NARMADABAI TULSIRAM SHET AGARWAL Vs. RUPSING BHILA

JUDGEMENT

(1.) These are appeals from the decision of the First Class Subordinate Judge, Jalgaon, in two suits of 1931. In both of them the plaintiff sought a declaration of his exclusive title over the lands mentioned in the plaints. Defendant No. 1 in both the suits is the plaintiff's brother and defendants No. 2 in the two suits are two decree-holders who had in execution proceedings got attached and put up to sale the interest of defendant No. 1 in the plaint lands.

(2.) The learned Subordinate Judge raised several issues and gave a declaration to the plaintiff that he is the sole owner of the lands in suit and that defendant No. 1 has no interest therein whatsoever. Of the issues raised by the learned Subordinate Judge only one has been argued before us, viz. whether plaintiff proves that he is the exclusive owner of the lands in suit. On this point the plaintiff relied on a receipt, exhibit 37, dated January 3, 1913, purporting to have been passed by defendant No. 1 in favour of the plaintiff's father Rayabhan. The learned Subordinate Judge held, in our opinion correctly, that this document, which sets out the details of the alleged partition between Rayabhan and defendant No. 1, was inadmissible in evidence in view of Sections 17 and 49 of the Indian Registration Act to prove the terms of the partition. He held, again correctly in our opinion, that it was admissible in evidence to prove the fact of partition in the legal sense of the term, and that this document being inadmissible to prove the terms of the partition, it was not open to the plaintiff to give any oral evidence as regards the terms of the partition. The learned advocate for the appellant has admitted that the position as stated above is correct in law. Mr. Dixit for the appellant has argued that this position must lead to the inference that the plaintiff and defendant No. 1 and his second brother Tukaram were tenants-in-common with their interests only separated.

(3.) The evidence as to the fact of partition has been discussed at length by the learned Subordinate Judge. Besides exhibit 37 there is oral evidence to show that after 1913 defendant No. 1 never participated in the enjoyment of the plaint lands, that he lived separate from the plaintiff and Tukaram at Vardi, that he purchased a land at Vardi for Rs. 3,200, that he subsequently sold the land four or five years later and that he had been taking loans from defendant No. 2 in the two suits. The conclusion that has been drawn from all this by the learned Subordinate Judge is that defendant No. 1 became divided in status from the family in 1913, and we see no reason to take a different view on this point.