Nanni Bai And Others vs Gita Bai

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 177 of 1954

Decision Date: 14 April 1958

Coram: Bhuvneshwar P. Sinha, Syed Jaffer Imam

In the matter of Nanni Bai and others versus Gita Bai, decided on 14 April 1958, the Supreme Court of India examined an appeal that arose from a suit for possession on redemption of certain mortgages. The suit had been instituted before a Special Judge who exercised jurisdiction under the Sangli State Agriculturists Protection Act of 1936. The respondents, who were defendants in the suit, contended that the mortgaged lands had been sold at auction and subsequently purchased by their father, who later sold most of the properties to third parties more than twelve years before the suit was filed. On that basis, they argued that the action was barred by the limitation period. The trial court initially dismissed the suit. The High Court of Sangli then permitted the plaintiff to amend the plaint to include a claim for redemption and remanded the matter for further proceedings. After amendment, the trial court decreed the suit in part, holding that the claim concerning portions of the mortgaged properties was time‑barred. Both parties appealed to the High Court of Bombay, and the appeals were heard together. The High Court rejected the defendants’ appeal, accepted the plaintiff’s appeal, and held that Article 148, not Article 134, of the Indian Limitation Act of 1908 applied, thereby granting a decree in favour of the plaintiff for the entire suit. The Supreme Court, however, overruled the preliminary objection that the Special Judge lacked jurisdiction under the Sangli State Agriculturists Protection Act. It observed that the date‑line of 1915 fixed by the Act related only to reliefs that could be obtained by reopening closed transactions and did not preclude the Special Judge from granting other reliefs concerning transactions that had taken place before 1915. Furthermore, the Court held that the plaintiff was not bound to set aside the auction sale because she had not been substituted as the heir and legal representative of her deceased father, and no issue as to the true legal representative had been raised or decided. Consequently, the plaintiff could disregard the sale, and the suit was not barred under Article 12 of the Limitation Act. The judgment also referenced provisions of the Indian Registration Act of 1908, specifically sections 17 and 49, and cited the case of Malkarjun Bin Shidramappa Pasare versus Narhari Bin Shivappa (1900) L.R. 27 IA 216.

The Court referred to the case of Shivappa, reported in 1900 at L.R. 27 I.A. 216, and noted that it was doubted and distinguished. The Court explained that for Article 134 of the Limitation Act to apply to a suit for possession on redemption, the defendant must positively prove that the mortgagee or his successor‑in‑interest had transferred a greater interest than the mortgage allowed. In the present case the defendant did not make such a proof, and therefore Article 134 could not be invoked. The Court observed that the only other provision that could be relevant was Article 148 of the Limitation Act. Turning to the principles of the Mitakshara school of Hindu law, the Court described two modes of partition. The first mode is a severance of the joint status of the coparcenary by merely defining the shares of the co‑owners without allocating specific parcels of land. The second mode is a partition by allotting particular pieces of property, described by metes and bounds, according to the shares. The Court noted that when the second mode is reduced to writing it becomes compulsorily registrable under section 17(1)(b) of the Indian Registration Act, whereas the first mode does not require registration. Consequently, the Court held that the unregistered documents produced by the plaintiff, which were offered only to prove a partition of the first type, did not fall within the mischief contemplated in section 49 of the Indian Registration Act and were therefore admissible as evidence.

The judgment was issued in the Civil Appellate Jurisdiction as Civil Appeal No. 177 of 1954. The appeal was filed against the judgment and decree dated 9 October 1950 of the Bombay High Court, which itself had been rendered on the basis of the judgments and decrees dated 31 July 1946 of the Court of Special Tribunal, Mangalvedhe, in Special Suit No. 1322 of 1938. The record showed that counsel L. K. Jha, Rameshwar Nath, J. B. Dadachanji and S. N. Andley appeared for the appellant, while counsel K. R. Bengeri and K. R. Chaudhari represented the respondent. The judgment was delivered on 14 April 1958 by Justice Sinha. The Court described the matter as a defendants’ appeal that had been granted leave by the High Court of Judicature at Bombay from its own decision dated 9 October 1950. That decision involved two cross‑appeals from the Special Judge’s order of 31 July 1946 in Special Suit No. 1322 of 1938. The first cross‑appeal, First Appeal No. 361 of 1948 filed by the appellants, was dismissed, whereas the second cross‑appeal, First Appeal No. 363 of 1948 filed by the plaintiff, was allowed. The plaintiff‑respondent had also instituted a separate suit, No. 1894 of 1937, which was tried together with Special Suit No. 1322 of 1938; that earlier suit was dismissed by the High Court, and no appeal was filed against that dismissal. The suit giving rise to the present appeal, Special Suit No. 1322 of 1938, had been instituted under the provisions of the Sangli State Agriculturists Protection Act, which provided certain reliefs from indebtedness to agriculturists of that State, then situated outside the area formerly known as British India. The original prayer in that suit sought accounts concerning two mortgages, although in fact three mortgages existed, and also sought possession of the lands covered by those mortgages.

