1. The plaintiffs Nos. 1 to 3 and the defendants Nos. 2 to 4, being the descendants of one Naffar Mahomed, were the owners of the jote which is the subject of this suit and other properties. In June 1888, they entered into a written agreement called a solenama, by which the plaintiffs took a two-third share and the defendants a one-third share of the jote. The solenama is not before us, and we are not acquainted with its precise terms, but it is said to have effected a settlement of the disputes relating to all the family properties and to have provided for a partition of them. One provision admittedly was that, in the event of a partition, the defendants should take the whole jote as representing their share of all the properties.
2. The plaintiffs claim a two-third share of the jote alleging a dispossession by the defendants in March or April 1892. The first defendant claims to have purchased the entire jote from the other defendants after the partition contemplated by the solenama had been made. The facts in issue are:
(1) Whether a partition in accordance with the terms of the solenama had been effected;(2) whether after partition the first defendant had purchased the jote from the other defendants. The Lower Appellate Court deciding both those issues in favour of the defendant reversed the first Court's decree and dismissed the suit.
3. It is now contended that the transaction by which the vendee defendants obtained the jote being one of 'exchange' under Section 118 of the Transfer of Property Act, could only be effected by a registered instrument and that there was no valid transfer of the jote to them. Also, that the District Judge in finding a partition has improperly relied upon two documents which were irrelevant and not evidence against the plaintiffs.
4. The solenama, it may be observed, was registered, but there was no subsequent writing giving effect to the partition.
5. The learned pleader for the appellant relies upon the case of Frith v. Osborne (1876) L. R 3 Ch. D 618 as showing that the transaction referred to was in substance an 'exchange' as defined in Section 118. There, an undivided moiety of lands was vested in A, B and G as trustees of a settlement, which expressly authorized a partition, and the other moiety was vested in D, E and F as trustees of a settlement with power to sell or exchange, and a partition deed was executed by the trustees of the two moieties. The question arose as to whether the power of sale and exchange given to D, E and F authorized a partition, and that involved the further question, which was then doubtful, of the power of tenants in common to effect an exchange of their respective moieties of the land held in common before they had made a partition. The Master of the Rolls held that such an exchange could be made, and that the power of exchange was properly exercised by a partition. In deciding a question such as that now raised, we must avoid getting involved in the intricacies of the law of England relating to real property.
6. Assuming that there was what amounted to an 'exchange' within the words of Section 118 between the vendor defendants and the plaintiffs, the undivided interest of the former in all the other properties being exchanged for the undivided interest of the latter in the jote, the Transfer of Property Act does not apply to the transaction. The exchange was intended to and did effect a partition. The completed transaction was the partition by which the parties held in severalty the lands which had been before held in common. The law does not require a partition to be effected by an instrument in writing, and the right of partition being an incident of property held as this property was, the right is not, according to the second Section, affected by any of the provisions of the Act. The Act, moreover, does not profess to deal with partitions or the way in which they are to be effected.
7. Treating, therefore, the transaction as a partition, although it may have been effected in a way which involved, as between the co-owners, a transfer of the ownership of parts of the undivided property amounting to an exchange, I hold that it does not come under Section 118, and that it was not necessary to complete it by a registered instrument.
8. The documents objected to are Exhibits 9 and 43, the former being a petition, and the latter a written statement, put in by the vendor defendants in certain suits, and they contain statements of those defendants that they were in possession of the entire jote. The District Judge says they were objected to before him as containing admissions made by the defendants which could not be proved on their behalf, and that is all we know about them.
9. The vendor defendants, who are charged in the plaint with colluding with the vendee, the first defendant, put in a verified written statement denying the partition and the sale, and one of them, it is said, was examined as a witness for the plaintiff. It is clear that they were supporting the plaintiffs' case, and I think the statements which went to show that there had been a partition and that they had changed their attitude could be proved as against them. The reference to Section 157 is probably a mistake, but I think the Judge was right under the circumstances of the case in holding that the statements were admissible under Section 21 (3) and Section ll (2) of the Evidence Act.
The appeal is dismissed with costs.
Ameer Ali, J.
11. As regards the first point, it must be remembered that the question at issue in the case was whether or not there was a partition between the heirs of one Naffar Mahomed, viz., the plaintiffs and defendants 2 to 4, and whether under or in consequence of that partition, defendants 2 to 4 had acquired an exclusive right to the property in suit. The defendants 2 to 4, from whom the first defendant purchased the jote, denied in their written statement that they had exclusively acquired or were in exclusive possession of the property. They denied also the fact of the sale to the first defendant. It appears that the second defendant was examined on commission on behalf of the plaintiffs. Under the circumstances, therefore, it is clear that the defendants 2 to 4, though placed in the category of defendants, were exactly in the same position as the plaintiffs, and that their interests were more or less identical. The two documents objected to are a petition and a written statement filed in some previous proceeding or proceedings, in which the defendants 2 to 4 admitted the partition, and the exclusive acquisition by them of the jote in suit. These documents were, therefore, clearly admissible against them. But I go further and hold that, having regard to the position of the parties, the statements contained, in these documents are admissible generally in corroboration of the first defendant's allegation. The plaintiffs and defendantS 2 to 4 were co-owners of certain property, and the fact in issue in the present case is, as already stated, whether there was a partition between them, and whether under that partition the defendants 2 to 4 acquired or came to be in possession of a specific property in lieu of their shares in all the properties. Any act done or statement made by any of the co-owners which tends to corroborate the fact of partition would he relevant to the inquiry and consequently admissible in evidence. In Naro Vinayek v. Narhan (1891) I. L.R. 16 Bom. 125 statements such as we find here were held to come under the provisions of Section 11 of the Evidence Act. I am, therefore, of opinion that the petition and written statement, to the admissibility of which objection has been taken in this Court, are facts which by Section 11 are relevant as they make the existence of the partition, which is the fact in issue, highly probable, and that no error has been committed by the District Judge in relying on them.
12. As regards the second point the grounds of decision have been so clearly stated by my learned colleague that I have very little to add. I only wish to observe that English cases are of much assistance in elucidating genera principles and construing enactments when the Acts of the Indian Legislature happen to be in pari materia with English Statutes. But it would be dangerous, I think, to introduce into this country the complicated principles or incidents of the English law relating to real property. The question, however, is whether Section 118 of the Transfer of Property Act is applicable to a transaction of the nature alleged, and found by the Judge to have taken place between the plaintiffs and the defendants 2 to 4. Section 118, in my opinion, is not applicable to cases where some of the co-owners possessing an undivided share in several properties take by arrangement a specific property in lieu of their shares in all. Section 118, as its language shows, refers to cases where two persons owning two specific properties transfer or convey their respective ownership one to the other.
13. In this country a partition between co-owners does not require to be effectuated or evidenced by a written document, and there is nothing in the Act or in the phraseology of Section 118 to warrant the suggestion that the Legislature intended to make any alteration in the recognized law on the subject.
14.For these reasons I agree in dismissing the appeal with costs.