Registration of s document by one tenant in common.

The parties to this litigation are a Muslim mother and her two daughters. The eldest of the two daughters is the plaintiff; the mother is the first defendant and the other daughter figures as the second defendant. In 1928 the first defendant for herself and as guardian of her then minor daughters instituted a suit, O.S. No. 148 of 1928 on the file of the District Munsif’s Court, Madurai Town, for partition of their shares in certain properties and secured under the decree in the said suit for herself and her daughters the southern portion of a house and 3.34 acres of nanja land. There have been some alienations of the properties thus obtained. The present suit has been instituted by the elder daughter for partition and separate possession of the remaining properties, the house described as item 1 in the plaint schedule and an extent of 1-20 acres of land described as item 2 in the plaint schedule. The shares of the parties are 16/39 each for the plaintiff and the second defendant and 7/39 for the mother, the first defendant. The plaintiff claims the mother’s share in item 1 under a sale deed Exhibit A-2 dated 2nd April, 1942. The plaintiff therefore prays for partition and separate possession of 16/39th share in item 2 and 23/39th share in the house, item 1. In defence it is pleaded that there was an oral partition between the parties in or about 1931 wherein the house, item 1, was wholly allotted to the share of the mother, the lands being taken by the plaintiff and the second defendant for their share. It is stated that the plaintiff had parted with her share of the land, and that she had absolutely no right or interest in the suit properties which belonged to the defendants in titles as aforestated. Exclusive and adverse possession for over 30 years of the house by the first defendant and the suit land by the second defendant is set up. The sale of a portion of the house by the first defendant in favour of the plaintiff, it is stated, is a sham transaction not entitled to pass title. The trial Court upheld the defendant’s case of partition in 1931 and their exclusive possession of the suit properties for over the statutory period and non-suited the plaintiff.

On appeal by the plaintiff the learned District Judge has rejected the plea of an oral partition in 1931 put forward by the defendants. On this finding as it followed that the parties were co-owners, the learned District Judge examined the question whether there was ouster of the plaintiff with reference to the suit properties. With reference to the suit property, item 1 of the plaint schedule, it was noticed that apart from the facts that the house stood registered in the name of the first defendant in the Municipal Registry, that she paid the house tax and that she continued in occupation of the property, there was nothing to establish ouster or adverse possession of the co-owner. It was therefore held that the plaintiff would be entitled to partition and separate possession of her 23/39 share in the house. The sale by the mother under Exhibit A-2 was held as conveying to the plaintiff only the mother’s share in the house. Even the trial Court was inclined to accept the reality of the sale deed, but found against the plaintiff holding that the first defendant had exclusive possession of the house for over the statutory period, the house besides having fallen to the share of the first defendant in the oral partition. Coming to the second item, while of the view that the mere fact that the kist for the second item had throughout been paid by the second defendant would not deprive the plaintiff of her rights therein, the learned District Judge thinks that the execution of a duly registered simple mortgage in 1947 by the second defendant in favour of the Co-operative Society of Arumbanur brought about ouster. The learned District Judge is perfectly conscious that there has been no transfer of possession as in Palani Pillai v. Ibrahim Rowther1. The learned Distr