Sarjoo Prasad, J.

( 1. ) This appeal has been presented by the plaintiffs in a suit for partition in which the plaintiffs claimed partition of certain raiyati lands comprised in Khatas Nos. 109, 177 and 178 in village Jamri, pargana Pahra, District Gaya.

( 2. ) The facts giving rise to this appeal may be indicated as follows : One Jiyan Singh had five sons. The plaintiffs are sons of Ambica Singh, one of the sons of the said Jiyan Singh, whereas defendant 1, Girdhari, is another son of Jiyan, and defendants 2 and 3 are the sons of defendant 1. Defendants 4 to 11 are the descendants of the other three sons of Jiyan. It is the admitted case of both parties that the other sons of Jiyan became separate during the lifetime of their father, but Ambica, the plaintiffs father, and defendant l continued to be members of the joint family governed by the Mitakshara school of Hindu law. The plaintiffs case is that subsequently the plaintiffs father, Ambica, also became separate from the defendants but the disputed lands continued to be jointly in their possession, and, consequently, they were entitled to a partition of those lands. The plaintiffs further stated that these lands were the exclusive property of the plaintiffs and defendants 1 to 3 with which defendants 4 to 11, the descendants of the other sons of Jiyan, had no connection whatsoever. It may be stated here that Khatas Nos. 109 and 177 have very small areas but Khata No. 178 comprises the largest area and consists of several plots.

( 3. ) Defendant 1 who filed a separate written statement denied that the lands belonged to him and Ambica jointly. According to him, the lands were partitioned between him and the father of the plaintiffs in 1325F., shortly after the survey. He further stated that his father Jiyan who remained joint with him and his brother Ambica died, and on his death defendants 4 to 11 also contributed to the expenses of his sradh, and in consideration thereof both Ambica and himself agreed to give to them Plots Nos. 1407, 1438, 1600 and 1646 of Khata No. 178. These plots, therefore, according to him, belong to defendants 4 to 11 with which neither defendants 1 to 3 nor the plaintiffs have any concern. Defendants 4 to 11 filed a separate written statement in which they claimed that the lands of the four Khatas jointly belonged to all the parties, and that they were wrongly recorded in the survey only in the names of Ambica and Girdhari. They claimed that the Khatas were privately partitioned amongst the parties in the year 1330F., and as a result of this partition they got the lands of Khatas Nos. 178 and 109 as described in their Written statement. Their written statement shows that they claimed plots Nos. 1438, 1646 and 1407 appertaining to Khata No. 178 as a result of this partition along with two other plots which did not include plot No. 1600. At the trial, however, it appears, defendants 4 to 11 gave up their case in the written statement and accepted the case of defendant 1 to the effect that the lands of the three Khatas in dispute belonged actually to the plaintiffs and defendants l to 3 but defendants 4 to 11 were subsequently allotted the four plots of Khata No. 178 as stated in the written statement of defendant 1. They further accepted the case of defendant 1 that the lands of the disputed Khatas had been already partitioned between the plaintiffs and defendants 1 to 3.

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4. ) It may be also stated that the case of defendant 1 was that at the time of the alleged partition in 1325F., two schedules were prepared by way of memoranda in respect of the lands allotted to each party, namely, the plaintiffs father Ambica and defendant 1. On this memoranda, the arbitrators put their signatures and handed over one copy to this defendant and another copy to the plaintiffs, and that since the date of partition both the parties entered into separate possession and occupation of the lands allotted respectively to them and have been appropriating the produce thereof. He accordingly contended that the plaintiffs suit for partition in respect of the disputed lands was not maintainable.

