An unregistered partition deed can be read in evidence to prove the factum of partition and the nature of possession of the defendants, and Section 91 of the Evidence Act does not bar the leading of other oral or documentary evidence to prove the factum of partition and nature of possession.

1. This first appeal has been brought by the plaintiff against the judgment and decree of the learned Subordinate Judge 1st Class, Bhatinda, dated May 25, 1964, dismissing his suit.

2. The plaintiff filed a suit for partition of his one-fourth share and separate possession in the properties in dispute situate at various places with the allegations that the parties formerly formed joint Hindu family and that the moveable properties consisting of clothes, cash and ornaments had already been partitioned long before but the immovable properties continued to be joint and had not been partitioned by metes and bounds.

3. The suit was contested by the defendants who pleaded that the partition of the suit properties had already taken place in the year 1992 Bk., during the lifetime of their father Gainda Mal and that a memorandum of that partition containing the detailed list of the properties which fell to the share of each of the parties had also been prepared under the signatures of the parties on May 9, 1950. On the pleadings of the parties following issues were framed :-

1. Whether the suit is within time ?

2. Whether the suit is properly framed for the purposes of court-fee?

3. Whether Gian Wati is a necessary party to the suit? If so, what is its effect?

4. Whether a shop, a room situated in Lehra Bazar, Phul and land in the area of village Gill is not a joint Hindu family property ?

5. Whether the property in dispute was partitioned in the month of Poh, 1392 Bk., during the lifetime of Gainda Mal and the parties are in possession of their respective shares since then?

6. Whether property mentioned in paragraph 5 of the plaint was sold by Sant Ram father of defendants Nos. 3 and 4 as sole owner thereof, after the said partition ?

7. Whether the plaintiff is entitled to get the property in suit partitioned to the extent of 1/4th share therein?

8. Relief.

4. After recording evidence of the parties, the trial Court decided issues Nos. 1 to 4 in favour of the plaintiff and the remaining issues against him and dismissed the suit. Aggrieved by the judgment, the plaintiff has come up in this appeal.

5. Mr. M.R. Agnihotri, the learned counsel for the appellant, has challenged the findings of the trial Court on issues Nos. 5 and 7 only. The findings of the trial Court on the other issues are hereby confirmed.

6. The challenge against the finding on issue No. 5 raises some interesting questions of law as to whether a partition deed found to be inadmissible in evidence for want of registration can be read in evidence to prove the factum of partition and the nature of possession of the defendants and whether Section 91 of the Evidence Act bars the leading of other oral or documentary evidence to prove the factum of partition and nature of possession.

7. As noticed above, the defendants sought to prove in evidence a document dated May 9, 1950, claimed to be a memorandum of partition. This document was held by the trial Court to be a partition deed and being unregistered inadmissible in evidence. However, relying on oral and other documentary evidence produced by the defendants, the trial Court held that complete partition of whole of the joint property of the parties had taken place in the year 1992 Bk., and they were in separate possession of their respective shares since then. The finding has been challenged by the learned counsel on the ground that the evidence oral and documentary relied upon by the trial Court was not admissible in evidence and was hit by the provisions of Section 91 of the Evidence Act. The learned counsel has further argued that the said document being inadmissible for want of registration, could not be taken into consideration even to prove the factum of partition and the nature of possession of the parties on the property in dispute. In support of his contention, the learned counsel has relied on the following observations of the Division Bench of Saurashtra High Court in Smt. Zaveri V/s. Jitu, AIR 1954 Sau 4