Authored By : Macpherson, T. Ameer Ali

Macpherson, J.

1. The plaintiffs Nos. 1 to 3 and the defendants Nos. 2 to4, being the descendants of one Naffar Mahomed, were the owners of the jotewhich is the subject of this suit and other properties. In June 1888, theyentered into a written agreement called a solenama, by which the plaintiffstook a two-third share and the defendants a one-third share of the jote. Thesolenama is not before us, and we are not acquainted with its precise terms,but it is said to have effected a settlement of the disputes relating to allthe family properties and to have provided for a partition of them. Oneprovision admittedly was that, in the event of a partition, the defendantsshould take the whole jote as representing their share of all the properties.

2. The plaintiffs claim a two-third share of the jotealleging a dispossession by the defendants in March or April 1892. The firstdefendant claims to have purchased the entire jote from the other defendantsafter the partition contemplated by the solenama had been made. The facts inissue are:

(1) Whether a partition in accordance with the terms of thesolenama had been effected;(2) whether after partition the first defendant hadpurchased the jote from the other defendants. The Lower Appellate Court decidingboth those issues in favour of the defendant reversed the first Courts decreeand dismissed the suit.

3. It is now contended that the transaction by which thevendee defendants obtained the jote being one of "exchange" underSection 118 of the Transfer of Property Act, could only be effected by aregistered instrument and that there was no valid transfer of the jote to them.Also, that the District Judge in finding a partition has improperly relied upontwo documents which were irrelevant and not evidence against the plaintiffs.

4. The solenama, it may be observed, was registered, butthere was no subsequent writing giving effect to the partition.

5. The learned pleader for the appellant relies upon thecase of Frith v. Osborne (1876) L. R 3 Ch. D 618 as showing that thetransaction referred to was in substance an "exchange" as defined inSection 118. There, an undivided moiety of lands was vested in A, B and G astrustees of a settlement, which expressly authorized a partition, and the othermoiety was vested in D, E and F as trustees of a settlement with power to sellor exchange, and a partition deed was executed by the trustees of the twomoieties. The question arose as to whether the power of sale and exchange givento D, E and F authorized a partition, and that involved the further question,which was then doubtful, of the power of tenants in common to effect anexchange of their respective moieties of the land held in common before theyhad made a partition. The Master of the Rolls held that such an exchange couldbe made, and that the power of exchange was properly exercised by a partition.In deciding a question such as that now raised, we must avoid getting involvedin the intricacies of the law of England relating to real property.

6. Assuming that there was what amounted to an"exchange" within the words of Section 118 between the vendordefendants and the plaintiffs, the undivided interest of the former in all theother properties being exchanged for the undivided interest of the latter inthe jote, the Transfer of Property Act does not apply to the transaction. Theexchange was intended to and did effect a partition. The completed transactionwas the partition by which the parties held in severalty the lands which hadbeen before held in common. The law does not require a partition to be effectedby an instrument in writing, and the right of partition being an incident ofproperty held as this property was, the right is not, according to the secondSection, affected by any of the provisions of the Act. The Act, moreover, doesnot profess to deal with partitions or the way in which they are to beeffected.

7. Treating, therefore, the transaction as a partition,although it may have been effected in a way which involved, as between theco-owners, a transfer of the ownership of parts of the undivided propertyamounting to an exchange, I hold that it does not come under Section 118, andthat it was not necessary to complete it by a registered instrument.

8. The documents objected to are Exhibits 9 and 43, theformer being a petition, and the latter a written statement, put in by thevendor defendants in certain suits, and they contain statements of thosedefendants that they were in possession of the entire jote. The District Judgesays they were objected to before him as containing admissions made by thedefendants which could not be proved on their behalf, and that is all we knowabout them.

9. The vendor defendants, who are charged in the plaint withcolluding with the vendee, the first defendant, put in a verified writtenstatement denying the partition and the sale, and one of them, it is said, wasexamined as a witness for the plaintiff. It is clear that they were supportingthe plaintiffs case, and I think the statements which went to show that therehad been a partition and that they had changed their attitude could be provedas against them. The reference to Section 157 is probably a mistake, but Ithink the Judge was right under the circumstances of the case in holding thatthe statements were admissible under Section 21 (3) and Section 11 (2) of theEvidence Act.

