http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: NANNI BAI AND OTHERS

       Vs.

RESPONDENT: GITA BAI

DATE OF JUDGMENT: 14/04/1958

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER SUBBARAO, K.

CITATION:  1958 AIR  706            1959 SCR  479

ACT: Agriculturist   Protection   of--Jurisdiction   of   Special Judge--Execution sale, if binds the legal representative not Party to it-Limitation-Mitakshara Law of Partition-Document, if  and when must be  registered-Admissibilitv-Sangli  State Agriculturist Protection, Act (1 of 1936)-Indians Limitation Act (IX of 1908), Arts. 12, 134 and 148-Indian  Registration Act (Act XVI of 1908), ss. 17 and 49.

HEADNOTE: This  was  an  appeal  by  the  defendants  in  a  suit  for possession on redemption of certain mortgages instituted  in the Court of the Special judge exercising jurisdiction under the Sangli State Agriculturists Protection Act (1 of  1936). Their  case was that the mortgaged properties had been  sold at  auction and purchased by their father who had sold  most of  them  to  other persons more than 12  years  before  the institution  of the suit and as such the suit was barred  by limitation.  The trial Court dismissed the suit.  On  appeal the  High Court of Sangli permitted the plaintiff  to  amend the plaint originally filed so as to include the relief  for redemption   and  remanded  the  suit.   The  trial   court, thereafter, decreed the suit in part, holding that the claim in respect of portions only of the mortgaged properties  was barred by limitation.  Both the parties appealed to the High Court  of Bombay and the appeals were heard  together.   The High Court dismissed the defendant’s appeal and allowed  the plaintiff’s  appeal holding that Art. 148 and not Art.   I34 Of   the  Limitation  Act  applied.   In  the  result,   the plaintiff’s suit was decreed in its entirety. Held, that the preliminary objection that the Special  judge had  no jurisdiction under the Sangli  State  Agriculturists Protection Act to entertain the suit must be overruled.  The fixing of ,915 as the date-line by the Act had reference  to such  reliefs  as could be had only by way of  reopening  of closed  transactions and could not, therefore, preclude  the Special  Judge  from granting other reliefs  in  respect  of transactions entered into prior to 1915. Nor  could  it be contended in bar that  the  plaintiff  was bound in the first instance to set aside an auction sale  of the  mortgaged properties in execution of a money decree  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

which  she  was  not substituted in place  of  her  deceased father as his true heir and legal representative nor made  a party  and  no  controversy was raised by  the  parties  nor decided  by  the  Court  as  to  who  was  the  true   legal representative.   The plaintiff was entitled to  ignore  the sale and the suit was not barred under Art. 12 of the  Limi- tation Act. 480 Malkarjun  Bin Shidramappa Pasare v. Narhari  Bin  Shivappa, (1900) L.R. 27 I.A. 216, doubted and distinguished. In  order  that  Art.  I34 of the Limitation  Act  might  be attracted  to  a suit for possession on redemption,  it  was necessary for the defendant to prove affirmatively that  the mortgagee  or  his succesor-in-interest  had  transferred  a larger interest than was justified by the mortgage.   Where, as  in the present case, this was not done, Art.  134  could not  apply and the only other article which could-apply  was Art. 148 Of the Limitation Act. Under  the Mitakshara School of Hindu Law partition  may  be either   (1)  a  severance  of  the  joint  status  of   the coparcenary by mere defining of shares but without  specific allotments  or  (2)  partition  by  allotment  of   specific properties  by  metes and bounds according to  shares.   The latter,   if   reduced  to  writing   becomes   compulsorily registrable under s. I7(1)(b) of the Indian Registration Act but the former does not. Consequently,  in the present case such  unregistered  docu- ments  as  were  adduced by the plaintiff  for  the  limited purpose  of  proving partition in the former sense  did  not fall within the mischief Of s. 49 of the Indian Registration Act and were admissible in evidence.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 177 of 1954. Appeal from the judgment and decree dated October 9, 1950 of the  Bombay  High Court in First Appeals Nos. 361 &  363  of 1948  from Original Decree arising out of the  judgment  and decree  dated  July  31,  1946,  of  the  Court  of  Special Tribunal, Mangalvedhe in Special Suit No. 1322 of 1938. L.   K. Jha, Rameshwar Nath, J. B. Dadachanji and S.   N. Andley, for the appellant. K.   R. Bengeri and K. R. Chaudhari, for the respondent. 1958.   April 14.  The following Judgment of the  Court  was delivered by SINHA  J.-This is a defendants’ appeal by leave  granted  by the High Court of Judicature at Bombay from the decision  of that Court, dated October 9, 1950, in two cross-appeals from the  decision of the Special Judge of the  Special  Tribunal Court  at Mangalvedhe, dated July 31, 1946, in Special  Suit No.  1322  of  1938.  Of the two  cross-appeals,  the  First Appeal  No. 361 of 1948, by the appellants,  was  dismissed, and the First 481 Appeal No. 363 of 1948, by the plaintiff, was allowed.   The plaintiff-respondent had instituted another suit, being suit No.  1894 of 1937, which was also tried along  with  Special Suit No. 1322 of 1938.  The former suit stands dismissed  as a  result of the judgment of the High Court, and  no  appeal has been brought against that judgment to this Court. The  suit out of which this appeal arises (Special Suit  No. 1322  of 1938), was instituted under the provisions  of  the Sangli State Agriculturists Protection Act, granting certain reliefs  from indebtedness to agriculturists of  that  State

