1. This appeal has arisen out of a suit for declaration of the plaintiffs' 3 annas and 3 pies maliki right in the land described in the plaint, and for recovery of joint khas possession in the trial Court the plaintiffs's title to 1&frac1;/2; pies share in the holding was declared. In the lower appellate Court, in addition to the 1 pies share awarded by the trial Court the plaintiffs were declared to be entitled to another 1 anna 2 pies share in the property in suit, as being the share originally held by Moiram Chand Banu, the predecessor of the plaintiffs. This appeal is with regard to 1 anna 2 pies share. The plaintiffs are claiming by purchase from defendants 14 and 15. These defendants purchased the share which they held in a revenue paying estate. The whole question is whether their predecessor had the share which they purported to have sold to the plaintiffs. This again depends upon the question whether Moiram Banu had inherited this share of 1 anna 2 pies. The defendants claim that there was a partition and that Moiram gave up her claim to a share in the property in suit and that she got in exchange some other specified land and that, thereafter she has no share in the land of this estate. The trial Court decided in favour of the defendants that there had been a partition and that Moiram gave up her share in the land in suit in exchange of other specified lands. The learned Judge in the Court of appeal below, on the other hand, held that the partition paper or Saham list or Butwara Chitta was signed by the father of defendants 5 and 6, defendant 8, father of defendant 7, mother of defendants 9 and 10, defendants 9 and 10 and defendant 12, and that that being an unregistered deed of family partition is inadmissible in evidence under Sub-section 17 and 19, Registration Act, and that the document could not be used in evidence against the plaintiffs.
2. For the appellants it has been urged that the Court of appeal below ought to have held that Ex. B was a Butwara Chitta and that it having been duly proved was admissible in evidence to show that there was a partition; and it was further urged that the Court of appeal below ought to have held that the fact of partition could be proved even by oral evidence although Ex. B was inadmissible for want of registration. In fact, on considering the document Ex. B it appears that the learned Judge could not himself decide whether he should describe it as a partition paper or Saham list or Butwara Chitta. It appears to be a list for giving shares to various parties after the partition of the suit lands. It does not appear to be a regular deed of partition. As I have said, it was simply a list for giving shares. It does not mention under what circumstances Moiram had been excluded from the list and that again shows that it was not a regular deed of partition. I am therefore inclined to think that this list did not require registration. But apart from that the other contention of the appellant must prevail. There was ample evidence which was relied on by the trial Court but was not considered by the Court of appeal below which shows that in fact there was a partition between the heirs of Watir, the original holder of the estate. P. W. 2, brother of Watir, is an old man of 77. He says that there was a partition between the said heirs. He also admits that the husband of Moiram Banu was present at the time of the partition. D. W. 2 states that he asked at the time why Moiram's name was left out and that her husband said that she had got some specified lands in her share. There was another circumstance going to show that the whole of the original property held by the heirs of Watir was purchased by defendant 1 by two kobalas-8 anna share by each kobala making up the 16 anna share of the whole property. There is no reason whatever to disbelieve P. W. 2 who states that there was in fact a partition between the heirs of Watir or D. W. 2 who stated that when he asked the husband of Moiram Banu why her name was left out from the list which was a memorandum of shares to be given to the parties at the partition, her husband said that she had got some specified lands in her share. This portion of the evidence was not discussed at all in the lower appellate Court. The only portion of the evidence that was considered in the lower appellate Court appears to be Ex. C which was filed by the defendants in order to show that in lieu of the shares in this property defendants 14 and 15 got the whole of another piece of land. The learned Judge finds that this evidence was not sufficient to destroy the title of the plaintiffs'vendors; he.says that there was no other documentary evidence in the case. But he has failed to consider the oral evidence referred to by the trial Court. I have been referred to the case in Kshetro Mohan Pal v. Tufani Talukdar 1933 Cal 474, in which it was decided that where on a partition of certain bonds having been effected a list of bonds allotted to each of the parties was prepared and the list was signed by the parties that the list was not an instrument of partition which required registration. Similarly, in the present case, the list of the shares which each of the parties had in the property concerned, and which was signed by the parties, is not in itself a deed of partition but merely a note on which the parties had to proceed at the partition. That there was unquestionably a partition seems also clear from the finding of the trial Court that the plaintiffs had purchased 1 pies share in the property from defendants 14 and 15, that the plaintiffs could not remember the price they paid and that only Rs. 10 was paid in cash and the rest of the consideration of Rs. 50 was contained in a bond for Rs. 40 executed by them.
3. On these grounds I think that the decree of the lower appellate Court should be set aside and that the decree of the trial Court should be restored and that the plaintiffs' claim to 1 anna 6 pies share in the property in suit cannot be allowed. As regards the 1 pies share which Abdul Bari, husband of Moiram Banu, had inherited from Golam Hossein's widow and which was again inherited by the plaintiff's vendors from Abdul Bari, the plaintiffs claimed only 7/8 pie share but the trial Court gave them a decree for 1 pies share. But as there was no cross-appeal by the defendants against the decree of the trial Court, the plaintiff should be given a decree for the whole of 1 pies share. The result is that this appeal is allowed and the decree of the trial Court is restored with costs in this appeal and proportionate costs in the Courts below.