After the suit sought detailed accounts of the three mortgages and possession of the lands comprised in those mortgages, the first defendant filed a written statement on 6 January 1940. In that statement the defendant contested the suit on three principal grounds: first, that the plaintiff did not possess any title to the mortgaged properties because of preceding events; second, that the mortgaged properties had been sold at auction and purchased by the father of the defendant, thereby vesting full ownership in him; and third, that the defendant had subsequently sold most of those properties to other persons who now held them as owners in fee simple. Defendant No. 3, who also acted on behalf of the original mortgagee, filed a separate written statement in support of the first defendant’s contentions. Among the defendants who were transferees from the original mortgagees or their heirs, only Defendant No. 8 filed a written statement, dated 26 March 1940. Defendant No. 8’s statement largely echoed the first defendant’s pleading and added that he had purchased the bulk of the mortgaged lands after the mortgagees themselves had acquired full title, and that this purchase had occurred more than twelve years before the suit was instituted, rendering the plaintiff’s claim barred by limitation. The trial court consequently dismissed the suit by judgment dated 26 November 1941, awarding costs to the parties.

The plaintiff appealed the dismissal, and the Special Bench of the High Court of Sangli State, by judgment dated 13 June 1944, remanded the suit for a fresh trial and permitted the plaintiff to amend the plaint to include a claim for redemption. While the suit was pending after the remand, an application was filed in February 1945 seeking substitution of Defendant No. 2, who had died during the proceedings. The trial court refused the substitution on the ground that the suit had abated as against that deceased defendant. After the issues were reframed and the case reheard, the trial court rendered a new judgment and decree on 31 July 1946. It dismissed the suit as against Defendants 6 to 9, who held portions of the mortgaged lands by sale deeds dated 1919 and 1922, finding that more than twelve years had passed and that the limitations provision of Article 134 of the Limitation Act applied. However, the court decreed the suit in respect of the mortgaged portion identified as R.S. No. 1735, covering an area of sixteen acres and twenty‑one gunthas, against Defendant No. 3, and also decreed in respect of R.S. No. 334 against the heirs of Defendant No. 1. Each side was ordered to bear its own costs. Following that decision, the defendants lodged a first appeal (First Appeal No. 361 of 1948) and the plaintiff filed a crossing appeal (First Appeal No. 363 of 1948) in the High Court of Judicature at Bombay. Both appeals, together with two other cross‑appeals arising from the other suit, were heard conjointly. By its judgment and decree dated 9 October 1950, the High Court dismissed the defendants’ appeal No. 361 of 1948, allowed the plaintiff’s appeal No. 363 of 1948, awarded costs, and held that Article 148, not Article 134, of the Limitation Act applied to the suit.

The Court observed that Article 134 of the Limitation Act applied to the suit and therefore the suit was not barred by limitation. Consequently, the plaintiff’s suit was decreed in its entirety and the defendants filed the present appeal. Numerous questions of fact and law were raised by counsel for the appellants, but before addressing them the Court found it necessary to dispose of the preliminary point concerning the bar of the suit.