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

which  was  then outside what used to be  called  "  British India ". The suit as originally framed, prayed for  accounts in respect of two mortgages, though there were really  three mortgages,  to be described in detail hereinafter,  and  for possession of the, lands comprised in those mortgages.   The first,  defendant filed his written statement on January  6, 1940,  contesting  the suit mainly on the  ground  that  the plaintiff  had no title to the mortgaged properties in  view of  the  events  that  had  happened;  that  the   mortgaged properties  had  been sold at auction and purchased  by  the defendant’s father who, thus, became the full owner thereof; and that he had sold most of the properties to other persons who   were   holding  those  properties  as   full   owners. Defelidant No. 3 who also represents the original mortgagee, filed  a  separate written statement  supporting  the  first defendant.   Of the defendants who are transferees from  the original  mortgagees  or their heirs only  defendant  No.  8 filed his written statement on March 26, 1940, substantially supporting the first defendants written statement and adding that  he had purchased the bulk of the mortgaged  properties after acquisition of full title by the mortgagees themselves more  than 12 years before the institution of the suit,  and that, therefore, it was barred by limitation. The  trial  court dismissed the suit by its  judgment  dated November  26, 1941, with costs.  On appeal by  the  defeated plaintiff,  the  Special Bench of the High Court  of  Sangli State,  by  its judgment dated June 13, 1944,  remanded  the suit for a fresh trial after having permitted the  plaintiff to amend the plaint so as to 482 include  the relief for redemption.  It appears that  during the  pendency of the suit after remand, an  application  was made in February, 1945, for making substitution in place  of defendant No. 2 who had died meanwhile, but the  application was  refused  by the Court on the ground that the  suit  had abated as against that defendant. After reframing the issues and  rehearing the ,lase, the trial court, by  its  judgment and  decree  dated  July 31, 1946,  dismissed  the  suit  as against  defendants 6 to 9 who were holding portions of  the mortgaged  properties  by sale-deeds of the years  1919  and 1922, for more than 12 years, as barred by limitation  under Art. 134 of the Limitation Act.  The Court decreed the  suit in  respect  of  the mortgaged portion of R.  S.  No.  1735, having  an  area  of 16 acres and  21  gunthas,  as  against defendant No. 3, and R. S. No. 334 against defendant No. 1’s heirs.   Each  party  was directed to  bear  its  own  costs throughout.  From that decision, the defendants preferred  a first  appeal, being First Appeal No. 361 of 1948,  and  the plaintiff  filed a crossings, being First Appeal No. 363  of 1948,  in the High Court of Judicature at Bombay.  Both  the appeals  were  heard together along with  two  other  cross- appeals arising out of the other suit mentioned above.   The High  Court,  by its judgment and decree  dated  October  9, 1950, dismissed the defendants’ appeal No. 361 of 1948,  and allowed the plaintiff’s appeal No. 363 of 1948, with  costs, holding  that  Art. 148 and not Art. 134 of  the  Limitation Act,  applied to the suit, and that, therefore, it  was  not barred  by limitation.  In the result, the plaintiff’s  suit was  decreed  in  its entirety.Hence,  this  appeal  by  the defendants. A  number of Questions of fact and law have been  raised  by the  learned  counsel  for the  appellants,  but  before  we proceed  to deal with them, it is convenient to  dispose  of the  preliminary  points in bar of the suit.  At  the  fore- front  of  his  submissions, the  learned  counsel  for  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

