A partition deed which is merely a memorandum or record of partition of the joint family by metes and bounds which had been already effected by the intervention of Bhadralogs does not require registration under Section 17 of the Indian Registration Act.

Judgement

MOHAPATRA, J. :- The plaintiffs have brought this appeal against the judgment and decree passed by the learned Subordinate Judge of Mayurbhanj, arising out of a suit for partition in respect of -/5/4 pies interest of the plaintiffs. One Raghunath Das had four sons, Radhamohan, Suryamani, Brajmohan and Madanmohan. Plaintiff No. 1 is Brajamohan, the third son. Plaintiffs Nos. 2 and 3 are the two sons of plaintiff No. 1. Defendant No. 1 is the eldest son of Raghunath. Defendant No. 5 is the last son of Raghunath, i.e. Madanmohan. Defendants Nos. 2 to 5 are the four sons of defendant No. 1, Radhamohan.

Defendant No. 7 is the widow of Suryamani who died in the year 1931. The A Schedule properties admittedly are the ancestral properties which are nearly 100 mans, i.e. 62 acres. The properties described in schedule (B) according to the plaintiffs version were acquired from out of the joint family funds, they being in acreage nearly 100 acres. Schedule D describes the moveables and schedule E to the plaint describes the Mahajani business of the joint family as asserted by the plaintiffs.

Plaintiffs seek a partition on the ground that even though a few years prior to the institution of the suit there was a quarrel amongst the female members of the family on account of which parties separately possessed their lands there having been no partition by metes and bounds, the present suit has been brought for partition by metes and bounds, and for separate possession in respect of one-third share of the plaintiffs.

The short defence is that the suit for partition is not maintainable as there was already a partition by metes and bounds in the year 1947 and the further defence is that the properties described in schedule B being owned as self-acquisition of the defendant No. 1 the plaintiffs are not entitled to any share in respect thereof. The description of moveables and mahajani business, as given in schs. D and E was also disputed in the written statement.

2. The trial court found that there was a partition by metes and bounds in the year 1947 and, as such, the present suit is not maintainable. It is further found that the properties in dispute in Schedule B are the self-acquisitions of defendant No. 1; in any event the plaintiffs are not entitled to any share in respect of the same. It is these two issues which are being contested before us in appeal.

3. The most important matter in controversy between the parties is whether there was a partition by metes and bounds as alleged by the defendants, so that the present suit for partition is not maintainable at all or that there was mere severance of interest, that the parties enjoyed and possessed the lands separately for their convenience only, for a few years prior to the institution of the suit as alleged by the plaintiffs in which case, indeed, the suit for partition will lie and the further question will arise whether the properties described in schedule B are the self-acquisitions of defendant No. 1 or not.

Regarding the question of partition by metes and bounds, the defence version is that prior to 7-8-47 there was a quarrel amongst the female members of the family; some arbitrators were appointed as agreed upon by all parties, i.e. the three brothers, on the basis of a deed of agreement (Ext. 1) dated 7-8-47. Thereafter the arbitrators who intervened to effect a completed partition by metes and bounds did, in fact, effect a partition and the parties thereafter were completely separate.

Subsequently on 17-8-47 there was also a memorandum of the partition effected by the Bhadraloks and the document was also signed by all the parties concerned, i.e. the three brothers and also the arbitrators. There is no dispute over the position that on this question it is for the defendants to prove that there was a partition by metes and bounds. The defendants mainly rely upon the evidence of three of the Bhadraloks who had actually effected the partition and were examined on their behalf as D.Ws. 1