An oral partition between co-owners is valid and does not require a registered instrument in writing under Section 118 of the Transfer of Property Act, 1882.

JUDGMENT : The first defendant is the appellant in the second appeal which arises out of a suit filed by the plaintiff for recovery of possession of items 1 to 7 of the A schedule to the plaint or in the alternative for a partition of the 15 items listed out in the B schedule to the plaint and for an allotment of a half share therein to the plaintiff. Items 1 to 7 of the A schedule are the items 1 to 7 of the B schedule. Items 8 to 15 of the B schedule are other items. The case of the plaintiff is that the 15 items listed out in the B schedule belonged to the brothers Peddu Reddi (first defendant) and Sanjeevi Reddi, that there was a division in status between them under Hindu law in 1939 but there had been no partition by metes and bounds. In 1947, under Ex. A. 2 dated 5-6-1957, Sanjeevi Reddi sold his undivided half share in all the 15 items to one Ellappa Reddi for Rs. 4000. The further case of the plaintiff is that sometime thereafter there was an oral arrangement between Ellappa Reddi, the purchaser and Peddu Reddi by which Ellappa Reddi was to take the whole of items 1 to 7 of the A schedule; and that Ellappa in pursuance of that oral arrangement into possession of those items. Then under Ex. A. 1 dated 2-8-1949 Ellappa Reddi sold items 1 to 7 of the A schedule to the plaintiff for Rs. 2000, and it is on that footing that the plaintiff filed the suit in 1957 for recovery of possession of those items.

2. The first defendant conceded the half share of Sanjeevi Reddi in all the items in B schedule except items 5 and 7 which he alleged belonged to his wife the second defendant. He denied the partition arrangement between Ellappa and himself and further contended that in any case it would be invalid in law, because according to him a partition between co-owner would have to be evidenced by a registered deed in writing. He also pleaded that in respect of items 8 to 11, Ellappa gave up his half share in those items in discharge of a mortgage Ex. A-7 dated 7-4-1944 for Rs. 600 which had been executed by Sanjeevi Reddi in his favour.

3. The second defendant claimed items 5 and 7 and a half share in the well in item 6.

4. The plaint originally contained only the A schedule but by an amendment the alternative relief of a half share in the B schedule items was prayed in case the arrangement between Ellappa and Peddu Reddi was found either untrue or invalid. For the purpose of this alternative relief, Ellappa Reddi a legal representative, his son, was impleaded as the third defendant. He is a minor, but he filed a written statement supporting the plaintiff.

5. The learned District Munsif who tried the suit held that the arrangement between Ellappa Reddi and Pedu Reddi set up by the plaintiff was not true. He also held that the second defendant was entitled to items 5 and 7. He granted a decree only on the basis of a half share of the plaintiff in the items in B schedule excepting items 5 and 7. As a matter of fact, B schedule listed not only half the extents and therefore he declared the title of the plaintiffs half share in those items excepting items 5 and 7. But he granted a decree for possession of specific portions of items 1 to 4 of the B schedule, because the first defendant claimed only the other portions thereof (Para 38) and in the rest of the items 7 to 11 (mistake for 8 to 11) he granted a decree declaring that the plaintiff was entitled to common possession only and constructive or symbolical delivery of possession from the first defendant.

6. The first defendant preferred an appeal which was heard by the learned Subordinate Judge, and the plaintiff also preferred cross objections. The appeal of the first defendant was mainly in respect of the half share in items 8 to 11 of B schedule and that his case that Ellappa Reddi had given up those items in discharge of the mortgage Ex. A. 7 should have been accepted. His further point was that the sale deed Ex. A. 1 taken by the plaintiff conveyed to him only items 1 to 7 a