The appeal is dismissed with costs.

T. Ameer Ali, J.

I am of the same opinion. Two questions were raised in thisappeal: (1) That the District Judge was wrong in relying on certain documentsreferred to in his judgment as they were inadmissible in evidence against theplaintiffs; and (2) that, as the transaction by which defendants 2 to 4 arealleged to have acquired the property in suit was or amounted to an"exchange," under the provisions of Section 118 of the Transfer ofProperty Act, it ought to have been effectuated by a registered document, andnot having been so done, the defendants 2 to 4 could not acquire any titlethereto or convey any title by their sale to the first defendant.

11. As regards the first point, it must be remembered thatthe question at issue in the case was whether or not there was a partitionbetween the heirs of one Naffar Mahomed, viz., the plaintiffs and defendants 2to 4, and whether under or in consequence of that partition, defendants 2 to 4had acquired an exclusive right to the property in suit. The defendants 2 to 4,from whom the first defendant purchased the jote, denied in their writtenstatement that they had exclusively acquired or were in exclusive possession ofthe property. They denied also the fact of the sale to the first defendant. Itappears that the second defendant was examined on commission on behalf of theplaintiffs. Under the circumstances, therefore, it is clear that the defendants2 to 4, though placed in the category of defendants, were exactly in the sameposition as the plaintiffs, and that their interests were more or lessidentical. The two documents objected to are a petition and a written statementfiled in some previous proceeding or proceedings, in which the defendants 2 to4 admitted the partition, and the exclusive acquisition by them of the jote insuit. These documents were, therefore, clearly admissible against them. But Igo further and hold that, having regard to the position of the parties, thestatements contained, in these documents are admissible generally incorroboration of the first defendants allegation. The plaintiffs anddefendantS 2 to 4 were co-owners of certain property, and the fact in issue in thepresent case is, as already stated, whether there was a partition between them,and whether under that partition the defendants 2 to 4 acquired or came to bein possession of a specific property in lieu of their shares in all theproperties. Any act done or statement made by any of the co-owners which tendsto corroborate the fact of partition would be relevant to the inquiry andconsequently admissible in evidence. In Naro Vinayek v. Narhan (1891) I. L.R.16 Bom. 125 statements such as we find here were held to come under theprovisions of Section 11 of the Evidence Act. I am, therefore, of opinion thatthe petition and written statement, to the admissibility of which objection hasbeen taken in this Court, are facts which by Section 11 are relevant as theymake the existence of the partition, which is the fact in issue, highlyprobable, and that no error has been committed by the District Judge in relyingon them.

12. As regards the second point the grounds of decision havebeen so clearly stated by my learned colleague that I have very little to add.I only wish to observe that English cases are of much assistance in elucidatinggenera principles and construing enactments when the Acts of the IndianLegislature happen to be in pari materia with English Statutes. But it would bedangerous, I think, to introduce into this country the complicated principlesor incidents of the English law relating to real property. The question,however, is whether Section 118 of the Transfer of Property Act is applicable toa transaction of the nature alleged, and found by the Judge to have taken placebetween the plaintiffs and the defendants 2 to 4. Section 118, in my opinion,is not applicable to cases where some of the co-owners possessing an undividedshare in several properties take by arrangement a specific property in lieu oftheir shares in all. Section 118, as its language shows, refers to cases wheretwo persons owning two specific properties transfer or convey their respectiveownership one to the other.

13. In this country a partition between co-owners does notrequire to be effectuated or evidenced by a written document, and there isnothing in the Act or in the phraseology of Section 118 to warrant thesuggestion that the Legislature intended to make any alteration in therecognized law on the subject.

14. For these reasons I agree in dismissing the appeal withcosts.

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Gyannessa and Ors.vs. Mobarakannessa and Ors.(14.07.1897 - CALHC)