At the forefront of the appellants’ submissions, counsel contended that the suit lay outside the jurisdiction of the Special Court created under the Sangli State Agriculturists Protection Act of 1936. It was argued that the Act authorised the Special Court to take accounts and to reopen closed transactions only up to the year 1915, and that because the transactions forming the subject‑matter of the suit occurred in the years 1898, 1900 and 1901, the Special Court could not consider those transactions nor grant any relief to the agriculturist‑plaintiff. The Court found no substance in this contention. The Sangli Act had indeed selected the year 1915 as a dateline beyond which the Court was not competent to grant relief to agriculturists by reopening closed transactions. However, this limitation did not render the Court incompetent to grant any other relief in respect of transactions dated prior to 1915. If the legislature had intended to restrict the Court’s jurisdiction to transactions of 1915 and thereafter, it could have done so expressly, but the statute contains no such limiting words. The operative portion of the statute therefore permitted the Special Court to entertain a suit for redemption, even though it could not reopen the transactions even if that issue had been raised. Moreover, no question of reopening closed transactions arose from the pleadings. Accordingly, the alleged limitation was wholly inapplicable to the plaintiff. The Court noted that no plea concerning lack of jurisdiction of the trial court had been raised in the pleadings or issues before the lower courts; this ground was raised for the first time in the present Court. The preliminary objection to the trial court’s jurisdiction was consequently overruled.

The Court next addressed the appellants’ contention that the suit was barred by the one‑year limitation prescribed in Article 12 of the Limitation Act. The point arose because the properties sought to be redeemed had been mortgaged successively under three bonds dated 1898,

In the present proceedings the plaintiff’s father, identified as Gundi, had executed mortgage bonds in the years 1900 and 1901, omitting any reference to his brothers. Subsequently, a decree for money dated 1903 was entered in favour of a third‑party creditor who was not before the Court. The decree named Gundi as the original defendant; after his death, his brother Sadashiv stepped into his place, claiming to act as Gundi’s heir and legal representative. Pursuant to the decree, the mortgaged lands were sold at public auction, and the successful purchaser was Fulchand, the son of the first defendant, as shown by the sale certificate exhibited as Exhibit D‑56 and dated 31 October 1907. The mortgagee, relying on that auction purchase, argued that the sale must be upheld unless set aside, because it would bind both the deceased Gundi and his successor‑in‑interest, namely the plaintiff. The High Court, however, held that the limitation provision of Article 12 of the Limitation Act could not defeat the plaintiff’s claim, since neither the plaintiff nor her father had been a party to the sale. The Court further observed that if Gundi himself had been a party to the execution proceedings, the sale would have bound his estate and any successor‑in‑interest. Yet the record indicated that Gundi had been substituted by his brother Sadashiv in those proceedings. Consequently, the Court concluded that if Sadashiv could not lawfully represent Gundi’s estate, the sale could not affect the plaintiff’s rights.

The mortgagee’s counsel countered this view by relying on a Privy Council decision in Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa (1900) L.B. 27 1, A. 216, contending that even where an incorrect person is substituted as the judgment‑debtor’s legal representative, the resulting sale still binds the debtor’s estate as if the proper representative had been before the court. The mortgagee suggested that, assuming the Privy Council’s ruling is correct and not undermined by any ex‑parte infirmities, the same principle should apply to the present case. The Court, however, distinguished the two situations. In the Malkarjun case, the executing court had been asked to determine the true legal representative of the judgment‑debtor; after a judicial determination, the court recorded the person it adjudged to be the rightful representative and proceeded with the sale on that basis. The Privy Council held that although the lower court’s decision on the representative was erroneous, it remained effective and bound the estate unless set aside. In the present matter, no such adjudication of the proper representative occurred. The evidence presented was scant, showing only that Gundi had died and had been replaced by Sadashiv without any controversy being raised before the court as to the legitimacy of that substitution. Accordingly, the Court found that the Privy Council precedent did not assist the mortgagee, and the plaintiff, as Gundi’s daughter, was not bound by the execution proceedings and could lawfully assume that the sale did not affect her inheritance.

From the material presented, it was evident that Gundi, who had been the original defendant, had died and his brother Sadashiv had been substituted for him without any dispute. No request had been made to the court to resolve any controversy between Sadashiv and the genuine legal representative of the deceased Gundi. In the execution proceedings the property was sold in the name of Sadashiv, who had become the substituted judgment‑debtor. The sale was a money‑sale and it conveyed only the title and interest of Sadashiv, if it had any legal effect at all. Consequently, the precedent set in Malkarjun’s case was of no assistance to the appellants, because that case involved a determination of the true legal representative, which was absent here. The plaintiff, who was Gundi’s daughter, was not affected by the aforementioned sale; therefore she was not required to sue for setting aside the sale. She was entitled, as she had done, to disregard those execution proceedings and to proceed on the legally justified assumption that the sale had not impaired her inheritance. Accordingly, the suit was not barred by Article 12 of the Limitation Act.

