SULEIMAN TIGG Vs. CYRIL TIGG

JUDGEMENT

(1.) This appeal arises out of an action for partition. The plaintiff is the appellant. The defence set up by the defendant was that there had been a partition of the properties. The question arose whether a certain deed which was unregistered could be taken in evidence in support of the defendant's case. The learned Judge in the Court below ignoring the document has relied upon other evidence including the Reoord of Rights in support of the defendant's case. Mr. Chattarji appearing on behalf of the plaintiff appellant relies upon Section 91, Evidence Act, which is as follows: When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document...no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter except the document itself, or secondary evidence....

(2.) I have left out from my statement the words in the Section which are not relevant to the point. It is obvious that the document not being registered was inadmissible, but in my opinion the argument of Mr. Chattarji that other evidence is not admissible is an argument which cannot be sustained.

(3.) Amongst other cases the learned advocate relied upon the case in Bhukhan Mian V/s. Radhika Kumari Devi A.I.R.1938. Pat. 479, a judgment of my learned brother and myself in which we considered the effect of an unregistered mortgage deed in an action for redemption, and pointed out that the document being inadmissible it was impossible to look at the document for any collateral purpose, as such a purpose would be insufficient for the plaintiff's case in that he had to prove the terms of the mortgage deed before he could establish his right of action. That case has no bearing upon the present case. The defendant here was not attempting to prove the terms of the contract within the meaning of Section 91, Evidence Act; he was merely trying to prove the factum of separation in order to defeat the plaintiff's action. What the teems of the separation or the division of the properties were was not a matter which was material for the purpose of the defendant's case and it was not a matter with which up to that stage the Court had any concern.