appellants   contended  that  the  suit  was   outside   the jurisdiction  of the Special Court created under the  Sangli State  Agriculturists  Protection  Act  I  of  1936.    With reference  to the provisions of that Act, it  was  contended that the Act authorized the Special Court to 483 take  accounts and to reopen closed transactions only up  to the  year 1915, and that as the transactions which were  the subject-matter of the suit, were of the years 1898, 1900 and 1901,  the Special Court was not competent to go into  those transactions  and  grant any relief  to  the  agriculturist- plaintiff.   In our opinion, there is no substance  in  this contention.   The Sangli Act referred to above,  had  chosen the year 1915 as the dateline beyond which the court was not competent  to grant any relief to agriculturists, by way  of reopening  of closed transactions.  But that does  not  mean that  the  court itself was incompetent to grant  any  other relief  in respect of transactions of a date prior to  1915. If the legislature had intended to limit the jurisdiction of the Special Court, as contended on behalf of the appellants, nothing would have been easier than to say in express  terms that the court’s jurisdiction to grant relief was limited to transactions  of that year and after, but there are no  such words  of  limitation  in  any part  of  the  statute.   The operative  portion of the statute does not contain any  such provision.  In our opinion, therefore, the Special Court was competent  to entertain the suit for redemption,  though  it would not be competent to reopen those transactions even  if any such question of reopening closed transactions had  been raised.  But it is manifest that no such question arose  out of  the  pleadings  in this case.   Hence,  those  words  of limitation  are wholly out of the way of the plaintiff.   It may  be mentioned that no such plea of want of  jurisdiction of  the trial court, had been raised in the pleadings or  in the issues in the courts below.  This ground was raised, for the first time, in the statement of case in this Court.  The preliminary objection to the jurisdiction of the trial court is, thus, overruled. It was next contended that the suit was barred by limitation of one year under Art. 12 of the Limitation Act.  The  point arose  in  this way.  The properties sought to  be  redeemed were mortgaged, as will presently appear, successively under three  bonds  of  the  years 1898, 1900  and  1901,  by  the plaintiff’s  father,  Gundi (omitting all reference  to  his brothers). 484 It  appears  that there was a decree for money of  the  year 1903,  in  favour  of a third party who is  not  before  us. Gundi  had been stied as the original defendant,  but  after his  death, his place was taken by his brother  Sadashiv  as his  heir  and legal representative.  In  execution  of  the decree,  the mortgaged properties were auction-purchased  by the  mortgagee’s Fulchand, son of the first defendant as  it appears from the sale-certificate, Exh.  D-56, dated October 31,  1907.  On the basis of this auction-purchase,  it,  has been  contended on behalf of the mortgagee that  unless  the sale were set aside, it would bind Gundi and his  successor- in-interest,  the plaintiff.  The High Court has  held  that Art.  12 is out of the way of the plaintiff because  neither the  plaintiff nor her father was a party to the  sale.   If Gundi himself were a party to the execution proceedings, the sale  as  against  him,  would  bind  his  estate  and   his successor-in-interest.   But  it  appears  that  Gundi   was substituted  by  his  brother  Sadashiv  in  the   execution proceedings.     If    Sadashiv    could    not    be    the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

