MAREBOYINA NAGAMMA Vs. MADALA ALIAS KORANKI NAGAMMA

JUDGEMENT

(1.) THE defendant is the appellant. THE suit was filed to recover possession of a plot of land 52 cents in extent. THE plaintiff is the concubine of one Marobiyana Bhavanayakudu to whom this property belonged. He had a son by name Ankalu who died issueless in the year 1930 but left a widow who is the defendant. THE plaintiff's case is that after the death of the son Ankalu the property belonged absolutely to Bhavanayakuau and he executed a deed of gift, Ex. P. 1 to the plaintiff on 5-6-1936. It is under this document that the plaintiff claims title to the whole of the property. On the other hand the defendant who is the daughter-inlaw raised the contention that prior to the death of her husband in the year 1930, i.e., on 2-8-1929, there was a partition between the father and the son, in which the father got the western moiety and the son the eastern moiety; and so the defendant conceded that the plaintiff was entitled to the western moiety under the gift deed, Ex. P. 1 and claimed the eastern moiety to herself as her husband's share. In support of the defendant's case, she produced a document which purports to be a partition deed by which the property was divided in 1929 in the manner stated by her. But unfortunately, it was not a registered document, and so, for want of registration, both the lower courts rejected it as inadmissible in evidence. However, the learned District Munsif on other evidence, came to the conclusion that there was a division in status between the father and the son and passed a decree in favour of the plain-tiff for an undivided moiety of this property. On appeal, the learned Subordinate Judge agreed with the learned District Munsif in holding that the unregistered partition deed was inadmissible in evidence for want of registration but held that without the document the partition could not be proved and, therefore, decreed the plaintiff's suit in entirety; and it is against that decree that the defendant has preferred this appeal.

(2.) IT will be seen that the onus of proving the partition set up by the defendant is upon her and if she fails to make out that case then it will follow that the plaintiff will be entitled to succeed in respect of the entire property. The learned counsel for the defendant concedes that the partition deed which he relies on is inadmissible in evidence for want of registration in the sense that the particulars of the partition could not be gathered from such a document; but he contends nevertheless that the document could be looked into for the purpose of substantiating his case that there was a severance in status in the family. The learned District Munsif has held, relying act the evidence of two attestors and the writer who were examined as D. Ws. 2 to 4, that this document was genuine; and though the learned Subordinate Judge has not considered this question, I have examined the evidence myself and I am inclined to agree with the finding of the learned District Munsif. We must, therefore, proceed on the footing that the partition deed is genuine and both the father, and son executed it in token of the partition. That being so, the only question that has to be decided is whether that document could be looked into as furnishing evidence of a division in status in the family. In -- 'Saraswatamma v. Padayya', AIR 1923 Mad 297 (A), a Bench of this Court held that though such a document may be inadmissible in evidence to prove a partition, still it is admissible as evidence to prove an intention amongst all the members to become divided in status. At p. 299 it is observed :