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5. ) The learned Subordinate Judge who tried the case held: (l) that the branches of the plaintiffs and defendants 1 to 3 had before the survey separated from the other sons of Jiyan Singh, and that the disputed Khatas came to be allotted to the branches of the plaintiffs and defendants 1 to 3 only ; (2) that subsequently in 1333F. on the death of the widow of Jiyan Singh, Ambica, the father of the plaintiffs, and defendant 1 allotted four of the plots of Khata No. 178, as mentioned in the written statement of defendants 1 to 3, to defendants 4 to 11 ; and (3) that ever since 1325F. the plaintiffs or their father and defendants 1 to 3 have been in separate possession of the plots respectively allotted to them on partition of the disputed lands. He accordingly found that there had been a partition between the plaintiffs and defendants 1 to 3 as far back as the year 1325F., and that the parties were in separate-possession of the lands allotted to them on partition, and accordingly he dismissed the plaintiffs suit with costs.

( 6. ) On appeal, the Additional District Judge of Gaya affirmed the decision of the learned Subordinate Judge. He held :

"In view of the important rent receipts and the facts and circumstances I agree with the learned Subordinate Judge and accept the defendants case that the lands were already partitioned and fractional parts out of them as alleged have been given to the three brothers and their descendants."

He, therefore, dismissed the appeal, and it is against this concurrent decision of the Courts below that the present second appeal is directed.

( 7. ) Mr. Shambhu Prasad Singh who argued the appeal on behalf of the appellants has presented three points for our consideration: (1) that Ex. C. series were inadmissible in evidence and the decision of the Courts below is vitiated because it depends very largely upon a consideration of these materials; (2) that Ex. C. series which were intended to prove partition in 1325F and the allotment of four of the plots of khata 178 to defendants 4 to 11 being inadmissible under Sections 91 and 92, Evidence Act, no other evidence could be given to prove the said partition and allotments: and (3) that in any case plot No. 1600 not having been claimed in the written statement of defendants 4 to 11, the Courts below should have decreed partition of this plot when admittedly the disputed khatas originally belonged exclusively to the plaintiffs and defendants 1 to 3 alone, defendants 4 to 11 having no Interest therein.

( 8. ) I shall deal with the first two points together they being correlated (sic). To appreciate the argument of the learned Counsel, it may be useful to state the nature of the impugned documents. It may be observed at the outset that their inadmissibility was never raised before either of the two Courts below. It may also be observed that the learned counsel bas not placed the documents before us or any translated copy thereof to enable us to decide for ourselves from the contents of the documents in question as to whether they are or they are not admissible. We have, therefore, to gather the nature of the documents from the judgments under appeal. The impugned documents are Ex. C. to C-6. The Courts below have relied upon these exhibits as genuine, and there is no doubt in my mind that the documents are genuine, and the learned counsel for the appellants has not disputed the fact of their genuineness, Ex. C. is said to have been prepared at the time of the partition of the lands in 1325F between Girdhari and the father of the plaintiffs, Ambica Singh, Exs. C-1 to C-3 are said to have been prepared and given to the respective three brothers, the other sons of Jiyan and their descendants signed by Girdhari Singh when subsequently the four plots wore given to them, whereas Exs. C-4 to C-6 are said to have been prepared and given to the respective brothers, the ancestors of defendants 4 to 11, signed by the plaintiffs father, Ambica Singh, in respect of the aforesaid plots allotted to them out of khata 178. These Exs. C-1 to C-6 purport to be sale-deeds conveying the interest in four of the plots in khata 178 to defendants 4 to

11. All these documents were unstamped and unregistered. We are informed that these documents were impounded and stamp duty in respect of there documents have already been realised; therefore, these documents cannot be said to be defective or inadmissible under the Stamp Act.

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9. ) The appellants argument in regard to Ex. C is that Ex. C being a partition deed to show different allotments to the branches of the plaintiffs and defendants 1 to 3 should have been duly registered inasmuch as it is conceded by the respondents counsel that they related to property of a value more than Rs. 100. Reliance is placed on Section 17 (1) (b), Registration Act which requires that non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property shall be registered. In regard to the alleged sale deeds, Exs. C-1 to C-6 it is not conceded that the value of the subject-matter of properties respectively affected by them was Rs. 100 or upwards. We, therefore, cannot assume in the absence of any evidence on the point that the said documents necessarily require registration under Section 17 (l)(b), Registration Act. In regard to them reliance is, however, placed on Section 51, T. P. Act, which provides that a transfer of immoveable property of a value of less than one hundred rupees, may be made either by a registered instrument or by delivery of the property. It is contended that as the transfers in the present case were under the documents in question, the documents had to be registered. Therefore, the alleged deed of partition Ex. C as also the alleged sale-deeds Ex. C 1 to C-6 required registration under the law, and they not having been registered by operation of Section 49, Registration Act, they could not affect any immovable property comprised therein or be received as evidence of any transaction affecting such property.