The defendants further argued that, even if Article 12 did not bar the suit, the suit was nevertheless barred by Article 134 of the Limitation Act. Article 134 requires a plaintiff who seeks possession of immovable property that has been mortgaged and subsequently transferred by the mortgagee for valuable consideration to bring an action within twelve years from the date the transfer becomes known to the plaintiff. The plaintiffs, on the other hand, contended that the ordinary limitation period of sixty years under Article 148 of the Limitation Act applied. The defendants faced an initial difficulty because the sale deeds on which they relied to invoke the bar under Article 134 had not been produced in the record, preventing the court from ascertaining the precise terms of those deeds. The appellants attempted to overcome this difficulty by pointing to the statements made in paragraph 8 of the plaint, but those statements were merely bare assertions explaining why parties other than the original mortgagee were impleaded. Paragraph 8 did not specifically allege the extent of the interest conveyed by the sale deeds or the other transfers mentioned therein. Consequently, the court could not determine the true factual position. The sale deeds themselves were the primary evidence of the interest transferred; if the registered documents were unavailable, certified copies could be admitted as secondary evidence, yet the pleadings had not laid a foundation for admitting such secondary evidence, which is ordinarily considered weak compared to the original registered documents. Article 134 of the Limitation Act presumes a sale by the mortgagee that exceeds his interest, and the legislature intended that the possession of such transferees be treated as wrongful and therefore adverse to the mortgagor if the mortgagor is aware of the transaction. Hence, the longer sixty‑year limitation for redemption is reduced to the shorter twelve‑year period for wrongful possession when the mortgagee transfers a larger interest than he was entitled to. To invoke Article 134, the defendant must positively prove that the mortgagee or his successor transferred a larger interest than justified by the mortgage; absent such proof, the shorter period under Article 134 does not apply to a possession suit after redemption.

The Court explained that under Article 134 of the Limitation Act, the possession of persons to whom a mortgagee has transferred property is deemed wrongful and therefore adverse to the mortgagor if the mortgagor is aware of such a transfer. Consequently, the general limitation period of sixty years for redemption of a mortgaged property by the mortgagee or any successor‑in‑interest is reduced to a twelve‑year period of wrongful possession when the mortgagee transfers an interest that exceeds the mortgagee’s original entitlement. To invoke the operation of Article 134, the defendant must positively demonstrate that the mortgagee or his successor‑in‑interest transferred a larger interest than the mortgage authorized. In the absence of such proof, the shorter twelve‑year limitation cannot be applied to a suit for possession after redemption. The parties argued extensively about which side bore the burden of establishing the commencement date of the limitation under Article 134. Counsel for the defendants‑appellants contended that the knowledge of the plaintiff regarding the transfer was a matter within the plaintiff’s special knowledge, and therefore the plaint should disclose the date on which the plaintiff became aware of the transfer. Conversely, counsel for the plaintiff‑respondent argued that the defendants were required to plead and prove the facts, including the date of the plaintiff’s knowledge, that would trigger the limitation bar under Article 134. The Court held that, because it was not satisfied that Article 134 was applicable to the present facts, it was unnecessary to decide the dispute over the allocation of the evidential burden. The Court then observed that if Articles 12 and 134 of the Limitation Act do not prevent the plaintiff from recovering possession, the only remaining provision applicable to the suit is Article 148, and that both parties agreed that, on the basis of Article 148, the suit was timely. Before addressing the factual matrix, the Court turned to another defence raised by the appellants, namely that the suit was defective because of the absence of the heirs of the second defendant. The trial court’s order dated 27 March 1946, issued while the suit was pending after remand, indicated that the second defendant had died on 26 April 1943, that is, during the pendency of an appeal before the Bombay High Court. The plaintiff, who was then the appellant, had failed to introduce the legal representatives of the deceased defendant at that time. Later, the plaintiff sought to substitute the heirs of the second defendant on the record, but the trial court upheld the objection raised by the defendants and refused to permit such substitution. Accordingly, the Court noted that the appeal then pending before the High Court had effectively abated with respect to defendant No. 2, and

