadings, through it may create estoppel, cannot confer title. In the present case the defendant is not trying to obtain any relief in his favour, as was done by relying on Section 53-A in the other case. The evidence of all the Three parties viz., the plaintiff and defendants 2 and 3 is uniform to show that there was a partition and the parties were put in possession of the respective properties. The admission in the deposition is relied on only for the purpose of showing the character of the possession of the respective parties. The bar under Section 91 of Evidence Act and of Section 35 of the Stamp Act has no scope for application in this context.
15. Our attention was drawn to a decision of the Privy Council in Ram Rattan v. Parma Nand (1946) 1 M.L.J. 295 : 73 I.A. 28 : 59 L.W. 196 : A.I.R. 1946 K.C. 51. That was also a case in which an unstamped and unregistered document was relied on as evidence in a suit for partition of the properties. The Privy Council held that Section 35 prohibited the document from being looked at even for any collateral purpose. This is not a case of an unstamped instrument attracting the operation of Section 35, because the document, as already pointed out, has been stamped. In the case before the Privy Council the schedule to the unstamped document was the basis of the declaration that the plaintiff was entitled to a half share in the properties described in the schedule. Regarding this aspect the Privy Council pointed out that in doing so, the document was not actually received as evidence and that the schedules were merely employed as a convenient means of identifying the properties admitted to be joint. It is unnecessary for our purpose to go further into this decision of the Privy Council, as the operation of Section 35 of the Indian Stamp Act is not attracted.
16. The learned Counsel for the appellant relying on a decision of the Full Bench of this Court in Nalam Hamayya and Ors. v. Nalam Achamma I.L.R. (1945) Mad. 160 : (1944) 2 M.L.J. 164 : 57 L.W. 472 : A.I.R. 1944 Mad. 550, submitted that where a deed of partition was inadmissible for want of registration, the Court had to regard the property as still belonging to the joint family. In that case the plaintiff, a widow, sued for recovery of the properties. According to her the properties had fallen to the share of her husband on partition. The properties had admittedly formed part of the joint-family properties of her husband and his brothers. According to her the partition was effected on 1st March, 1934 and her husband had then obtained possession of the properties. After her husband's death, she alleged that the brothers trespassed on the property and dispossessed her and that is how she came forward with a suit for recovery of possession. As the partition deed of 1934 had not been registered, it was held that the document could not be received in evidence. For ejecting the defendants in the said suit, it was necessary for her to prove her title. The want of registration of the deed of partition stood in the way of her succeeding in the suit. There is, no doubt, an observation that if an agreement for partition could not be proved, the Court could only regard the property as still belonging to the joint family, and that one co-owner could not maintain a suit for trespass against another co-owner. It may be noticed incidentally that if the property belonged to a joint family, then there was no question of any co-owner maintaining a suit against another co-owner. A member of a joint family is not a co-owner in the legal sense and could not have sued another member for possession so long as the family continued to be joint. The very concept of a joint family involves the doctrine of unity of possession. The observations do not have the meaning contended for and have not also been understood in any later case as if the properties continued to belong to a joint family when once it was found that the deed of partition was unregistered.