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10. ) The question, therefore, which arises for consideration is whether the aforesaid documents were inadmissible under Section 49, Registration Act, and whether, if they were inadmissible under Section 91 and Section 92, Evidence Act, any other evidence could be given to prove the partition and the allotments in question. A large number of decisions have been cited at the Bar in support of the respective contentions of the parties. The appellants learned counsel contends that the documents aforesaid being inadmissible, it was not permissible for the Courts below to look into any other evidence for the purpose of proving partition and allotments as alleged by the defendants, and, therefore, the plaintiffs" suit for partition had to be decreed. The learned counsel for the respondents, on the other hand, contended that even if the said documents may be held to be inadmissible as evidence of the transaction affecting such immovable property, the documents could be certainly used for the collateral purpose of proving the nature and character of the possession of the parties in respect of the properties in dispute. It may be that for the purpose of proving the title to the property the documents may be inadmissible, but there is nothing to debar the Court from looking into those materials in deciding the question of possession as exclusively claimed by the defendants in respect of the lands which were the subject-matter of that partition. In regard to Ex. C-1 to C-6, the further argument available to the defendants is that the said documents which purport to be sale-deeds could also be relied upon by the defendants under Section 53A, T. P. Act as permitted by the proviso to Section 49, Registration Act, the defendants in consideration of the sale-deeds in question having been put in possession of the disputed four plots allotted to them by way of part performance.

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11. ) I have examined the decisions cited at the Bar with great interest, and I confess to a feeling of confusion and bewilderment in the maize (sic) of conflicting judicial pronouncements on the point.

( 12. ) Fortunately for me a recent decision of the Judicial Committee of the Privy Council throws a good deal of light upon the problem, and that also because the facts appear to be parallel to the facts in the present case. I refer to the decision in Ram Rattan v. Parma Nand 73 I. A. 28 : (A. I. R. (33) 1946 P. C. 51). The appeal arose out of a suit for partition in respect of joint family properties. The defendants contested the suit alleging previous partition and referred to certain memoranda in their written statement which constituted an instrument of partition. The documents were un-stamped and unregistered. One of the issues framed in the case was whether there was a previous partition as alleged by the defendants. The trial Judge held that the said memoranda were inadmissible, and in the absence of written evidence between the parties, he could not rely upon other evidence on their part. In appeal, the High Court held that the oral evidence proved partition as alleged by the defendants, and even if the documents, the memoranda in question, were inadmissible, they could be used to corroborate the oral evidence for the purpose of proving the factum of partition as distinct from its terms. The Judicial Committee did not agree with the opinion of the High Court that the documents which required to be stamped and registered could be used to corroborate the oral evidence for the purpose of proving partition because under Section 35, Stamp Act, no instrument chargeable with duty shall be admitted in evidence for any purpose.... Their Lordships, therefore, paid no regard to the documents in question, but nonetheless agreed with the High Court in thinking that the oral evidence proved partition as alleged by the defendants I may quote their own words:

"In their Lordships view the evidence establishes a physical division of much of the joint property in February, 1939, and this is only consistent with a severance in the status of the parties having taken place."