representative-in-interest  of  Gundi,  as  will   presently appear,  he could not have represented Gundi’s estate,  and, therefore, the gale as against him, would be of no effect as against the plaintiff.  Bat it was argued in answer to  this contention  that  the decision of the Privy Council  in  the case  of  Malkarjun Bin Shidramappa Pasare  v.  Narhari  Bin Shivappa (1), is an authority for the proposition that  even if  the property was sold by substituting a wrong person  as the  legal representative of the judgment-debtor,  the  sale would  bind the estate of the judgment-debtor as much as  if the  right  legal  representative had been  brought  on  the record  of  the execution proceedings.   Assuming  that  the decision of the Privy Council in Malkarjun’s case (supra) is correct, and that it is not subject to the infirmities of an ex  parte judgment, asimay well be argued, that decision  is clearly  distinguishable  so  far as  the  present  case  is concerned.   In  Malkarjun’s case, the executing  court  had been  invited to decide the question as to who was the  true legal representative of the judgment-debtor, and the  court, after (1)  (1900) L.B. 27 1, A. 216 485 judicially  determining  that controversy,  had  brought  on record  the  person who was adjudged to be  the  true  legal representative.  The sale was held to be of the property  of the judgment-debtor through his legal representative,  after the adjudication by the court.  The Privy Council held  that though  the decision of the court on the question as to  who was  the  true  legal representative, was wrong,  it  was  a decision  given  in  that  litigation  which  affected   the judgment-debtor  and his true legal  representative,  unless set aside in due course of law.  In the present case,  there was no such adjudication.  From the scanty evidence that  we have  on this part of the case, it appears that  Gundi,  the original  defendant,  had  died and had  been,  without  any controversy,  substituted  by his  brother,  Sadashiv.   The court  had not been invited to determine any controversy  as between Sadashiv and the true legal representative of  Gundi deceased.   In execution proceedings, the property was  sold as that of Sadashiv the substituted judgment-debtor.  It was a moneysale and passed only the right title and interest  of Sadashiv,  if  it bad any effect at all.   Malkarjun’s  case (supra),  therefore, is of no assistance to the  appellants. The  plaintiff, Gundi’s daughter, not being affected in  any way  by the sale aforesaid, it is not necessary for  her  to sue  for setting aside the sale.  She was entitled,  as  she has  done,  to ignore those execution  proceedings,  and  to proceed  on the assumption, justified in law, that the  sale had  not affected her inheritance.  The suit is,  therefore, not barred by Art. 12 of the Limitation Act. It was next contended that even if Art. 12 was not available to the defendants by way of a bar to the suit, the suit  was certainly  barred  under  Art. 134 of  the  Limitation  Act. Under  Art.  134,  the  plaintiff  has  to  sue  to  recover possession of immovable property mortgaged and,  afterwards, transferred  by the mortgagee for a valuable  consideration, within  12 years from the date the " transfer becomes  known to the plaintiff ". On the other hand, it has been contended on behalf of the plaintiff that the usual 486 rule  of  60  years’  limitation  under,  Art.  148  of  the Limitation  Act, governs the present case.  On this part  of the case, the defendants suffer from the initial  difficulty that  the sale-deeds relied upon by them in aid of the  plea of  limitation under Art. 134, have not been brought on  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

