ITTOLI MOIDIN KOYAS SON KOYATTI AND ORS. Vs. IMBICHI KOYA AND ORS.

JUDGEMENT

(1.) THREE brothers of the Ittoli family, namely, Moideen Koya, Mamoo and Ahammad were carrying on business in hardware and sundries. They acquired the A schedule property under Ex. P -8, dated nth August, 1917, a sale deed which stands in the names of the three brothers. They acquired also other properties that are set out in schedules B and C. The first item in the B Schedule is the family house and the paramba attached to it. Moideen Koya died in 1926 and his heirs are defendants 2 to 6. Mamoo is the first defendant in the suit. Ahammad died between 1936 and 1939 leaving a widow, the tenth defendant and several children who are defendants 7, 8, 9 and 11. The plaintiff is the Court auction -purchaser in execution of a small cause decree passed in S.C.S. No. 134 of 1936. A third party filed that suit against Ahammad Koya, -obtained a decree and bought the undivided one -third share of Ahammad, the judgment -debtor in the A schedule property. After purchasing the property the plaintiff got symbolical delivery and then filed the present suit on 13th October, 1939, for partition and delivery to him of the one -third share of Ahammad Koya. The contesting defendants are defendants 2,5 and 6, who are the appellants in this Court. Their defence is that in a partition suit filed by them in the Sub -Court of Calicut, O.S. No. 34 of 1935 the whole of A schedule property was allotted to their share. It is said that item 2 of the present B schedule was given to defendants 3 and 4 and that items 1 and 3 of the B schedule were left to be enjoyed as common properties by all the three branches. According to this partition Ahammad's representatives or Mammu, the first defendant, were not given any separate properties in addition to the common right in items 1 and 3 of the B schedule for the reason that they had largely overdrawn from the funds of the partnership or from the other funds of the family. Unfortunately the decree was not drawn up on a non -judicial stamp paper as required by law. The final decree is said to have been passed in the later part of 1937.

(2.) IF there had been a valid decree in force then the plaintiff would get nothing because his purchase would be subject to the rights declared under that decree. That decree having given the whole of A schedule property to the appellants there was no right of Ahammad in the A Schedule property which could be purchased by the Plaintiff and he would have to be non -suited. Unfortunately the Court did not take care to see that the decree was drawn up on non -judicial stamp paper. It is the obvious duty of the Court in passing final decrees for partition to insist upon the parties supplying the necessary stamp paper of proper denomination and to have the final decree drawn up on such non -judicial stamp paper. That was not done. The parties did not realise the consequences of this omission and the result has been very unfortunate from the standpoint of the appellants.

(3.) HOWEVER , we have to deal with facts as they are and here the compromise decree and the compromise have to be rejected as inadmissible in evidence for the reasons stated above. A decision of this Court in Ramayya v. Achamma, (1944) 2 M.L.J. 164 :, I.L.R. (1945) Mad. 160 held that where a deed of partition is inadmissible for want of registration the parties are not entitled to prove by other evidence the details of the partition in so far as the immovable properties are concerned. Proof cannot be given that particular items of immovable property fell to particular sharers. It is argued for the appellants that in so far as this dcision held that even other evidence is not admissible to prove which item fell to which individual sharer, the matter will have to be reconsidered in the light of the decision of the Judicial Committee reported in Ram Rattan v. Paramanand, (1946) 1 M.L.J. 295 . It is urged that in that case a document which was in effect a partition deed was relied on to prove the details of the partition, that the document was rejected by the Judicial Committee for the reason that it was unstamped and therefore not admissible in evidence for any purpose whatever under Section 35 of the Stamp Act and that having rejected the document their Lordships held that the other evidence proved the partition. Reliance is placed on the following passage in page 198: