Decided on April 11,1950

Gutta Radhakristnayya Appellant
Gutta Sarasamma Respondents


SUBBA RAO, J. - (1.) THIS is a defendant's appeal against the preliminary decree for partition in O. S. No. 24 of 1946 on the file of the Court of the Subordinate Judge, Masulipatam. The plaintiff is the paternal grandfather of the defendant. The defendant's father was Satyanarayana who died in the year 1921. They constituted members of a joint Hindu family and possessed of immovable properties set out in Schedules A and B annexed to the plaint and some movables. The plaintiff filed the above suit for partition of the family properties and for profits.
(2.) THE defendant inter alia, pleaded that there was a partition of the family properties through the intervention of mediators and he wag put in possession of the properties that fell to his share. He relied upon a document em. bodying the arrangement between the parties. He also resisted the suit on the ground that the plaintiff was precluded from questioning the alleged partition on the doctrine oi part performance. As many as eleven issues were rained in the suit hut it is unnecessary to consider them in detail as the learned advocates confined their arguments before us only on two points. The learned Subordinate Judge held that the letter dated 15th February 1944 alleged to have been executed by the plaintiff was not admissible in evidence. He passed a preliminary decree effect -ing a division into two equal shares of the properties set out in the schedule to the plaint. The defendant preferred the above appeal. The learned counsel for the appellant raised two contentions before us: (1) that the document dated 16th February 1944 is admissible in evidence as it only recorded a completed partition that was entered into between the parties through the intervention of the mediators; (2) that the defendant having been put in possession of the properties that fell to his share is entitled to defend the suit on the ground of part performance. The first point turns upon the construction of Ex. X -1. It may be pointed out that the contention now raised before us, namely, that document was only a record of a completed oral partition that was entered into between the parties, was neither raised in the plead, ings nor the question was argued before the learned Subordinate Judge. The only question that was addressed to him was that the document did not require registration as it con -templated a formal document being executed subsequently. The document gives in detail the nature of the disputes between the parties and also the settlement of the same through the intervention of the mediators. The properties allotted to the respective parties are minutely described. It provides for payment of money for equalization of the shares; the debts payable by the respective parties are detailed; the covenants of mutual indemnity are also embodied in the document, it was signed by the plaintiff and the mediators attested the same. In short, all the terms in regard to the partition of the properties between them are embodied in the docu -ment. The document contains the following recital: 'In the said settlement the mediators settled to give the hereunder Schedule A items 1 and 2 of property to me, the Schedule B mpntioned property to the minor, and Schedule C mentioned property to your daughter Leelavati on your behalf, towards the income, that may be got from thefamily property for the property given to you for pasupu kunkuma (pin money). Therefore, Schedule mentioned property fell to Leelavati. As regards the said properties, we have this day accordingly taken possession of tbe lands inclusive of the heaps of crops and the standing crops that fell to our respective shares. Hence we shall not raise disputes with each other.' These recitals clearly show that the document itself creates a right in prasenti in favour of the parties to the deed. The learned advocate relied upon the recital in the document, namely, that 'We shall enter into a proper document before 15th March 1944 and get it registered at the expense of both the parties,' in support of his argument that it does not require registration. The recent judgment reported in Md. Ghouse Sahib v. Jamila Bibi, : AIR1950Mad433 to which one of us was a party, discusses tbe scope of such recitals in a document. It was held therein that as the document in question created an interest in immovable property the mere fact that a provision was inserted enabling the par -ties to get a proper partition deed written up on stamp paper and get the same registered did not take away the document from the mischief of 33. 17 and 49, Registration Act. A perusal of the present document leaves no doubt in our minds that it creates an interest in prasenti in tbe properties covered by the same and, therefore, it requires registration. It not having been registered, we agree with the learned Subordinate Judge that the document is not admissible in evidence.
(3.) THE next question raised by the learned advocate raises an interesting point of law, namely, whether tbe doctrine of part performance embodied in Section 53A, T. P. Act applies to partition arrangements. Section 53 -A, T. P. Act reads : 'Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and tbe transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though it requires to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, tbe transferor or any person claiming under him shall be debarred from enforcing against tbe transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other tban a right expressly provided by the terms of the contract.' 'Transfer of property' is defined in Section 6 of the Act as 'an act by which a living person conveys property, inpresent or in future to one or more other living persons, or to himself and one or more other living persons; and 'to transfer property' is to perform such act.' The necessary condition for the application of Section 58 -A is that the transition must be a contract of transfer for consideration of any immovable property. The question, therefore, is whether a partition is a transfer for consideration within the meaning of the section. There is no direct decision on the interpretation of Section 63 -A in regard to its applicability to a partition, hut the learned counsel relied upon the meaning attributed to the word 'transfer' appearing in Section 53 of the Act and also in other Acts. There is a sharp cleavage of judicial opinion on the question, and a long catena of cases have been cited before us on either side. We shall consider them in some detail in theirchronological order as the reasoning of the learned Judges certainly helps us to arrive at our conclusion.;

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