This their Lordships did in spite of the fact that counsel for the appellant contended on the strength of Section 91, Evidence Act, that the factum of partition could not be proved by oral evidence, when the terms of the alleged partition had been reduced to writing. It is true that Section 91, Evidence Act, is not specifically referred to in their judgment but that their Lordships did not consider it as a bar to looking into the other materials on record for the purpose of proving partition is more than apparent from their findings. 12a. It is important to remember that in the above case the Privy Council was dealing with the wider prohibition contained in Section 35 Stamp Act. They make it quite explicit in observing :

"It is unnecessary to consider the effect of Section 49 Registration Act, because the documents in question not being stamped the wider prohibition contained ins the Stamp Act applies ... ."

In the present case we are concerned not with the "wider prohibition" under Section 35, Stamp Act, but, if I may use the expression the "narrower prohibition" as contained in Section 49, Registration Act, the documents impugned in this case having been impounded and the stamp duty realised as already pointed out by me Section 35, Stamp Act, enacts that no instrument chargeable with duty shall be admitted in evidence "for any purpose". Section 49, Registration Act is not so rigorous in its application. It only says that the document required by Section 17 to be registered shall not be received as evidence of any transaction affecting such property" and this contrast in the language is further stressed in the proviso to Section 49, Registration Act, under which an unregistered document affecting immovable property may be received as evidence (i) of part performance of contract, or (ii) as evidence of any collateral transaction not effected by the instrument. That unregistered documents have been so used for collateral purposes in evidence is borne out by a very large number of decisions. I may incidentally refer to two other decisions of the Judicial Committee by way of illustration: Varada Pillay v. Jeevarathnammal, 43 Mad. 244: (A.I.R. (6) 1919 P.C. 44), in which a registered deed of gift was referred to for ascertaining the nature and character of the possession held by the donee though the documents could not be used as evidence of title. In that case their Lordships pointed out that where the donor did not effect a registered deed of gift but allowed the donee to enter into possession of the gifted property for oven 12 years, the donees title be came perfected as against the heirs of the donor. I may quote here the observation of Viscount Gave who delivered the judgment of the Board in that case :

"In other words, although the petitions and order do not amount to a gift of land, they lead to the inference that the subsequent receipt of the rents by Duraisani was a receipt in the character of donee and owner of the land and therefore, in her own right and not as trustee or manager for her mother and aunt."

Again in Rajangam Ayyar v. Rajangam Ayyar, 46 Mad. 373: (A. I. R. (9) 1922 P. C. 266), the Judicial Committee of the Privy Council held that an unregistered deed of partition could be put in evidence for the purpose of proving a division of status in a joint Mitakshara family. It would be needless to multiply authorities on the point.

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13. ) The word "partition" involves two concepts (i) change of status and (ii) division of property. Severance of status does not require to be proved by any documentary evidence at all, nor is it necessary that for the purpose of proving actual division of property between the members of a joint family a written instrument is essential. Where, therefore, there is evidence that there was an actual division of property between the parties, and that they went into possession of their respective shares in accordance with that division, and there are also circumstances to show that the conduct of the parties are inconsistent with anything except the factum of separation, a Court of law may very well hold, apart from any instrument of partition, that the parties had separated in status and effected partition of the family properties. This, in my opinion, would be a perfectly legitimate course to adopt, and this is the course which has been adopted in the present case by the Courts below in coming to their findings on the question of partition. I may again refer here to a passage in the judgment of the lower appellate Court on the point. It says :

"Therefore Exs. C-1 to C-6 had lost the primary importance in face of the large body of the rent receipt which by themselves very definitely gave support to the case of the defendants. But supported by the receipts the documents Exs. C series also were reliable."

It is not therefore, that the lower appellate Court has primarily relied upon the impugned documents in coming to a finding of partition. It has relied upon the receipts and other materials on the record to prove this disruption of status and division of property between the plaintiffs and the defendants based as it was upon the separate possession of the parties and their separate dealings with the properties even since 1325 f., as alleged by the defendants. In my opinion, the documents in this case could be referred to for the collateral purpose of showing that the parties were dealing with the properties in their separate possession on the footing that there had been a partition between the members of the family as stated by defendant 1 to 3 in their written statement.