In the Court’s view, the order of remand that was issued after the death of the second defendant could not affect his heirs because no legal representatives of the deceased had been brought before the court. Consequently, it was argued that the entire suit should be considered to have abated, since, without the heirs of the deceased defendant No 2, the suit was alleged to be imperfectly constituted under Order 34, Rule 1 of the Code of Civil Procedure. That rule requires that every person having an interest either in the mortgage‑security or in the right of redemption be joined as a party. The original mortgagee under the three mortgages was Kasturchand Kaniram. Defendant No 1 has contested the suit by filing a separate written statement, claiming to be the successor‑in‑interest of the original mortgagee. The pleadings do not show that the second defendant was a joint mortgagee with the first defendant or with any of the other defendants. The only reference to the second defendant in paragraph 8 of the plaint is that the land identified as R S No 1735 passed to the share of defendant No 2, while defendant No 3 looks after all transactions of defendant No 2 and the shop running under the name “Kaniram Kasturchand” passed to the share of defendant No 3. Thus, the case does not involve a joint interest between the first defendant and the second defendant, who is not represented on the record. If the second defendant possessed any distinct interest, the plaint confines it to R S No 1735. In paragraph 9 of the written statement filed on behalf of the third defendant, it is asserted that the mortgaged portion of R S No 1735, which the plaint describes as the property of the second defendant, was actually in the possession of the third defendant as its owner. The second defendant made no written statement challenging that claim or asserting any interest in that plot or any other part of the mortgaged property. He remained ex parte throughout, apparently because he had no interest in the property to be redeemed. In any event, his heirs are not parties to this suit, and any determination in this suit will not bind them. Even if the second defendant had held an interest at an earlier date, it appears that he no longer has any subsisting interest in any portion of the mortgaged property.

The parties also contended that the original defendant No 8 had died and that, in his place, defendants labelled 8a through 8g were substituted as his legal representatives. 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 actually served with process, while the others—namely 8a, 8b, 8c and 8d—were not served. This fact formed part of the argument that the suit for redemption was defective in the absence of all necessary parties.

These persons were not served. On the basis of this fact, the opposite party argued that the suit for redemption was defective because it lacked all of the parties who were legally required to be present. At one stage of the arguments, it was further suggested that the suit had abated with respect to defendant number 8. The High Court addressed that suggestion by observing that Order XXII, Rule 4 of the Code of Civil Procedure permits the pleading of only a portion of the legal representatives of a deceased party, relying on the Bombay High Court decision in Mulchand v. Jairamdas. However, the present facts did not permit the application of that rule. All of the individuals who were claimed to be the legal representatives of the deceased defendant number 8 had already been substituted on the record, thereby satisfying the requirements of Order XXII. Consequently, the condition for substitution under that order had been fulfilled.

If, after substitution, some of the heirs remain unserved, the issue that arises is not one of abatement of the suit or of the appeal, but rather whether the suit or the appeal remains competent in their absence. The record does not show that those unserved heirs were essential parties who shared a joint interest in any portion of the mortgaged property with the parties already on the docket. The circumstances leading to their non‑service, or any order to strike them from the record, are not evident from the printed materials before the Court.

Defendant number 8e, who is the brother of the original defendant number 8, filed a written statement asserting that he and his vendor, defendant number 7, had possessed the land for more than twelve years and therefore the suit was barred by limitation, as referenced in the 1934 decision (37 Bombay Law Reports 288). None of the other substituted defendants entered the suit or the appeal to challenge defendant 8e’s claim that he possessed a specific portion of the property—namely, six acres and thirty‑two gunthas out of revenue survey number 242 (old survey number 233). Thus, there was no question of abatement of either the suit or the appeal.

The only remaining consideration, which may or may not prove material upon a thorough investigation, is whether any decree issued in this case would bind those parties who were not served. It is plausible that those unserved individuals have no interest in the plot that is the subject of redemption. Based on these findings, the Court concluded that the preliminary objections raised by the defendants, which sought to bar the suit, must be overruled. Accordingly, the suit cannot be deemed incompetent on the ground that certain heirs were not served.

