Kumaraswami Sastri, J.
1. The plaintiff is the appellant. His case is that the first defendant and some others were members of a joint Hindu family, that on the death of the first defendant's husband he became solely entitled to the property, that the first defendant is in wrongful possession of the items mentioned in the plaint. His claim is for a declaration of the plaintiff's right to the items mentioned in schedules A, B, C, of the plaint, for delivery of possession and for injunction and other reliefs.
2. The case of the defendant is that her husband was not a member of the joint family with the plaintiff on the date of his death, but that he was a divided member of the family and he was enjoying certain properties in his own right and on his death she was in possession of them in her own right.
3. The Subordinate Judge has found on the evidence adduced that the defendant's husband was divided in status and that she was in enjoyment of the property and dismissed the suit.
4. The appellant's Vakil frankly admits that he cannot dispute the correctness of the finding but his contention is, having regard to Section 92 of the Evidence Act, the finding is not admissible because there was an unregistered partition deed between the members of the family in 1914. And there being an unregistered deed all the evidence of the conduct of the parties and the rights of the various members is inadmissible. I am unable to agree with him in his contention. So far as the division of status is concerned, a recent decision of the Privy Council in Rajangam Ayyar. v. Rajangam Ayyar 50 I.A. 134 (P.C.) is clear to the effect that a division of status can be proved even though the document has not been registered. It has also been held by their Lordships of the Privy Council that an unregistered document may be used to determine the nature of the possession held by a party. The Subordinate Judge has not relied upon any unregistered partition deed. For the purpose of coming to the conclusion he has arrived at, he takes the conduct of the parties into consideration and comes to the conclusion that not only has the division of status been proved but all the properties claimed have been enjoyed by the defendant's husband in his own right. I do not see why the evidence as regards the conduct of the parties in their dealings with each other and with regard to specific items of property should not, coupled with the finding of a division of status, be used and relied upon to show that certain properties which the plaintiff claims are not in wrongful possession of the defendant but belonged to the defendant's husband. I do not think that on the facts of the case, Section 92 of the Evidence Act is necessary to be invoked by any of the parties. The plaintiff comes into Court and says that he is the absolute owner of the property, because he is a member of an undivided family. The defendant says that her husband was not a member of an undivided family, that he was divided in status, and that he enjoyed certain properties separately, as a divided member of the family. This is not a case when a claim is made by the defendant to any property on the allegation that it came to her by virtue of a deed of partition which is unregistered and so inoperative. The plaintiff's claim as a member of the joint family could not be sustained. I think the decision of the Subordinate Judge on the facts of the case is correct and would dismiss the appeal with costs.
Venkatasubba Rao, J.
5. I agree. According to the plaintiff he and the defendant's husband were undivided. On that footing he claimed possession. The defendant pleaded that there was a division. The lower Court has dismissed the plaintiff's suit. In the course of the trial it appeared that there was a writing evidencing the partition but it was not registered and no attempt was made to file it. The learned Judge has found that there was a partition relying mainly upon circumstances. He has inferred partition from circumstances such as these. The defendant's husband lent monies and realised them in his own name. He dealt with the property as if he was the absolute owner of it. He carried on a separate business and was assessed to income-tax individually. From these and similar circumstances the Judge has inferred a partition. It is now contended for the appellants that under Section 92 of the Evidence Act evidence of partition ought not to have been received. Section 92 has clearly no application. The appellant's learned Vakil probably intends to rely upon Section 91. As the terms of the partition have been reduced to the form of a document, no evidence can be given under that section to prove the terms of that partition except the document itself. This section does not equally apply as the defendant has not attempted to give evidence in proof of the terms of the document. The evidence was directed to prove that the parties lived as members of a divided family. From their conduct the Judge as I have said inferred a partition. It was not necessary to decide what the terms were on which the partition was made, nor does the Judge purport to decide those terms. He merely find's that the parties became divided and I do not think that there is anything in the Evidence Act to prevent him from doing it. He, in effect, says 'the plaintiff says the family was undivided. I find they were divided in interest'. The Judge says nothing more. The plaintiff having come to Court with the case that the family was undivided and his case having been found to be false, his suit was liable to be dismissed. The plaintiff does not ask in his plaint that if there was a division in status, the Court should determine what the properties are to which he is entitled. On the finding the plaintiff's case was untrue it was open to the Judge to dismiss the suit. Section 91 is not in the defendant's way and the decision of the Judge is perfectly correct. I agree that the appeal should be dismissed with costs.