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Judgment
King, J.—The minor defendant in this case with his mother as guardian, and his two uncles, one of whom is Narasimhamurti, P.W. 3,
effected a partition of their immovable property in October, 1930. As one of the terms of that partition, and in order to equalise the shares of the
three members of the family, it was arranged that P.W. 3 should pay off all the family debts and that the other two should execute promissory notes
in his favour for Rs. 1,500 and Rs. 700, respectively. Accordingly defendant''s mother executed the suit promissory note in favour of P.W. 3 for
Rs. 700 on the same day. This note was transferred by P.W. 3 to the plaintiff, who has now sued the defendant upon it.
The main defence raised was that the minor defendant is not liable upon the pronote. In order to meet that defence it was necessary for plaintiff
to prove that the pronote was executed for necessity. To prove this he called P.W. 3, who spoke to the terms of the partition. In cross-
examination he admitted that there were unregistered partition lists in existence. The lower Court held that these lists were inadmissible in evidence
and consequently that there was no valid partition, no valid debt binding upon the defendant. Against this decision plaintiff has filed the present Civil
Revision Petition.
I am unable to agree with the language in which the lower Court has formulated its decision. It is well settled, that there can be a valid partition
without any document at all. See Ram Gopal v. Tulshi Ram ILR (1928) All. 79. But the real question is whether plaintiff is debarred from proving
the terms of this partition once the existence of the unregistered partition-lists is established. If he cannot prove those terms, he cannot prove the
necessity for the defendant''s guardian to execute the pronote and he must fail. Not without reluctance I have come to the conclusion that the lower
Court''s decision is right.
I have had a translation of one of the partition-lists before me and it is obvious from it, indeed it was not seriously challenged by petitioner''s
learned advocate that it is a document which requires registration u/s 17 of the Registration Act. u/s 49 it cannot therefore be received in evidence
unless it satisfies one of the conditions of the proviso. This is not a case in which plaintiff can take advantage of Section 53-A of the Transfer of
Property Act, for that section relates only to the retention of immovable property of which P.W. 3 or plaintiff might be in possession. Nor do I see
how the promise to pay Rs. 700 can be called a ''collateral transaction''. It is obviously one of the terms of the partition itself and R.N. Samuvier
and Another Vs. R.N. Ramasubbier, and Bhabi Dutt v. Ramalalbyamal AIR 1934 Rang. 303 are clear authority for the position that though
plaintiff''s claim is a claim for money only, if it is part of an agreement which affects immovable property and that agreement must be regarded as
''an indivisible whole to effect a fair distribution of the assets'' to quote from R.N. Samuvier and Another Vs. R.N. Ramasubbier, plaintiff cannot be
permitted to tender his unregistered document in evidence.
Plaintiff being thus unable to tender the partition-list in evidence, is next confronted with Section 91 of the Evidence Act which lays it down in
unmistakable language that he cannot also tender any oral evidence of the terms of the partition. The result is that he can give no evidence at all of
those terms and cannot prove any necessity for the execution by defendant''s guardian of the pronote. This Civil Revision Petition must accordingly
be dismissed with costs.