It was observed that the heirs of defendant number two had not been entered on the record. After disposing of those specific pleadings that sought to bar the suit, the Court turned its attention to the matters that concerned the factual issues in the dispute. The parties argued that the plaintiff, who was acknowledged to be the daughter of Gundi, had not proved her title to the mortgaged lands. To examine that allegation, the Court set out the essential facts relating to the three mortgage deeds that were the subject of the case. The first mortgage was dated 4 June 1898 and was made in favour of Kasturchand Kaniram. It had been executed by Gundi, the son of Appa, for a loan of seven hundred rupees. Under that deed Gundi mortgaged seven survey numbers covering a total area of forty‑three acres and thirty‑eight gunthas. The mortgage was granted with possession for a period of four years, and Gundi’s two brothers, Sadashiv and Rama, stood as sureties for the repayment of the loan, which was expressly the personal liability of Gundi under the terms of the instrument. The land that was mortgaged was, however, acknowledged to be the ancestral property of the three brothers taken together. The second mortgage was executed between the same mortgagor and mortgagee with respect to the same parcel of land and bore the date 25 May 1900. That deed secured an additional advance of three hundred rupees to the mortgagor, and again the repayment was guaranteed by the two brothers, Sadashiv and Rama, as sureties. The third mortgage‑bond involved a further advance of two hundred rupees to Gundi, with his brothers once more acting as sureties. From these documents it appeared that all three mortgages involved the same parties – Gundi as mortgagor and Kasturchand Kaniram as mortgagee – and that the two brothers consistently joined the mortgages in the capacity of sureties, while the property that was offered as security belonged collectively to the three brothers. The total amount advanced under the three mortgages amounted to one thousand two hundred rupees, and the entire sum had been paid to the principal debtor, Gundi. It was further noted that, of the three brothers, Rama died first, and thereafter Gundi died sometime in 1903, leaving behind two daughters – the plaintiff in this suit and defendant number thirteen. The plaintiff contended that their common ancestor, Appa, during his lifetime had carried out a partition among his three sons – Gundi, Sadashiv and Rama – allocating to each a definite portion of his lands and setting aside a share for the maintenance of his wife. The documents that purported to record that partition were exhibited as P‑43, P‑44, P‑45 and P‑46, each dated either 31 August or 1 September 1892, and they appeared to constitute parts of a single transaction. Those exhibits were formal instruments that detailed the lands allotted to each of the three brothers and to their mother for her maintenance. A common recital in each document stated that the maker, Appa, had three sons – Gundi, Sadashiv and Rama – listed in order of seniority, and that they could not jointly manage the property. The documents further recited that, having obtained the consent of the parties, Appa had effected a separation, dividing the estate, the land and the assets in accordance with each son’s one‑third share, and then proceeded to list the specific properties allotted to each son individually.

The plaintiff asserted that ever since the documents dated 1892 were executed, the three branches of the family had become distinct in estate, even if they were not divided in every respect. According to the plaintiff, when Raina died, Gundi and his brother Sadashiv succeeded to his one‑third share in equal halves. Thus, after the deaths of their mother and their brother, the two surviving brothers each owned one‑half of the ancestral property that had been left by Appa, who appears to have died shortly after the alleged partition. The plaintiff further contended that Gundi was the principal mortgagor in each of the three mortgage transactions mentioned, while his two brothers participated only as sureties, providing additional security for the mortgagee. The defendants‑appellants, on the other hand, argued that the 1892 documents did not constitute an actual partition by metes and bounds. They said the documents merely reflected an arrangement intended to facilitate more efficient and peaceful management of the family property. The defendants also maintained that, even if the documents were claimed to have the effect of partition deeds, they were inadmissible because they were not registered as required by the Registration Act. The lower courts concurred with the defendants on this point, holding that the 1892 documents could not be admitted as regular deeds of partition in view of the statutory registration requirements.

Nevertheless, the lower courts noted that the same transactions were being used for a collateral purpose: to demonstrate that, from that time onward, the three brothers had become separate in estate and each intended to live as an independent member holding a one‑third share of the paternal estate. To support this inference, the appellants relied on the subsequent conduct of the brothers after 1892, as shown by the three mortgage bonds and a sale deed recorded as Exhibit D‑54, dated 17 June 1909. In that sale deed, Sadashiv purported to sell to Fulchand Kasturchand, the son of the original mortgagee, almost the entire mortgaged property for a sum of Rs. 1,500. The recitals in the deed suggested that the brothers were joint in estate and that the sale was intended to discharge personal loans taken by Gundi and Rama between 1900 and 1903, together with loans incurred by the vendor. The deed concluded with a significant declaration concerning the status of the alleged joint family, stating that the seller, by selling his right, title and interest, and as the male heir by survivorship, retained no further right, nor did his heirs or executors, to the lands sold.