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4. ) I must, however, briefly refet to some of the other cases on which reliance has been placed by the learned counsel for the appellants who, I must say, has argued the case with great care and perseverance. He relies upon a decision of this Court in Ramautar Singh v. Juthi Tatma, 18 P.L.T. 1012. I must say at first sight that the decision in question lends a plausible support to his argument. There a plaintiff had sued for possession of land basing his title on an unregistered patta. The Courts below allowed the plaintiff to prove his title by the production of rent receipts and by general circumstances and by using the unregistered patta for a collateral purpose. The High Court set aside the decree holding that the patta was inadmissible being unregistered, and the other evidence in the case could not be taken into consideration for the purpose of proving the plaintiffs title to the lands in suit. Their Lordships in their judgment sought to rely upon a previous decision of this Court in Janki Kuer v. Brij Bhikan, 5 P.L. T. 511: (A.I.R. (11) 1924 Pat. 641) [LQ/PatHC/1924/5] , which is really the crux of the above decision. On an examination of the earlier decision, it appears if I may say so with, respect, that it does not fully support the conclusions of their Lordships. In the earlier case in question Sir Dawson-Miller C. J. who delivered the judgment of the Court quite clearly laid down that a document which is inadmissible in evidence for the purposes mentioned in Section 49, Registration Act, may nevertheless be admitted in evidence for a collateral purpose, as for example, to explain why a transferee under a deed imperfect through lack of registration was in possession or to prove the nature of that possession. They also held that, if the acts of the parties disclose a state of affairs consistent with the existence of an agreement mutually recognised and acted upon as if the instrument, were binding upon the parties, then, although the written document may be defective as a valid and finally concluded agreement, such defects may be supplied by the subsequent actings and conduct of the parties, and their Lordships relied upon, amongst other cases, the decision of the Judicial Committee in Varada Pillai v. Jeevaratnammal, 48 Mad. 244 : (A. I. R. (6) 1919 P. C. 44), already referred to by me above the other weakness of the decision in Ramautar, Singh v. Juthi Tatma, 18 P. L. T. 1012 is, if I may point out, that there is no reference to an earlier decision of this Court which is also a Division Bench judgment in Keshwar Mahton v. Sheonandan Mahton, A. I. R. (16) 1929 Pat. 620 [LQ/PatHC/1929/99] : (10 P. L. T. 449). In that case also their Lordships held that where a contract of the sale of the immovable properly has been reduced to writing and is followed by delivery of possession, a party is not debarred under Section 91, Evidence Act to prove his possession as a means of conveying the property. This decision shows dearly that the fact that there was an unregistered instrument did not stand in the way of proving title by delivery of possession where under the law title could pass in that manner. To a similar effect is another Division Bench decision of this Court in Mt. Besar Kuar v. Ramhit Singh, 21 P. L. T. 1063 : (A. I. R. (28) 1941 Pat. 167) [LQ/PatHC/1940/194] .

