Nand Lal Mahton and Others vs Dhanukdhari Mahton and Others

Das, J.—Tills appeal arises out; of a suit instituted by the appellants for partition of joint family properties. The only defence which we need consider is that there was a, previous partition and that the parties were in separate possession of their respective shares. The court of first instance believing the case of the plaintiffs gave them a decree for partition. The lower appellate court has reversed the decision of the court of first instance and has dismissed the plaintiffs'' suit with costs in both the courts.

The definite case which was made by the defendants was that the partition was carried out by means of a document which was executed by the parties. It is conceded that the document upon which the defendants undoubtedly rely was not a registered document and the question which was argued in the lower appellate court and the question which has been argued in this Court is that the document being inadmissible in evidence, the learned Judge in the court below should not have found partition on the oral evidence in the case. The learned Judge''s view appears to be this that the court of first instance did not refer to the document and the document was as a matter of fact not admitted in evidence and, therefore, it was open to the defendants to succeed on the oral evidence especially as the plaintiff did not object to the reception of oral evidence. In my opinion the decision of the learned Judge in the court below on this point is not correct. The point was conclusively established in the case of Upendra Nath Banerjee v. Umesh Chandra Banerjnee (1910) Cri.L.J. 25. It was pointed out in that case that when men agree to preserve by writing the remembrance of past events of which they wish to create a memorial either with a view to lay down a Rule for their own guidance, or in order to have in the instrument a lasting proof of the truth of what is written, the truth of the written acts must be established by the acts themselves, that is, by the inspection of the originals. It was also pointed out that if the document missible in evidence oral evidence was wholly inadmissible. So far as the first point which has been urged before us by Mr. Jayaswal is concerned, it must succeed.

But the decision on this point by no means concludes the ease. The learned Judge in the court below has come to the conclusion that the partition was acted upon between the parties and that the agreement to partition the properties has been carried into effect. It is well established that a partition may be found upon the actings of the parties though it may be that the act itself was not clothed in the formalities required by law. The English cases of Walsh v. Lonsdale [1882] 21 Ch. D. 9 and Maddison v. Alderson [1883] A.C. 467 support the proposition. It has been laid down in numerous cases that if there be a part performance by the party seeking relief, and to the knowledge of the other party, proof will be admitted of the verbal contract; in oases where an action for specific performance would lie. But part performance is only an exception to the plea of the Statute of Frauds in an action for specific performance. Mr. Jayaswal relies upon the case of Upendra Nath Banerjee v. Umesh Chandra Banerjee (1910) Cri.L.J. 25 in support of the proposition that the English doctrine of part performance is inapplicable to a case where the partition is carried out by a document which is not registered. But a careful reading of the decision of Mr. Justice Mukerjee shows that that is not what that learned Judge intended to lay down in that case. That was a case where the plaintiffs brought a suit for partition and the defence was that a portion of the property had been previously partitioned between the parties. In other words, the defendants relied upon the fact "that there had been a partial partition of the joint family properties by agreement of the parties. Mr. Justice Mukerjee pointed out that a suit for partial partition would not lie in a Civil Court although such a partition could be carried out by agreement of the parties outside court and as a suit for specific performance would not lie in respect of an agreement to partially partition the joint family properties, the equitable doctrine of part performance, clearly had no application whatever, but in the case before us the defence is that there was a complete partition of joint family properties. Io my opinion, the decision upon which Mr. Jayaswal relies has no application to the facts of the present case. The only other point that remains to be considered is whether there is a sufficient finding of the lower appellate court that the transaction between the parties was carried into effect. Mr. Jayaswal contends that the findings of the learned Judge in the court below do not warrant his conclusion that there was part performance sufficient to bring the case within the principles of Maddison v. Alderson [1883] A.C. 467. The learned Judge has referred to the oral evidence adduced by the defendants to show that the partition was carried into effect. It is quite true that he does not discuss that evidence and if there was nothing else in the judgment we would have to remand the case for a further consideration by the lower ?appellate court. But the learned Judge has also referred to unimpeachable documentary evidence in the case. Now the documentary evidence shows that whereas before the partition the joint family properties stood in the joint names of the brothers in the chowkidari registers, after the partition 40 bighas stood in the name of the defendants and 12 bighas stood in the name of the plaintiffs. Now it must be remembered that the case of the defendants is that the joint family properties of 52 bighas were partitioned between the two brothers in the proportion of 40 bighas and 12 bighas, 40 bighas having been allotted to the defendants in consideration of their undertaking to pay the joint family debts, the arrears of rent due in respect of the holdings and to maintain his mother and the widow of the third brother who had predeceased her and to bear the cost of her daughter''s marriage. The chowkidari registers show that subsequent to the partition 40 bighas stood in the name of the defendants whereas 12 bighas stood in the name of plaintiff. Mr. Jayaswai contends that there are no dates in the chowkidari registers which would establish that subsequent to the partition 40 bighas stood in the name of the defendant and 12 bighas in the name of the plaintiff. But that is the decision of the learned Judge and it is not open to us to consider these different items of evidence in this Court. The documentary evidence is undoubtedly consistent with the case of the defendant. Apart from the chowkidari registers, the learned Judge has referred to some documents which show that the defendant paid off the ancestral debt which was due by both the parties and also the arrears of rent. All the different documents completely support the case of the defendant that the agreement between the parties was carried into effect. In my opinion, we are entitled to give the defendant relief upon the equities that arise out of the actings of the parties though it is quite impossible to give him any relief upon the document itself. I have come to the conclusion that the decree which has been passed by the learned Judge is right, although I do not agree with some of the views which he has expressed in his judgment.

I would dismiss this appeal with costs.

Macpherson, J.

I agree.