Horace Owen Compton Beasley, C J - (1.)Plaintiffs 2 to 7 are the appellants. The 1 plaintiff died after the suit was filed. The 1 defendant is the wife of Sambayya, the deceased brother of the 1st plaintiff, and the 2nd defendant is the son-in-law of Sambayya having married Suramma, his fourth daughter. The 1 plaintiff and Sambayya were formerly members of an undivided Hindu family in possession of large properties. It is alleged in the plaint that Sambayya managed the family property and that he died an undivided member of the family on the 24 November, 1925. He was at the time of his death the Village Munsif of Dokiparru. One of the questions to be decided in this appeal is whether the 1 plaintiff and Sambayya became divided or not. Neither the 1 plaintiff nor Sambayya had any male issue. They had only daughters. It is alleged in the plaint that after the death of Sambayya the entire property of the joint family devolved upon the 1 plaintiff by right of survivorship. It is alleged that the 1 and 2nd defendants nevertheless took possession of the joint family property and a decree is sought establishing the right of plaintiffs 2 to 7 and the 3 defendant to enjoy the property set out in Schedule A and a permanent injunction is claimed restraining the 1 and 2nd defendants from causing obstruction to the enjoyment of plaintiffs 2 to 7 and the 3 defendant in this property and other reliefs. The plaintiffs, therefore, base their claim on a right to enjoy the undivided property of the 1 plaintiff and Sambayya. To meet this case the defendants set up the plea that Ramayya (the 1 plaintiff) and Sam- bayya were divided members and that the share of Sambayya did not pass to the 1 plaintiff after his death by right of survivorship. It is alleged that a partition was effected in November, 1924, between Sambayya and Ramayya and that share lists showing a division of the properties were prepared at Bunder on the 9th November, 1924 and in para. 5 of the written statement the items which fell to the share of Sambayya are set out. At this time Sambayya was very ill and he died on the 24 November, 1925. Before he died it is alleged that he made a will at Bunder disposing of the property which fell to his share in the partition. The date of this alleged will is the 26 February, 1925. Under the terms of this document, Exhibit VII, 15 acres of land passed to his daughters, 12 acres under a codicil of the same date to the 2nd defendant, some 5 acres of land and godowns to a temple and the residue to one Koti Reddi, who was the son of the 2nd defendant and whom it is alleged by the defendants Sambayya adopted. Sambayya's second daughter, Sowbhagyam, who was a widow living in Sambayya's house was not provided for. in the will. In Exhibit VII Koti Reddi is described as the adopted son of Sambayya and it is also stated in it that Sambayya had given authority to the 2nd defendant, the natural father of Koti Reddi, to act as guardian of Koti Reddi and to act as Village Munsif during his minority and to manage all his properties. The rice mill at Gudlavalleru which in the will is stated by Sambayya to be his self- acquired property was bequeathed to Koti Reddi. This alleged will--I describe it as an alleged will because it is the plaintiff's case that it is a spurious document--was attested by four witnesses, namely, Divi Rangacharyulu, a doctor who was attending on Sambayya, Pamireddi Ramayya, the 1 plaintiff;-- Korapati Venkatakrishnayya (D.W. 4) and another witness whose signature is illegible but who was examined as D.W. 5. It is not disputed by the plaintiffs that the signature of the 1 plaintiff is his, but it is alleged that he was an uneducated man and under the influence at this time of the 2nd defendant and that he either signed the document being unaware of its contents or the document was written on blank paper which bore the signature of the 1 plaintiff. It will be seen, therefore, that the respondent's case is that Sambayya having effected a partition with Ramayya disposed of by will the share which fell to him by reason of the partition and that, therefore, the plaintiffs have no right to any of the property of Sambayya so disposed of ; and a matter of considerable importance to be considered here is whether the allegation by the defendants that the 2nd defendant's son Koti Reddi was adopted by Sambayya is true or false. It should be mentioned that the 2nd defendant's son Koti Reddi died on the 1 January, 1926. Not, however, content with setting up a defence claiming Sambayya's property, a claim for Ramayya's property is also made by reason of an alleged relationship of illatom son-in-law to