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5. ) Another case on which very strong reliance has been placed by the learned counsel for the appellant is Fall Bench decision of the Madras High Court in Ramayya v. Achamma, I. L. R. (1945) Mad 160 : (A. I. R. (31) 1944 Mad. 550 [LQ/MadHC/1944/157] F.B ) in which case it was definitely held that where a deed of partition is inadmissible in evidence for want of registration, the partition cannot be proved by evidence apart from the deed. It appears that a reference to the Full Bench was occasioned in view of a conflict between the decision of Kumaraswami Sastri, J. sitting with Venkatasubba Rao, J. in Ramu Chetty v. Panchammal, A, I. R. (13) 1926 Mad. 402 [LQ/MadHC/1925/478] : (92 I. C. 1028) and that of Patanjali Sastri, J. in Veera Raghava Rao v. Gopalarao, 1941-2 M. L. J. 707 : (A. I. R. (29) 1942 Mad. 125) [LQ/MadHC/1941/280] . In the latter case Patanjali Sastri, J. held that where a deed of partition is inadmissible by reason of the fact that it has not been registered, a co-sharer who happened to be in sole enjoyment of a particular property could not sue to eject another co-sharer who had disturbed his possession when he based his title on the partition deed. The judgment of Patanjali Sastri J. was approved in Letters Patent Appeal to which Leach C. J. was himself a party; and Leach. C.J. when delivering the decision of the Full Bench approved of the view which he took in agreement with Patanjali Sastri J. in affirming the latters decision in Letters Patent Appeal. The Full Bench decision does not assign any other material reason for the purpose of not adopting the decision in Ramu Chetty v. Panchammal, A. I. R. (13) 1926 Mad. 402 [LQ/MadHC/1925/478] : (92 I. C. 1028) as good law when that decision was based upon the earlier decisions of the Judicial Committee in Varada Pillai v. Jeevarathnammal, 43 Mad. Mi: (A.I.R.(6) 1919 P. C. 44) and Rajangam Ayyar v. Rajangam Ayyar, 46 Mad. 373. (A. I. R. (9) 1922 P. C. 266). There is also no consideration in the Full Bench judgment of Section 49, Registration Act, and the proviso to the section. It is interesting to refer in this connection to a subsequent decision of the Madras High Court in Subba Naidu v. Varadarajulu Naidu, I. L. R. (1947) Mad. 694 : (A. I. R. (35) 1948 Mad 26) [LQ/MadHC/1946/239] . I say it is interesting because the judgment in this case has been delivered by Patanjali Sastri J. himself whose decision was approved by the Full Bench. This was also a case of partition between members of a joint family. In order to establish that there was a complete partition, the defendant in the suit relied upon an unregistered koorchit or instrument of partition purporting to evidence a partition arrangement among the members of the family including the plaintiff and the defendant. The trial Judge held that the document not having been registered could not be "looked into for any purpose." An application was made before the High Court for admission of the rejected koorchit as additional evidence under Order 41, Rule 27, Civil P. C. It was contended for the appellant that the Court below had erred in holding that the unregistered koorchit was inadmissible "for any purpose." His Lordship upheld the contention and observed :

"This contention is clearly right. Unlike the Stamp Act which renders an instrument not duly stamped inadmissible for any purpose the Registration Act prohibits its admission only for certain purposes (Section 49). Ramayya v. Achamma, I. L. R. (1945) Mad. 160 (A. I. R. (31) 1944 Mad. 550 [LQ/MadHC/1944/157] F. B.) relied on by the learned Judge lends no support to this view."

His Lordship also upheld the appellants contention that the document was admissible to prove the adverse-character of the possession of defendant l in respect of the lands which were allotted to him under the koorchit though such allotment was ineffectual for want of registration. When the attention of his Lordship was drawn to the decision of the Judicial Committee in Ram Rattan v. Parmanand, 73 I. A. 28 : (A.I.R. (39) 1946 P. C. 51) his Lordship observed : It will thus be seen that the oral evidence considered by their Lordships was in support of the plea that, there having been a previous partition, the suit in the present form i. e. framed as one for partition did not lie. In other words, their Lordships considered the oral evidence to find out whether the fact of a partition prior to the suit was established." In that view, his Lordship drew a distinction between the Full Bench decision in Ramayya v. Achamma, I. L. R. (1945) Mad. 160 : (A. I. R. (31) 1944 Mad. 550 [LQ/MadHC/1944/157] F. B.) and the decision of the Privy Council in Ram Rattan v. Parma Nand, 73 I. A. 28: (A. I. R. (33) 1946 P. C. 51). I may refer to another decision of the Madras High Court in Koyatti v. Imbichi Koya, A. I. R. (33) 1946 Mad. 534 [LQ/MadHC/1946/119] : (1946-1 M. L. J. 454) where Somayya J. observed as follows : "The Judicial Committee did not refer to the difficulty of admitting other evidence when the transition was admittedly reduced to writing and that writing was inadmissible either under Section 35, Stamp Act, or under Sections 17 and 49, Registration Act. But there is no doubt that the Judicial Committee had no difficulty in finding a partition on other evidence. But whether other evidence is admissible to prove the details of the partition is still open to doubt. It is not clear whether oral evidence was accepted only in proof of the division in status or to prove the details of the partition. When the question directly arises hereafter in this Court, we may have to consider whether the Pull Bench decision in Ramayya v. Achamma, I. L. L. (1945) Mad. 160 : (A. I. R. (31) 1944 Mad. 550 [LQ/MadHC/1944/157] P. B.) is good law after the decision of the Judicial Committee."

