RAJANI MOHAN SAHA Vs. SAMBHU NATH SAHA

JUDGEMENT

(1.) Plaintiffs sue for partition of a plot of land described as "Bairagi Bari" alleging that they have purchased four-fifths share of the tenancy right and defendants have purchased the remaining one-fifth share. Plaintiffs and defendants have small shares in the landlord's interest, the entire 16 annas of that interest being held by a large number of persons. The defence is that plaintiffs have no title except by virtue of the superior interest and that the property falls within the joint estate only up to a certain extent, the rest being in another estate. Plaintiffs won in the first Court, but they lost in the Court of appeal below. They now come in second appeal.

(2.) In this appeal the first point is whether plaintiffs have proved their tenancy right to the land in suit. Plaintiffs base their right upon three conveyances, namely: (1) Ex. 1 which is an unregistered deed bearing date 4 Sravan 1308 in respect of a one-fifth share of the tenancy right for a sum below Rs. 100. (2) Ex. 1 (c) an unregistered deed of conveyance dated 2nd Aswin 1308 in respect of a two-fifths share for a sum above Rs. 100, the documents being executed by two females on behalf of their minor sons. The latter confirmed the transaction in 1328 by two registered instruments, Ex. 1 (a) and Ex. 1 (b). (3) Ex. 1 (d) an unregistered deed of conveyance dated 7 Aughrayan, 1310, in respect of a one-fifth share of the tenancy for a sum above Rs. 100. Defendants get their title from a registered kabala Ex. 1 (e) dated 8 Baisak, 1310, in respect of a one-fifth share of the tenancy right. It is admitted that the original tenants were five brothers from whom plaintiffs and defendants derived their title by purchase as above. The difficulty in the way of the plaintiffs is that all these three deeds of sale were unregistered. The learned District Judge took the view that, as regards the first acquisition in Sravan 1308, the transaction being for a consideration of less than Rs. 100, it did not require to be proved by registered instruments and that there had been proof of delivery of possession as required by Section 54, T.P. Act. He, therefore, accepted the plaintiffs case that they came into the possession of a part of the disputed land in Sravan 1308. The learned District Judge further thought that the kabala Ex. 1 was relevant for the strictly collateral purpose of the proving in what capacity the entry of possession was made by the plaintiffs and he found that as regards this one-fifth share acquired in Sravan 1308 the plaintiffs had shown that they were tenants. But, as regards the other two kabalas, the learned District Judge thought that they could not be used at all in favour of the plaintiffs, and so he thought that they were in possession in their capacity as cosharer landlords.

(3.) In this view he came to the conclusion that the plaintiffs were not entitled to partition without joining the other co-sharer landlords. The learned advocate for the appellants has contended that the learned District Judge was wrong in not considering that the kabalas Ex. 1 (c) and Ex. 1 (d) could also be admitted for the collateral purpose of proving the character of the possession of the plaintiffs as tenants. I think this contention is correct and it is supported by the decision of their Lordships of the Judicial Committee in the case of Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44. That was a case of a gift and the fact that in that case there was no deed of gift at all makes to my mind no essential difference. The point is that in that case although the gift was held to be invalid, because it was not made by a registered deed as required by Section 123, T. P. Act, and the recitals in a partition could not be used as evidence of gift, it was held that those recitals might be referred to as explaining the nature and character of the possession of the donee. A similar view was taken in the case of Jagannath Mararwari V/s. Sm. Chahdui Bibi A.I.R. 1921 Cal. 647. In that ease also the fact that a deed of gift was not necessary according to law makes no difference, the point being that an unregistered deed of gift was held to be admissible in evidence for the purpose of proving the character of the possession of the donee. Now it has been found by the trial Court that the kabalas were genuine documents for consideration and that they were followed by delivery of possession to the plaintiffs. The learned District Judge has not reversed these findings, on the contrary he writes that:. it is admitted that both the parties are in possession of the disputed land.