Kadungoth Purakkal Ammalu and Others vs Kadungoth Purakkal Meenakshi

Sundara Aiyar, J.—The plaintiffs are two out of three daughters of a deceased Thiyya. They instituted the suit against the 3rd daughter, the

defendant, for partition of the property they inherited from their father. It was alleged in the plaint that a partition deed was executed about 9th

January 1909, that this document was in the possession of the defendant, who undertook to present it for registration, that defendant,

subsequently, substituted a forged deed for that document and succeeded in getting the forged instrument registered. The plaintiffs say that they

are, therefore, entitled to a decree for partition and a declaration that the instrument of partition registered on the 9th January 1909 was a forgery

and not binding on the plaintiffs. The suit has been dismissed on two grounds. The first ground is that the plaintiff''s proper remedy was to seek for

recovery of possession of the properties which, according to their case, were allotted to them under the terms of the genuine partition deed put

forward by them. The second ground is that the daughters of a Hindu are not entitled to absolute partition, but only to partition of their rights to

enjoy the properties during their life-time.

With regard to the latter ground, I may at once state that there is nothing in the plaint to show that the plaintiffs seek a partition which would

affect the rights of the reversioner or their mutual rights of survivorship on the death of any one of them. It is settled law now that the daughters of a

Hindu are entitled to partition of their life-interests and there is no reason why the plaintiffs should not have a decree for partition which would

make them and the defendant divided with respect to their life-interests.

With respect to the other ground of decision, the instrument of partition put forward by the plaintiffs proved ineffective as the defendant kept it

away and it was never registered. The document was undoubtedly compulsorily registrable. See Lakshmamma v. Kameswara 13 M.k 281.

It is urged by Mr. Govindaragava Iyer for the respondent that, as a partition need rot be evidenced by writing at all, the plaintiff should have

sought recovery of the properties allotted to them at the partition. But the plaintiffs did not say that it was intended to effect a partition except by

means of the document relied on by them. They did not say that there was any partition apart from that document is then argued that the plaintiffs

could have sued for the recovery of the properties allotted to them on the footing of an agreement to divide, which, it is contended, was enough to

effect a severance of status between the parties. But here, again, it is not the plaintiff''s case that there was an agreement to divide which was

intended to be enforceable apart from the partition deed itself. Of course, the parties to any instrument would necessarily agree upon certain terms

which might, in one sense, be said to constitute an agreement between them. But the question is, did they enter into an agreement which was

intended to be obligatory apart from, and without the execution of, the document subsequently executed? As I understand the plaintiffs'' case, they

did not put forward any such completed agreement previous to the execution of the partition deed, nor was her present contention raised by the

defendant in her written statement. I am of opinion that the lower Courts are also wrong in holding that the plaintiffs were not entitled to the

declaration that the registered instrument was a forgery. This was not merely an incidental relief. It was essential for the plaintiffs to get the

declaration in order to be entitled to seek a fresh partition. The plaintiffs were, in any event, entitled to the declaration if they could establish that the

document was a forgery.

I would, therefore, reverse the decrees of the Courts below and remand the suit to the Court of first instance for fresh disposal according to law.

All costs up to date must abide the result.

I do not deal with the question whether the 2nd plaintiff is disentitled to partition on the ground of her minority. That point must be disposed of

along with the other questions raised in the case.

Sadasiva Aiyar, J.

Apart from the question of the right of the 2nd plaintiff, a minor, to enforce partition, it seems to me clear law that daughters have got a right to

effect a partition among themselves of their father''s properties, though, of course, such partition will not affect the rights of the surviving daughters

to the possession and the enjoyment of the properties which had fallen in the partition to the shares of the sisters who die first.

Coming to the argument of Mr. Govindaragava Iyer about the status of division having been effected between the daughters by an agreement to

divide, I am inclined to agree with him that such a status of division will be created if they have agreed to make a division and to own the property

not jointly but severally or in common after the date of the agreement, leaving the actual partition of the properties by mates and bounds to be

effected subsequently, though the ordinary presumption, having regard to the natural course of human conduct, would be that the separation of the

interests also was intended to take effect only from the date of the partition deed, if a partition deed after dividing the properties by metes and

bounds was intended to be executed within a reasonable time. But even if such a status of division has been created in this case, that, in my

opinion, will not be a defence to a suit for actual division of the properties between the daughters. At the most, it would only convert a joint

tenancy into a tenancy-in common. Both joint tenants and tenants-in-common are entitled to sue for actual division of the properties held and

owned by them.

Then, coming to the question whether the unregistered partition deed set up by the plaintiffs, assuming, of course, it really existed, would prevent

the plaintiffs from suing for any other relief than the relief of claiming from the defendant a fresh partition deed in specific performance of the

agreement to divide, which must have preceded the execution of that document, it seems to me that all that the case of Chinna Krishna Reddi v.

Dorasami Reddi 20 M.k 19 following Venkatasami v. Kristayya 16 M.k 341 decides is, that the plaintiff has got a right to enforce that previous

agreement if the deed first executed in pursuance of the agreement fails to fulfil its purpose through legal defects, and not that he loses all other

rights which he might have under the law. When a contract is broken by one of the parties, the other party is also entitled to put an end to the

contract and claim to be entitled to, and fall back on, the rights which existed in him before the contract was entered into. Here, in this case, the

defendant has repudiated the contract which preceded the execution of the first unregistered partition deed. The plaintiff''s are entitled, therefore,

also themselves to put an end to the contract which provided particular terms as to the mode in which the division was to be effected and to go

back to their rights as joint tenants or tenants-in-common to enforce partition. In this view, the plaintiffs'' right to enforce partition without reference

to the terms of the alleged original partition deed has not been lost and can be enforced. I, therefore, agree with my learned brother in the decree

proposed by him.