record  of this case, and, therefore, the Court is not in  a position  to know the exact terms of the  sale-deeds.   This difficulty,  the appellants sought to overcome  by  inviting our  attention to the statements made in paragraph 8 of  the plaint.   But those are bald statements giving  the  reasons why  the defendants other than the original mortgagee,  were being  impleaded as defendants.  There is no clear  averment in  that  paragraph of the plaint about the  extent  of  the interest  sold  by  those  sale-deeds  and  other  transfers referred  to  therein.  The Court is, therefore,  not  in  a position  to find out the true position.   Those  sale-deeds themselves  were the primary evidence of the interest  sold. If  those  sale-deeds  which  are  said  to  be   registered documents,  were  not available for any  reasons,  certified copies  thereof could be adduced as secondary evidence,  but no  foundation  has  been  laid in  the  pleadings  for  the reception  of other evidence which must always be of a  very weak  character in place of registered documents  evidencing those  transactions.   Article  134 of  the  Limitation  Act contemplates  a  sale  by the mortgagee  in  excess  of  his interest  as such.  The legislature, naturally,  treats  the possession  of such transferees as wrongful, and  therefore, adverse to the mortgagor if he is aware of the  transaction. Hence,  the longer period of 60 years for redemption of  the mortgaged  property  in the hands of the  mortgagee  or  his successor-in-interest, is cut down to the shorter period  of 12  years’  wrongful  possession  if  the  transfer  by  the mortgagee  is  in  respect of a larger  interest  than  that mortgaged  to  him.   In order, therefore,  to  attract  the operation of Art,. 134, the defendant has got  affirmatively to prove that the mortgagee or his successor-in-interest has transferred   a  larger  interest  than  justified  by   the mortgage.   If  there is no such proof, the  shorter  period under Art. 134 is not available to the                      487 defendant in a suit for possession after redemption.  A good deal  of argument was addressed on the question as  to  upon whom lay the burden to prove the date of the starting  point of  limitation under that article.  It was argued on  behalf of  the defendants-appellants that as it is a matter  within the  special knowledge of the plaintiff, the  plaint  should disclose the date on which the plaintiff became aware of the transfer.  On  the other hand, it was contended on behalf of the  plaintiff-respondent that it is for the  defendants  to plead  and  prove  the  facts  including  the  date  of  the knowledge  which would attract the bar of  limitation  under Art.  134.  As we are not satisfied, for the  reasons  given above, that Art. 134 is attracted to the present case, it is not  necessary to pronounce upon that controversy.   It  is, thus, clear that if Arts. 12 and 134 of the Limitation  Act, do not stand in the way of the plaintiff’s right to  recover posses.-,ion, the only other Article which will apply to the suit, is Art. 148.  It is common ground that if that Article is applied, the suit is well within time. Before  dealing with the factual aspects of the case, it  is necessary  to  deal  with another plea in bar  of  the  suit raised  on behalf of the appellants.  It is  contended  that the suit is bad for defect of parties in so far as the heirs of the second defendant are concerned.  It appears from  the order dated March 27, 1946, passed by the trial court during the  pendency  of  the suit after remand,  that  the  second defendant died on April 26, 1943, that is to say, while  the appeal  before  the Bombay High Court was  pending  in  that Court  before  remand.   The  then  appellant  who  was  the plaintiff,  did not take steps to bring on record the  legal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

representatives  of that defendant.  An attempt was made  by the  plaintiff later on to get his heirs substituted on  the record,  but the Court upheld the defendants  objection  and did  not allow substitution to be made.  It was,  therefore, noted  that  the appeal which was then pending in  the  High ’Court, had abated as against defendant No. 2, and that, the order  of remand made after his death and in the absence  of his   legal   representatives,  would   not   affect   them. Therefore, it was 488 contended  that the whole suit would abate, because, in  the absence  of the heirs of the deceased defendant No.  2,  the suit  was imperfectly constituted under 0. 34, r. I  of  the Code  of  Civil Procedure.  That rule requires  that  "  all persons  having an interest either in the  mortgage-security or   in  the  right  of  redemption  shall  be   joined   as parties............ The original mortgagee. under the  three mortgages, was Kasturchand Kaniram.  The defendant No. 1 has contested  this suit by filing a separate written  statement of  his  own as the successor-in-interest  of  the  original mortgagee.   It does not appear from the pleadings that  the second defendant was a joint mortgagee with the first defen- dant or his ancestors.  The only statement in the plaint  in para. 8, with reference to the second defendant, is that the "  Lands R. S. No. 1735 has gone to the share  of  defendant No.  2. Defendant No. 3 looks after all the transactions  of defendant  No.  2 and the shop running under the name  of  ’ Kaniram Kasturchand ’ has gone to the share of defendant No. 3  ".  Thus, it is not a case of the first  defendant  being joint  with the other defendants including defendant  No.  2 who is not now represented on the record.  If defendant  No. 2 had any distinct interest, that, on the plaint, appears to be  confined  to R. S. No. 1735.  In the  written  statement filed  on  behalf of the third defendant, it  is  stated  in para. 9 that the mortgaged portion of R. S. No. 1735  which, according  to  the plaint, was the property  of  the  second defendant,  was really in possession of the third  defendant as  owner.  It would, thus, appear that even in  respect  of that plot, the second defendant had no subsisting  interest. This  claim  of the third defendant is strengthened  by  the fact  that  the second defendant did not  file  any  written statement challenging \the statement aforesaid of the  third defendant or claiming any interest in that plot or any other part  of the mortgaged property.  The second  defendant  had remained  ex parte throughout, apparently because he had  no interest in the property to be redeemed.  In any view of the matter,  his  heirs are not parties to this  suit,  and  any determination in this suit will not bind them.  But it  does appear that 489 the  second defendant had no subsisting interest, if he  had any at any anterior period, in any portion of the  mortgaged property. It  was  also contended that the original  defendant  No.  8 died,  and  in  his  place defendants Nos.  8a  to  8g  were substituted.    It  appears  that  of  the   seven   persons substituted  on the record as the legal  representatives  of the original defendant No. 8, only defendants 8e, 8f and  8g were served, and the others, namely, 8a, 8b, 8c and 8d  were not served.  On those facts, it was contended that the  suit for  redemption was bad in the absence of all the  necessary parties.   It was sought, at one stage of the arguments,  to be argued that the suit had abated against defendant No.  8, and  this  argument,  in  the High Court,  was  met  by  the observation  that  under  O.  XXII,  r.  4,  Code  of  Civil