Ramayya. The 2nd defendant, it will be remembered, married Sambayya's fourth daughter. He was, therefore, a son-in-law of Sambayya, but notwithstanding this it is the case of defendants 1 and 2 that Ramayya who had no unmarried daughters and no male issue brought up Surammal and gave her in marriage to the 2nd defendant. In the written statement of the 1 and the 2nd defendants it is stated that Sambayya and Ramayya effected an arrangement to the effect that Ramayya should take Surammal as his foster-daughter and she should be given in marriage to his sister's son, the 2nd defendant, that the latter should have a joint right to the property of Ramayya and that after the death of Ramayya the entire property forming the share of Ramayya should pass to him. This illatom relationship and the rights attaching thereto are denied by the plaintiffs. It is also alleged by the defence--and this is admitted by the plaintiffs--that whilst the suit was pending Ramayya, the 1 plaintiff, disposed of the bulk of the plaint properties, having by means of a Dhakal deed disposed of immoveable properties worth Rs. 50,000 and under another Dhakal deed properties worth Rs. 8,000. Ramayya died in July, 1926.
(2.)Several points of great importance and difficulty arise in this appeal. They are : (1) Did Ramayya and Sambayya become divided before the death of the latter? (2) Is the will, Exhibit VII, and its.codicil genuine? (3) Was Koti Reddi the adopted son of Sambayya? (4) Was the 2nd defendant the illatom son-in-law of Ramayya? (5) If he was, to what share of Ramayya's property is he entitled? and (6) Was the rice mill in Gudlavalleru the self-acquired property of Sambayya? In considering the before-mentioned matters several difficult questions of fact and law present themselves.
(3.)In dealing with the first question what we have to consider is whether what is described by the defendants as a "share list" can be properly given that description and whether it is a deed effecting a partition as is alleged by the defendants. This question is a most important one because that document is an unregistered one. If it is a document which under the Registration Act is required to be registered, then the question arises whether it can be referred to in evidence in order to prove that there was a partition or division in status as between Sambayya. and Ramayya or whether it can be disregarded altogether and parol evidence admitted to prove a division in status or partition. First of all, does this document require registration? Under Section 17(b) of the Registration Act (XVI of 1908) amongst other documents required to be registered are 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 immoveable property. If Exhibit VIII is a document of this description, then under Section 49 of the same Act it shall not affect any immoveable property comprised in it or be received as evidence of any transaction affecting such property unless it has been registered. Therefore the first thing to be considered is whether this is a document such as is described in Section 17(b) of the Registration Act. Exhibit VIII is headed "Particulars of the immoveable properties which fell to the share of Pamireddi Sambayya in the division of the family properties effected on the 9th November, 1924, between the sons of Pamireddi Lakshmanna (1) Sambayya and (2) Pamireddi Ramanna's adopted son, Ramayya, residents of Dokiparru village." Then follow the survey numbers of the properties, their situation and their rough extent. This document was signed by both Sambayya and Ramayya. The writer of the document is stated to be Burra Ramayya (D.W. 3) and there are the signatures of two attesting witnesses, Nagabhushanam who was not called as a witness in the Court below and Seetaramaswami (D.W. 7). For the plaintiffs it is contended that this document operates to create an interest in the immoveable property described in it and by the defence it is contended that it is nothing more than a memorandum of a division of properties previously agreed upon. A wealth of authority upon this question has been presented to us in the course of the argument by both sides. Amongst the cases to which we were referred are the following : Pothi Naicken V/s. Naganna Naicker (1915) 30 M.L.J. 62 (F.B.). There the document in question reads as follows: As we have, in the presence of the undermentioned Panchayatdars, divided, into equal moieties, the cash, moveablcs and immoveables, Court decrees, etc., of which we are now possessed, valued at Rs. 80,000, our connection shall hereafter be only by relationship, but we shall have no monetary connection in respect of these properties.