The main legal point established in the judgment is the admissibility of unregistered documents as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by a registered instrument.

JUDGMENT :

Dr. A.K. Rath, J.

01. This is a plaintiff’s appeal against reversing judgment. The suit was for partition along with a prayer under Sec.4 of the Partition Act.

02. The case of the plaintiff is that the suit land is the ancestral property of the plaintiff and defendant nos.1 to 7. The residential house of the parties stands over the same. The suit properties were not partitioned amongst the co-sharers by metes and bounds. The parties possessed the suit land according to their convenience. Defendant nos.5 and 7 had transferred the suit schedule land to the defendant no.8 by means of a registered sale deed dated 4.11.1981 without his consent. Defendant no.8 was a stranger to the family. With this factual scenario, the suit was instituted seeking the reliefs mentioned supra.

03. The contesting defendant no.8 filed written statement stating therein that there was a partition between the plaintiff and his co-sharers much prior to his purchase. In the partition, plot no.1042 fell to the share of defendant nos.5 to 7. The plaintiff and other co-sharers have no right, title and interest over the suit plot. The suit land is not liable to be partitioned. The plaintiff is not entitled to re-purchase the said land under Sec.4 of the Partition Act. It is apt to state here that defendant no.8 died during pendency of the suit, whereafter his legal heirs have been substituted as defendant nos.8(a) to 8(d). They adopted the written statement filed by the defendant no.8. The other defendants were set ex-parte.

04. On the interse pleadings of the parties, learned trial court struck eight issues. Parties led evidence. Learned trial court held that the suit property is the ancestral property of the plaintiff. There was no partition between the co-sharers. Held so, it decreed the suit. Feeling aggrieved, the defendant no.8 filed T.A. No.24 of 1988 before the learned Second Additional District Judge, Cuttack. Learned lower appellate court placing reliance on the unregistered partition deed, Ext.E, record of right, Ext.F, rent receipts, Ext.K & K/1, and the evidence on record and pleadings held that there was a prior partition between the parties. The sale deed is valid. Held so, it allowed the appeal.

05. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2 and 3 of the memorandum of appeal. The same are:

“(ii) Whether Ext.E (unregistered partition deed) is admissible in evidence to prove partition ?

(iii) Whether the validity of Exhibit-E can be accepted in view of Registered partition deed Ext.1 which was executed on 23.6.70 ?”

06. Heard Miss Soumya Mishra, learned counsel for the appellant and Mr. D.P. Mohanty, learned counsel for the respondents.

07. Miss Mishra, learned counsel for the appellant submits that the suit schedule property is the ancestral property of the plaintiff. There was no partition between the co-sharers. Learned lower appellate court committed a manifest illegality and impropriety in placing reliance on the unregistered partition deed, Ext.E and held that there was a partition between the parties. She further submits that the unregistered partition deed can be relied upon by the collateral purpose. There is no evidence on record that the suit schedule property was partitioned between the co-sharers by metes and bounds. She relies on a decision of the apex Court in the case of S. Kaladevi vs. V.R. Somasundaram and others, (2010) 5 SCC 401.

08. Per contra, Mr. D.P. Mohanty, learned counsel for the respondents submits that the suit schedule property was partitioned between the co-sharers. Thereafter the co-sharers, namely, defendant nos.5 and 7 alienated the suit schedule property in favour of the defendant no.8. The alienation was for legal necessity. There is no perversity in the finding of the learned lower appellate court.

09. In S. Kaladevi (supra), the apex Court held:

“10. Section 17 of the 1908 Act is a disabling section. The documents defined in clauses (a) to (e) therein require r