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

Procedure, it was enough to bring on record only some out of the  several legal representatives of a deceased  party,  on the  authority of the judgment of the Bombay High  Court  in Mulchand  v. Jairamdas (1).  But on the facts stated  above, there  was no room for the application of r. 4, O.  XXII  of the  Code.  All the legal representatives, at any rate,  all those persons who were said to be the legal  representatives of  the  deceased  defendant No. 8,  had  been  substituted. Thus,  the requirements of O. XXTI had been fulfilled.   If, subsequently,  some of the heirs, thus substituted, are  not served, the  question is not one of abatement of the suit or of the appeal, but as to whether the suit or the appeal  was competent  in  the absence of those persons.   It  does  not appear that the absent parties were really necessary parties to  the  suit  or the appeal in the  sense  that  they  were jointly interested with the others already on the record  in any   portion   of   the  mortgaged   property.    In   what circumstances  they were not served or ordered to be  struck off  from  the  record, does not  clearly  appear  from  the printed record before us.  The defendant No. 8e who  happens to be the brother of the original defendant No. 8, has  only filed  a written statement claiming that he and his  vendor, defendant  No.  7, had been in possession for more  than  12 years, and that (1)  (1934) 37- Bom.  L, R. 288, 490 the suit was, on that count, barred by limitation.  None  of the  other defendants who had been brought on the record  in place  of the original defendant No. 8, has appeared in  the suit or in the appeal to contest the claim of defendant  No. 8e  that  he  was  in possession  of  that  portion  of  the property,  namely, 6 acres and 32 gunthas out of R.  S.  No. 242  (old survey No. 233).  Renee, there was no question  of abatement  of  the suit or the appeal.   The  only  question which may or may not be ultimately found to be material on a proper investigation, may be whether the decree to be passed in  this  case, would be binding on those who had  not  been served.   For  ought we know it may be that  they  were  not interested  in  the plot sought to be  redeemed.   On  these findings,  it must be held that the  preliminary  objections raised on behalf of the defendants in bar of the suit,  must be  overruled.  Hence, the whole suit cannot be held  to  be incompetent for the reason that the heirs of defendant No. 2 have not been brought on the record. Having,  thus, disposed of the specific pleas in bar of  the suit, we now turn to the contentions bearing on the  factual aspects  of  the  controversy.  It was  contended  that  the plaintiff  who is admittedly the daughter of Gundi, has  not established her title to the mortgaged properties.  In  this connection, it is convenient to set out the essential  facts in  relation to the three mortgage. deeds in question.   The first  mortgage  is  dated  June  4,  1898,  in  favour   of Kasturchand Kaniram, executed by Gundi, son of Appa, for the sum  of  Rs. 700, the amount borrowed by him,  mortgaging  7 survey  numbers  with an aggregate area of 43 acres  and  38 gunthas.  It was a mortgage with possession for a period  of 4  years,  with Gundi’s two  brothers-Sadashiv  and  Rama-as sureties for the repayment of the amount borrowed which  was the personal responsibility of Gundi under the terms of  the document.   But  the property mortgaged  is  admittedly  the ancestral  land of the three brothers.  The second  mortgage between the same parties in respect of the same  properties, bears  the date May 25, 1900.  It secures a further  advance of Rs. 300 to the mortgagor, the payment of which debt                   491

