The fact of partition can be proved by oral and documentary evidence, even if the partition deed is unregistered and inadmissible under the Registration Act.

WANCHOO, C. J.:-

This is an appeal by Tejraj and another against the judgment and decree of the Civil Judge, Merta, by which the suit of the plaintiffs-appellants was dismissed.

2. The case of the plaintiffs as put forward in the plaint was that they and the defendants were descendants of a common ancestor Jethmal. The admitted pedigree of the parties is as follows:

The plaintiffs went on to say that Jethmal had four houses, the list of which was attached to the plaint. It was also stated that Sohanlals widow had ornaments weighing 25 tolas of gold and 200 tolas of silver, and these were with Mohanlal, and the list of them was also attached as appendix 2.

It was added that Mohanlal was in possession of other properties of Jethmal, the list of which was given in appendix 3. The case of the plaintiffs was that after the death of Jethmal his sons began to live separately, but the property was not divided, and Mohanlal, who was the eldest, was mostly looking alter the property. Various members of the family were in possession of various houses or parts of them.

Lately disputes had arisen between the members of the family, and therefore it became necessary to file the suit. The plaintiffs prayed for division of the properties mentioned in the three appendices by metes and bounds.

3. The suit was resisted by the defendants, and their case was that there had been a complete division in the family in St.1975 after the death of Jethmal, and the brothers took possession of the properties allotted to them, and had been dealing with those properties as their exclusive property ever since. The partition was effected through Farkhatis executed by the brothers, and by the widow of Sohanlal who was also given a share in the property.

Consequently the defendants prayed that the suit be dismissed as there was no question of a second partition between the sons and grandsons of Jethmal about the property left by Jethmal. It was added further that Jethmal on his death had left seven houses and a shop and not merely four houses, and all the property movable and immovable had been divided, some during Jethmals life-time and the rest after his death.

4. The main issue therefore in the case was whether there had been a partition between the sons of Jethmal, and the widow of Sohanlal in St.1975 or not. This issue was decided against the plaintiffs. Hence this appeal.

5. The only point, that requires decision in this appeal, is whether there had been a partition between the sons of Jethmal in St.1975. The burden of proving this was on the defendants, and they relied on the Farkhati of St.1975 Ex.D-6, and on oral and documentary evidence to show that there had been partition soon after the death of Jethmal, and the sons of jethmal had been dealing with the properties which came to their shares as their exclusive property.

Objection was, however, taken on behalf of the plaintiffs to the admissibility of the Farkhati Ex.D-6 on the ground that it was not registered. The trial Court has rightly held that this document required registration according to the law prevalent in Marwar in St. 1975, and could not therefore be admitted in evidence. The question then arose whether other evidence could be led to prove the fact of partition, in the face of S.91, Evidence Act, and the lower Court held that such evidence could be led, and allowed the defendants to lead other oral and documentary evidence to prove that there had been partition in St. 1975.

It has been strenuously contended before us that this view of the lower Court is wrong, and other evidence, both oral and documentary, is inadmissible in view of S.91, Evidence Act.

6. We are of opinion that there is no force in this contention. The relevant provision of S.91 is as follows:

"When the terms of a contract, or of a grant or of any other disposition of property, have been reduced to the form of a document, and in all cases m which any matter is required by law to be reduced to the form of a document, no evidenc