1. This is a suit on a pro-note. The 3rd defendant denied liability on a plea that he was divided from the family. The Small Cause Judge accepted this plea on the evidence of Ex. I. There is oral evidence to the same effect which he has not discussed. The sole question raised by petitioner (plaintiff) is whether Ex. I is acceptable in evidence inasmuch as it is a deed of partition affecting immovable property and not registered.
2. Counter-petitioner raises the usual argument that Ex, I is a mere memorandum. He cites various rulings, but this is a pure question of fact to be decided on a perusal of the actual document. Spencer, J., has made the same observation in Ayyakutti Mankondan v. Periasami Koundan : AIR1914Mad121(2) . Exhibit I is described as a list of partition resultant upon the award passed by panchayatdars. It contains the share given to 3rd defendant, mentions three items out of that share made over to Kannusami, is signed by Kannusami and 3rd defendant, and is attested by four witnesses. It is in my opinion, too formal a document to be described as a mere memorandum. It is a deed of partition declaring an interest in the immovable property mentioned therein; and as such being unregistered, under Section 49 of the Indian Registration Act, it cannot be received in evidence of any transaction affecting such property, However, the counter-petitioner argues that it can nevertheless be received in evidence to prove division of status relying upon Saraswatamrna v. Paddayya A.I.R. 1923 Mad. 297.
3. In that case the document in question was a deed of partition which was unregistered. The question arose whether a document which operates to convert a change in the status of the family and effects a division of right was admissible in evidence if unregistered. Ayyakutti Mankondan v. Periasami Koundan : AIR1914Mad121(2) and Pothi Naicken v. Nagama Naicker : (1916)30MLJ62 were admitted authority to the contrary. Venkatasubba Rao, J., holds that a document merely creating a separation in status does not itself create any interest in immovable property and a deed of partition referring to immovable property and not registered may be looked at for ascertaining if it contains evidence of an intention to divide. It is admissible as proving the conduct of the parties. Spencer, J., holds that such a document is admissible to prove division of status. He considers that the document if duly registered and used to prove the actual partition would be one affecting immovable property, but if unregistered and used only to prove division of status it would be one J not affecting immovable property. This view runs counter to that of Sadasiva Iyer, J. in Ayyakutti Mankondan v. Periasami Koundan : AIR1914Mad121(2) .
4. In my opinion, if the document is filed 1 on the strict understanding that it must not evidence any transaction affecting immovable property, its scope in the majority of cases will be very small. At most I think it will evidence, as observed by Venkatasubba Rao., J., an intention to divide. For instance, the document now in question is inadmissible from the words 'the entire western portion' to the end. All that is, admissible is the heading 'list of partition as a result of award passed by panchayatdars on 12th August 1918 in favour of Mayileri Udayan, son of etc.' From this no doubt it may be inferred that there was an intention to divide at this date. For evidence of actual division the rest of the document would be necessary-but that portion evidences a transaction affecting immovable property and being unregistered is inadmissible. Therefore, the Small Cause Judge is wrong when he writes 'it is seen from Ex. I that the defendants Nos. 2 and 3 are divided,' for that is more than Ex. I can prove, He could have found that Ex. I evidenced an intention to divide, and actual division was proved by defence witnesses Nos. 2 and 3. I do not think, however, that anything will be gained by sending this case back for a finding on the oral evidence after a lapse of twenty-four months and I decline to interfere. The petition is dismissed. No costs.