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

is  again assured by his two brothers-Sadashiv  and  Rama-as sureties.  The third mortgage-bond is for a further  advance of  Rs.  200  to  the mortgagor  Gundi,  with  his  brothers aforesaid  again  figuring  as sureties.   It  would,  thus, appear  that  all the three mortgages are between  the  same parties as mortgagor and mortgagee, and the two brothers  of the  mortgagor join in executing the mortgages as  sureties, the  property given in mortgage belonging to all  the  three brothers.  The total advance of Rs. 1,200 under those  three mortgages,  was  made to the principal  debtor,  Gundi.   It appears  that, of the three brothers, Rama died  first,  and then  Gundi,  some  time  in  1903,  survived  by  his   two daughters-the   plaintiff   and  defendant  No.   13.    The plaintiff’s  case is that the common ancestor, Appa, in  his lifetime,  had effected a partition amongst his  three  sons aforesaid, giving them each specific portions of his  lands, reserving a portion for the maintenance of his wife.   Those transactions  are  exhibits P-43, P-44, P-45 and  P-46,  all dated  August  31  or September 1,  1892,  and,  apparently, forming  parts  of the same transaction.  These  are  formal documents  giving details of the lands allotted to each  one of  the  three  brothers  and to  their  mother  by  way  of maintenance.  The common recital in these documents, is that the executant of the documents, Appa, had three  sons-Gundi, Sadashiv  and Rama, in order of seniority-" who cannot  pull on   together   The  document  further   recites:   ".Hence, separation having been effected with your consent, (I  have) divided in every way and given you the estate, the land, the assets  etc., pertaining to the one-third share.   The  same are  as under.  " Then follow the details of the  properties separately  allotted to each of them.  The plaintiff’s  case is that ever since 1892-the date of the documents aforesaid- the  three  branches of the family had  become  separate  in estate, if not also divided in all respects, and that on the death  of Raina, Guildi and his brother  Sadashiv  inherited his  one third share in equal moieties, that is to say ,  on the  death  of  their  mother and  their  brother,  the  two brothers became owners of half and half of the ancestral 492 property  left by Appa who appears to have died  soon  after the alleged partition.  The plaintiff’s case further is that the  principal  mortgagor in all  those  three  transactions aforesaid,  was Gundi, and his two brothers had joined  only as  sureties by way of additional security in favour of  the mortgagee, It has been contended on the other hand on behalf of  the defendants-appallants that, in the  first  instance, the documets of 1892, referred to above, do not evidence  an actual partition by metes and bounds, but only represent  an arrangement  by  way of convenience for more  efficient  and peaceful  management  of  the  family  property,  and  that, alternatively,  if those documents are claimed to  have  the efficacy  of  partition  deeds,  they  are  inadmissible  in evidence  for want of registration.  The courts  below  have held  that those documents are inadmissible in  evidence  as regular deeds of partition which they purport to be, in view of  the  provisions  of the  Registration  Act.   But  those transactions  have been used for the collateral  purpose  of showing  that  from  that time, the  three  brothers  became separate  in estate, and evidencing the clear  intention  on the  part of each one of them to live as separated  members, each  with one-third share in the paternal estate.  In  this connection, reliance was placed on behalf of the appellants’ upon  what was alleged to be the subsequent conduct  of  the three  brothers  after  1892,  as  evidenced  by  the  three mortgage-bonds  themselves  and the  saledeed-exhibit  D-54-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