17. Even assuming that the depositions could be looked into, the learned Counsel for the appellant pointed out that the said depositions are generally disregarded in such cases because parties make statements to suit their own interest. In this connection, learned Counsel for the appellant cited a decision of the Privy Council. In Alluri Venkatapathi Raju and Anr. v. Dantuluri Venkatanarasimha Raju and Ors. (1036) 71 M.L.J. 558 : 63 I.A. 397 : A.I.R. 1936 S.C. 264, the Judicial Committee was concerned with a case instituted by two grand-sons through the daughter of one Venkataraghava Raju, who was himself the son of one Krishnamraju. Their claim was that the properties covered by the said suit belonged to their maternal grandfather, as the heir of his father Krishnamraju, and that Krishnamraju had become divided from his brothers. The plaintiffs could have succeeded only if they established that Krishnamraju had become divided from his brothers. If he had continued undivided, then the properties would have gone by survivorship to his brothers. Krishnamraju and his brothers had taken certain abkari licences. Rule 5 of the Rules governing the exclusive privilege of vending toddy prescribed that the holder of the licence should not hold or have any interest in the exclusive privilege of manufacturing and selling arrack in the part of the district to which his licence related. There was a similar prohibition in respect of the holder of a licence for selling arrack. The brothers had made statements before the revenue authorities to the effect that they were divided and that either of them was concerned only with particular business for which the exclusive licence had been obtained and that either of them was not concerned with the licence of the other. The question was whether the admission of the brothers that they were already divided showed that the properties had been obtained by Krishnamraju in a partition between himself and his brothers. It is in this context that the Judicial Committee pointed out that it sometimes happened that persons made statements which served their purpose or proceeded upon ignorance of the true position and that it was not their statements, but their relations with the estate, which should be taken into consideration in determining the issue. It is not clear as to how this case helps the appellants herein. The statements made in that case were not in the course of the very proceedings of the suit. Those statements had been made in the context of certain other enquiries. The statements made in connection with certain other enquiries will not stand in the same position as statements made in the very suit. The admissions in a suit have a greater validity and could under certain circumstances serve as a foundation for a decree even. The admissions made in the present case cannot also be taken as self-serving statements to suit to any particular occasion. In a case where this very question of division is in issue, if all the parties speak from the witness box that they have become divided and that they have been enjoying the properties separately, then we are at a loss to know why the Court should decline to act on them.
18. The learned Counsel drew our attention also to a passage in Mst. Rukhmabai v. Lala Laxminarayan and Ors. : 2SCR253 .
We have already referred to this case in an earlier part of this judgment. That was a suit by one Laxminarayan for a declaration that the trust deed executed by his paternal uncle Govindprasad in favour of his brother Chandulal and cousin Rukhmabai was a sham document. In the proceedings the question arose whether Laxminarayan's uncle Govindprasad had become divided from his brothers. If he had become divided, the trust would have been a valid one, unless it was shown to be a sham document. In the said case also there was unregistered release deed in favour of the said Govindprasad by his brothers. There were also statements made in other proceedings. Some of the statements were conflicting and contradictory. It is in this context that the Supreme Court, after extracting a short passage from the decision of the Judicial Committee in Alluri Venkatapathi Raju v. Dantuluri Vengatanarasimha Raju , pointed out at page 447 as follows:
These contradictory statements were made by one or other members of the family to meet a particular contingency or to get an advantage, and, therefore, these cannot be of much value and the case really falls to be decided not on such statements, but on the basis of the relations of the various parties with the estate.
Taking the relations of the various parties with the estate with which we are now concerned, it is clear that they have been enjoying the properties as divided members. There are no conflicting or contradictory statements which have to be reconciled in the present case. In these circumstances, we do not consider that is anything wrong in acting on the said admissions. The result is that the trial Court was right in dismissing the suit for partition. In fact, a suit for partition as in this case, on the basis of the existence of an undivided family cannot lie, when it is found that the parties have become divided and had been enjoying the properties separately and dealing with them as such.
19. learned Counsel for the appellant submitted that even assuming that the third defendant by dealing with the fourth defendant was in any manner estopped from contending that there was no partition, still such a plea was not open as against the plaintiff. We do not rest our conclusion on any plea of estoppel. We have taken into account the evidence that has been adduced in this case and particularly the statements in the witness box of the plaintiff and the third defendant who has a common case with the plaintiff, and we are satisfied that there was a division in January, 1962, that the respective parties took possession of the properties in their enjoyment subsequently and that they have been dealing with the said properties as if they were individual owners thereof. We make it clear that we are taking into account Exhibit B-12 only for the purpose of finding out the division in status and the character of the possession of the respective parties. There was no further dispute about any other conclusion or finding of the learned Subordinate Judge.
20. The appeal, therefore, fails and it is dismissed with costs. C.M.P. No. 4311 of 1977 for recording the legal representatives of the deceased 2nd respondent is ordered.