AYITHAM CHINNA SURYA RAO Vs. MADDALA SURYACHANDRA RAO

JUDGEMENT

(1.) The minor defendant in this case with his mother as guardian, and his two uncles, one of whom is Narasimhamurthi, P.W. No. 3 effected a partition of their movable property in October 1930. As one of the terms of that partition, and in order to equalise the shares of the three members of the family, it: was arranged that P.W. No. 3 should pay off all the family debts and that the other two should execute promissory notes, in his favour for Rs. 1,500 and Rs. 700, respectively. Accordingly defendant's mother executed the suit promissory note in favour of P.W. No. 3 for Rs. 700 on the same day. This note was transferred by P.W. No. 3 to the plaintiff, who has now sued the defendant upon it.

(2.) The main defence was that the minor defendant is not liable upon the pro note. In order to meet that defence, it was necessary for plaintiff to prove that the, promissory note was executed for necessity. To prove this, he called P.W. No. 3 who spoke to the terms of the partition. In cross examination he admitted that there were unregistered partition lists in existence The lower Court held that these lists were inadmissible in evidence and consequently that there was no valid partition, and no valid debt binding upon the defendant. Against the decision plaintiff has filed the present Civil Revision Petition.

(3.) I am unable to agree with the language in which the lower Court has formulated its decision. It is well-settled that there can be a valid partition without any document at all see Ram Gopal V/s. Tulsi Ram . But the real question is whether plaintiff is debarred from proving the terms of this partition once the existence of the unregistered partition lists is established. If he cannot prove those terms, he cannot prove the necessity for the defendant's guardian to execute the pro-note and he must fail. Not without reluctance I have come to the conclusion that the lower Court's decision is right.