( 16. ) Whatever the position may be in regard to suits for ejectment and recovery of possession baaed upon a claim of partition, it is quite clear that in the present case we can safely follow the principle as already indicated by me above that the documents were admissible for a collateral purpose to determine the nature and character of possession, and that the other materials on the record could also be taken into consideration for the purpose of coming to a decision that the possession in question was referable to a division of properties between the parties concerned. In doing so I prefer to rest my decision on the judgments of the Judicial Committee and the Division Bench judgments of this Court, all of which I have already discussed above.

( 17. ) I may also refer to another decision cited by the appellants counsel in support of his contention. I mean a decision in Subramanian v. Lutchman, 50 I. A. 77 : (A. I. R. (10) 1928 P. C. 60). In that case the Judicial Committee observed :

"The rule with regard to writings is that oral proof cannot be substituted for the written evidence of any contract which the parties have put into writing. And the reason is that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement. If this memorandum was of sack a nature that it could be treated as the contract for the mortgage and what the parties considered to be the only repository and appropriate evidence of their agreement, it would be the instrument by which the equitable mortgage was created, and would come within Section 17 of the Registration Act."

This was a case of an equitable mortgage where a mortgage could be created by deposit of a document of title without writing, but it was held that the general rule was inapplicable when a deposit was made accompanied with an actual written charge. In that case their Lordships said :

"You must refer to the terms of the written document, and any implication that might be raised, supposing there was no document, is put out of the case and reduced to silence by the documents by which alone you must be governed."

The other case relied upon by the learned counsel for the appellants Bhuhan Mian v. Radhika Kumari Debi, 19 P. L. T. 489 : (A.I.R. (25) 1938 Pat. 479) [LQ/PatHC/1938/97] is also a case of mortgage. In a case to enforce a mortgage one may well be required to prove the terms of the contract, and that can only be done by production and proof of the document itself in which the terms are embodied and not by evidence aliunde.

( 18. ) In view of the findings indicated by me above that the parties have been in separate possession of the properties ever since 1325F, as alleged by the defendants, the suit for partition filed by the plaintiffs is not maintainable. I have, therefore no hesitation in accepting the finding of the two Courts below in this appeal, and, in my opinion, there would be no useful purpose served in remanding the case to the Court below for a fresh finding on the question of adverse possession or ouster as suggested by the learned counsel for the appellants. The evidence which has been accepted by the Courts below quite clearly indicates that the parties have been in separate possession of their respective lands.

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9. ) As to his last contention that in any case Plot No. 1600 should be divided, I find that there is no substance in this contention. It is true that in the written statement defendants 4 to 11 opened their mouth a little too wide; but, as observed by the Court of appeal below, at the trial they accepted the case set out in the written statement of defendant l, and confined their claims only to the four plots of khata 178 mentioned in the said written statement which included plot No. 1600. It has been found on the evidence that these plots were actually allotted to defendants 4 to 11 sometime in the year 1333F, after the death of the widow of Jiyan Singh. This fact, as held by the Courts below, is borne, out by the receipts; as also by the documents Exs. C-1 to C-6 which, in my opinion, are admissible not only for the collateral purpose of proving separate possession but also admissible in proof of part performance under Section 53A, T. P. Act; and also by the oral evidence on the point. That being so, on this point again the appeal is concluded by a finding of fact against the appellants.

( 20. ) In the result, the decision of the Courts below is maintained, and the appeal fails, and it must be dismissed with costs.