dated  June 17, 1909.  By the last named document,  Sadashiv purported  to  sell  to Fulchand  Kasturchand,  son  of  the original  mortgagee, practically the whole of the  mortgaged properties,  for  a sum of Rs. 1,500.  The recitals  in  the sale-deed  would  certainly  make  it  out  that  the  three brothers  were joint in estate, and that the  sale-deed  was being  executed to pay off the personal loans of  Gundi  and Rama during the Years 1900 to 1903, plus the loans taken  by the vendor himself.  Finally, the deed proceeds to make  the following  very significant declaration as to the status  of the  members of the so-called joint family: "As I have  sold to you my right, title and interest in the above said lands, neither I nor my heirs and                      493 executors of my will have any right whatsoever over the said property.   As  I am the male heir in the  joint  family  by survivorship  nobody  except  me has  any  interest  in  the aforesaid lands.  I have sold to you whatever interest I had in the said, lands." It  was further contended that even strangers to the  family treated  the  brothers as joint in estate as  shown  by  the execution proceedings and the sale certificates of the years 1903  to 1907, whereby Sadashiv was substituted as the  sole heir and legal representative of the defendant Gundi, in the suit for money which resulted in the, auction-sale  referred to above, of the ear 1907. If  the  transaction  of the year  1892,  is  admissible  in evidence, for the purpose for which the document was used in the  courts  below, namely, to prove separation  in  estate, there  is no room for ambiguity, and the position  is  clear that  the  three  brothers  had  become  separate.   Further recitals  in those documents that specific portions  of  the ancestral  property had been allotted to the three  brothers separately,  being in the nature of a partition deed by  the father  in  his  life-time,  and  being  unregistered,   are inadmissible in evidence to prove such a partition.  But the plaintiff’s  case  does  not depend  upon  proof  of  actual partition  by  metes  and bounds.  In  the  absence  of  any ambiguity,  the  later transactions would  not  be  relevant except  to show that there was a subsequent reunion  amongst the brothers, which is no party’s case. But  it  was argued on behalf of the appellants  that  those documents-exhibits P series aforesaid-are not admissible  in evidence even for the limited purpose of showing  separation in  estate.   The  question,  therefore,  is  whether  those documents  " purport or operate to create, declare,  assign, limit  or extinguish, whether in present or in  future,  any right,  title or interest, whether vested or contingent,  of the  value  of  one hundred rupees and  upwards,  to  or  in immovable  property", within the meaning of s. 17(1) (b)  of the Registration Act.  No authority has been cited before us in support of this contention.  Partition in the 63 494 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  amongst  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

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  s.  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 immovable property.  Such a  transaction  only affects  the  status of the member or the members  who  have separated themselves from the rest of the coparcenary.   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 say, the partition in the latter sense, it does not come within the purview  of s. 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 495 does not purport or operate to 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 s. 17, and would, therefore, not come within the mischief of s. 49  which  prohibits  the reception  into  evidence  of  any document  "  affecting  immoveable  property  ".  It   must, therefore,  be held that those documents have  rightly  been received in evidence for that limited purpose.  Lastly,  it  was contended that if those documents  of  the year  1892  are admissible to prove separation  amongst  the three  brothers,  then, oil the death of one of  the  three, namely,  Rama,  and of their mother,  the  entire  ancestral properties including the mortgaged properties, vested in the two brothers in equal shares.  Both by the  auction-purchase of the year 1906 (D-57-D) and the sale deed (exhibit D-54 of the  year  1909), Sadashiv’s moiety share in  the  mortgaged property,   was  purchased  by  Fulchand   aforesaid.    The plaintiff,  therefore,  could only claim  the  other  moiety share  of  her father, Gundi.  In our opinion, there  is  no answer to this contention because it is clear upon a  proper construction   of  the  three  mortgage-bonds  and  on   the plaintiff’s  own case that the entire  ancestral  properties and not only Gundi’s share, had been mortgaged.  The  appeal will, therefore, be allowed to the extent of the half  share rightly belonging to Sadashiv, and the decree for possession after  redemption  will  be  confined  to  the  other   half belonging to the plaintiff’s father. In the result, the appeal is allowed to the extent indicated above.   As success between the parties, has  been  divided, they are directed to bear their own costs throughout. Appeal allowed in part. 496