An unregistered partition deed is not admissible in evidence to prove the terms of the partition, but other evidence can be adduced to prove the factum of partition.

GOPALAKRISHANAN NAIR, J.

( 1 ) THIS is an appeal from the Judgment of the Subordinate Judge at Eluru dismissing a suit for partition instituted by the plaintiff-appellant. The plaintiff claimed that he and his son, the defendant, constituted a joint Hindu family and that the movable and the immovable properties described in the plaint A, B, and C Schedules were coparcenary properties. He stated, however, that on 22-5-1958, the defendant coerced him to sign a document which purported to be a deed of partition of the joint family properties. This documents was written by D. W. 1, the karnam of the village. In spite of plaintiffs protests, his son forced him to sign it. This took place in the presence of the Karnam and the plaintiffs son-in-law. The plaintiff never agreed to the partition and the document which he was coerced to sign is not binding on him. Subsequently, the plaintiff was made to endorse in favour of the defendant, the promissory notes mentioned in the Plaint C. Schedule. This also was repudiated by the plaintiff as invalid and devoid of legal effect. Besides, the document of partition was totally invalid for want of registration. For these reasons, the plaintiff claimed that the family continued to be joint and possessed of the properties in the suit. He, therefore, asked for a partition of the properties into two equal shares and allotment of one such share to him.

( 2 ) THE defendant denied many of the allegations in the plaint. According to him, the plaintiff willingly and voluntary effected a partition of the joint family properties and caused D. W. 1 the karnam, to drew up a partition deed allotting specific items of properties of each of the two coparceners. Actual possession of their respective shares was also taken by the plaintiff and the defendant. Ever since, the plaintiff and the defendant have been in separate possession and exclusive enjoyment of their respective shares of the properties and each has been paying separately land revenue on his share. The defendant sold some specified items of land which were allotted to his share. H also executed a deed of exchange in respect of another item. The promissory notes mentioned in the plaint C Schedule were made over to him by the plaintiff as part of an out and out partition between them. The imputation of coercion, compulsion or pressure made by the plaintiff was denied as false. The defendant contended that the suit itself was not maintainable because it sought a second partition of the properties which had been previously partitioned in May, 1958 by metes and bounds.

( 3 ) THE learned Subordinate Judge framed the Following three important issues : 1. " Whether the document dated 22-5-1958 relating to partition between the plaintiff between the plaintiff and the defendant and the endorsements of transfer on the promissory notes were executed by the plaintiff under coercion? 2. Whether partition in May, 1958 set up by the defendants is true, valid and binding on the plaintiff? It is not necessary to refer to the other issues which are of on moment in this appeal.

( 4 ) THE learned Subordinate Judge found issue 1 clearly against the plaintiff. On issue No. 2 he recorded a findings hat a partition did in fact take place in May 1958, between the plaintiff and the defendant. On the third issue, he held that the suit for partition was not maintainable in view of the factum of prior partition of May, 1958. He considered that the circumstance of the document of partition not being registered did not preclude proof of the factum of prior partition by other evidence de hors the partition document. He therefore dismissed the suit, and the plaintiff has appealed.

( 5 ) WHEN the appeal came up for hearing before a Division Bench of this Court, the appellants learned counsel submitted that a decision of a Division Bench of the Madras High court in Subbu Naidu v. Varadarajulu Naidu, (1947) 1 Mad LJ 90 : (AIR 1948 Mad 26) and that of another Division Bench of this cou

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