It was further argued that even persons who were not members of the family regarded the brothers as holding the estate jointly, as demonstrated by the execution proceedings and the sale certificates dated between 1903 and 1907. Those documents showed that Sadashiv had been substituted as the sole heir and the legal representative of the defendant Gundi in a money suit, which led to the auction‑sale mentioned above that took place in 1907. The contention was that if the transaction recorded in 1892 were admissible as evidence for the purpose for which the lower courts had used it – namely, to establish a separation of estate – then there could be no doubt that the three brothers had become separate owners. The later recitals in those documents, which claimed that certain portions of the ancestral property had been allocated individually to the three brothers by a partition deed executed by their father during his lifetime and that such deed was unregistered, were held to be inadmissible for proving a partition. Nevertheless, the plaintiff’s case did not rely on proof of a physical partition demarcated by metes and bounds. In the absence of any ambiguity, later transactions would be irrelevant except to indicate a possible reunion of the brothers, a matter that none of the parties had raised. The appellants, however, maintained that the exhibits from the P series were not admissible even for the limited purpose of demonstrating a separation of estate. Consequently, the question arose as to 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,” as contemplated by section 17(1)(b) of the Registration Act. No authority was cited to support this contention. The Court explained that a partition in the Mitakshara sense may refer merely to the severance of the joint status of members of a coparcenary, meaning that what was once a joint title becomes a divided title even though there has been no physical division of the property by metes and bounds. Partition may also be understood in the ordinary sense as a division among co‑sharers who are not members of a Hindu coparcenary. For the former type of partition, the agreement of all family members is not required, as it depends on the individual’s volition. If a coparcener unequivocally expresses his intention to separate from the rest of the family, that declaration effects a partition as far as he is concerned, converting a joint tenancy into a tenancy in common. In contrast, when partition involves the allocation of specific parcels of property to individual coparceners, the consent of all coparceners is essential. Such a partition can be made orally, but if the parties document the transaction in a formal instrument intended to serve as evidence of the partition, it then falls within the scope of section 17(1)(b) of the Registration Act.

The Court observed that a document which serves as evidence of a partition and specifically declares that a particular coparcener has exclusive title to a parcel of land is covered by the purpose of section 17 (1) (b), the relevant portion of which had been quoted earlier. In contrast, a partition that merely defines the shares of the coparceners without allocating any specific immovable property does not refer to immovable property at all. Such a transaction only changes the status of the member or members who separate themselves from the rest of the coparcenary. The transformation of a person from a joint member of a coparcenary to a separated member possessing a defined share in the ancestral property may be effected either by oral declaration or by a written document. However, if the written document does not evidence a partition by metes and bounds—that is, it does not constitute a partition in the latter sense—then it does not fall within the scope of section 17 (1) (b). As long as no partition in that sense has occurred, the interest of the separated member continues to extend over the entire joint property just as before. Accordingly, such a transaction does not purport or operate to do any of the acts mentioned in that section. Consequently, where the documents under consideration merely evidence a partition in the former sense, they are not required to be compulsorily registered under section 17 and, therefore, they do not fall within the mischief of section 49, which bars the admission of any document “affecting immovable property.” The Court thus held that those documents were correctly admitted into evidence for the limited purpose of proving separation.

The Court then addressed the argument that, if the documents dating from 1892 were admissible to demonstrate separation among the three brothers, then, upon the death of one brother, Rama, and the death of their mother, the entire ancestral estate—including the mortgaged lands—should have vested equally in the two surviving brothers. It was noted that, by the auction‑purchase in 1906 (document D‑57‑D) and by the sale deed of 1909 (exhibit D‑54), the half‑share of Sadashiv in the mortgaged property had been purchased by Fulchand. Accordingly, the plaintiff could claim only the other half‑share belonging to her father, Gundi. The Court found that this contention could not be sustained because a proper construction of the three mortgage bonds, together with the plaintiff’s own pleadings, showed that the mortgage covered the entire ancestral properties and not merely Gundi’s share. Therefore, the appeal was allowed to the extent of the half‑share that rightfully belonged to Sadashiv, and the decree for possession after redemption was limited to the other half that belonged to the plaintiff’s father. In the result, the appeal was allowed in part, and each party was ordered to bear its own costs throughout.