Sir John Beaumont.-This is an appeal from the judgment and decree of the High Court of Judicature at Lahore, dated the 15th July, 1942, which allowed in part an appeal from, and modified the judgment and decree of the Senior Subordinate Judge of Gurdaspur, dated 3rd March, 1941.

It is common ground that prior to 1934 the appellant and respondent, who are full brothers, their father Bhodu Shah, and their step-brother Wadhawa Mal had formed a joint Hindu family, and that in 1932 Wadhawa Mal instituted a suit for partition. On 27th December, 1934, Bhodu Shah having died during the pendency of the suit, Wadhawa Mal on the one hand and the appellant and respondent on the other hand entered into a compromise whereby one-third of the family property was assigned to Wadhawa Mal and two-thirds to the appellant and respondent.

The suit in which this appeal arises was instituted by the appellant on 21st December, 1939. In his plaint he alleged that after the partition of 1934 he and the respondent remained members of a joint Hindu family, the respondent as the elder brother being the karta. The appellant claimed partition of the joint family property, possession of his share, and the rendering of accounts by the respondent. The respondent in his written statement alleged that partition was effected in 1934 between all the members of the family and that thereafter he and the appellant were divided in status, but remained joint owners of their share of the family property until 21st February, 1939; that on that date the bulk of the property was physically divided between the two brothers, though part still remained in joint ownership, and that two memoranda were prepared in duplicate showing the division arrived at and what property continued joint, one memorandum being retained by each brother.

The learned trial Judge framed issues of which the first two were:

1. Did the parties of this suit constitute a joint Hindu family even after the separation of their eldest brother Wadhawa Mal?

2. Did the parties of this suit separate in 1939 and therefore the suit in the present form does not lie?

The learned judge answered the first issue in the affirmative and the finding that the appellant and respondent remained joint after 1934 has not been challenged before the Board. The second issue, which the learned Judge answered in the negative, is the material one on this appeal.

The learned Judge held in the first place that the memoranda referred to in the written statement, which for purposes of identification were marked “C” and “D” constituted an instrument for partition and could not be given in evidence since they were neither stamped nor registered. He gave the respondent the opportunity of paying the necessary stamp duty and penalty, but the respondent declined to make the payment. The alleged fact that the documents have been stamped since judgment is immaterial.

Section 35 of the Indian Stamp Act, 1899 provides: — “No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.” The provisos do not apply in this case.

Section 49 of the Indian Registration Act provides that no document required to be registered under section 17 shall affect any immoveable property comprised therein or be received in evidence of any transaction affecting such property. It is unnecessary to consider the effect of this section because the documents in question not being stamped, the wider prohibition contained in the Stamp Act applies, and the learned Judge rightly excluded the documents In the absence of written evidence of partition the learned Judge considered that the oral evidence called by the respondent to support a partition in February, 1939, was unsatisfactory, and accordingly he held the parties to have been joint ax the date of

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