Judgement

Appeal (No. 113 of 1921) from a judgment and decree of the High Court (February 24, 1920) varying a decree of the District Judge of Tinnevelly (October 29, 1918).

The suit was brought by Subramanya Ayyar, deceased, and represented by his son the respondent, against the appellant, son of Krishna Ayyar, under a partition agreement entered into by Subramanya Ayyar and Krishna Ayyar on January 7, 1915. The circumstances appear from the judgment of the Judicial Committee.

The plaintiff by his plaint alleged that under a division of the joint family properties in Travancore State which had been carried out by a later deed of February 4, 1915, Krishna Ayyar had obtained as jeshtabhagam a greater share than his brother. He expressly stated that in respect of the properties in Travancore he was prepared to get relief in the Courts of that State; he however prayed for a decree declaring that certain of the properties in the Tinnevelly District were solely his, as having fallen to his share under the agreement of January 7, 1915, and for an equal division of other properties there situated; he further prayed that the execution of a partition deed as to the properties in the Tinnevelly District should be ordered.

The defendant by his written statement, among other defences, pleaded that certain of the properties were not joint properties, and that the deeds of January 7 and February 4, 1915, were inadmissible in evidence in the absence of registration in British India under the Indian Registration Act, 1908.

The District Judge, to whose Court the suit was transferred, held that the documents were admissible upon a claim for specific performance; he further held that, there being a nucleus of family property, the property which the defendant alleged was his separate property must be regarded as joint in the absence of evidence. The learned judge made a decree as prayed, and directed the appointment of a commissioner to divide the properties where necessary.

An appeal to the High Court was heard by Sir John Wallis C.J. and Krishnan J. and was allowed, a decree being made remanding the case to the District Judge " to ascertain what properties in British Territory should be allowed to the plaintiff to give him his half share in the whole family properties." The learned judges were of opinion that in the absence of registration the agreement could not be enforced; in their view its terms precluded it from coming within proviso v of s. 17, sub-s. 2, of the Indian Registration Act, 1908. They considered that the suit could be treated as one for a general partition, but that in dividing the properties in British India the plaintiff should have a share which would be equal to that of the defendant when the unequal division in Travancore was taken into account.

1922. July 10. Upjohn K.C. and Dube for the appellant. The suit was for specific performance of the agreement, and could not be treated as a suit for a general partition Ma Shwe Mya v. Maung Mo Hnaung.(( 1921) L. R. 48 I. A. 214.) The decision of the High Court that the agreement was not admissible in evidence in the absence of registration is not appealed from by the respondent. Further, all the parties required by s. 221 of the Code of Civil Procedure are not before the Court so as to enable the decree to be made. If, however, the plaintiff on his pleading can ask for a general partition, he cannot reopen the division in Travancore. He expressly disclaimed doing so, and is bound by the deed of partition as to the properties there situated. It cannot be assumed that the division of the properties in Travancore was contrary to the law there applicable.

De Gruyther K.C. and Narasimham for the respondent. The form of the suit is not material; it was in effect a claim for a partition of the joint family properties in British India.

July 31. The judgment of their Lordships was delivered by

MR. AMEER ALI This appeal arises out of a suit brought by the plaintiff, Subramanya Ayyar, since