ORDER
B. Sundershan Reddy, J.
1. The plaintiff in O.S. No. 38 of 2000 on the file of the learned Junior Civil Judge, Narasannapeta is the petitioner in this Civil Revision Petition directed against the order dated 26th March, 2002 made in O.S. No. 38 of 2000 by the learned Judge overruling the objection raised by the petitioner-plaintiff as to the admissibility of un-registered partition deed dated 19-1-1985 filed by the respondent-defendant during the course of cross-examination of PW1.
2. During the course of cross-examination of PW1, he was confronted with a document dated 19-1-1985. PW1 readily admitted his signature on the said document dated 19-1-1985. The counsel for the petitioner-plaintiff, however, raised an objection contending that the said document cannot be marked as the same is insufficiently stamped and is not registered. The learned Judge upon perusal of the recitals of the said document found the same to be a deed of partition. There is no dispute whatsoever that the said deed of partition, which is now sought to be marked by the respondent-defendant, is neither stamped properly nor registered.
3. The learned Judge, however, overruled the said objections and held that the said document, though unregistered, can be looked into for the limited purpose of establishing a severance in status though that severance would clearly affect the nature of possession. The learned Judge further found that the said document can be used for the limited and collateral purpose of showing the division of properties between the parties and accordingly held that the document dated 19-1-1985 is admissible for collateral purposes.
4. The short question that falls for consideration in the instant case is whether the unstamped and unregistered partition deed dated 19-1-1985 can at all be received into evidence and if so for what purposes?
5. The question that falls for consideration is not res integra. In Muthyalareddy v. Venkatareddy (FB) a Full Bench of this Court held that where a partition takes place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can, however, be looked into for the purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family who from thence onwards, hold it as co-tenants. That, for a severance in status, all that is required is a communication to the other members of the joint family, of an unequivocal intention to separate. This communication of intention could be done orally or by a notice in writing to the coparceners, or by other means depending upon the facts and circumstances of the case. If the intention is expressed by reducing the same to writing such a document, though unregistered, is admissible and can be looked into, as long as it is not the source of title of any of the properties which each of the erstwhile coparceners hold as a result of that partition. (Emphasis is supplied).
6. A Division Bench of Madras High Court in C.S. Kumaraswami v. A. Gounder, , after an elaborate consideration of the matter and referring to the earlier precedents including the judgments of the Privy Council stated the law in the following terms:
“A partition in a joint Hindu family may denote either of two things: (i) a division in status as between the members of the coparcenary; and (ii) an actual division of the properties belonging to the joint family by metes and bounds as between the different members of the family. The expression ‘partition’ has been used indiscriminately to denote either one or the other of the two things. Once a partition of the properties by metes and bounds has taken place, naturally there will be the consequential transaction of the parties, to whom the properties have been allotted separately, taking possession of these properties. Thus it will be seen that in the case of an express, completed partition there will be three different stages- (i) the stage of effecting a division in status, (ii) the stage of dividing the properties by metes and bounds, and (iii) the stage of each party taking possession of the properties allotted to his share. As far as these three stages are concerned, it is conceded, having regard to the decided cases, that each and every one of them can be effected orally without there being a document. Even if there is a written document in respect of the first and third stages, then also it is conceded that the document does not require registration, because neither the division in status nor the actual taking possession of the properties can be said to create, declare, assign, limit or extinguish any right, title or interest to or in immovable property. Therefore, it is only with regard to the second stage, namely, division of properties in different shares and allotment thereof to the various members, if the same is reduced to writing, it requires registration under Section 17(1)(b) of the Act. Under the Hindu law, it is well settled that, severance in status can take place either by the unilateral declaration of one of the coparceners or by agreement between all the coparceners. Where severance is effected as above, it is not a transaction which requires any writing and even if it is effected by means (if any instrument in writing, that will not fall within the scope of Section 17(1)(b) of the Act. Similar will be the position with regard to taking possession of the properties. From the very nature of the case, once a division of the properties by metes and bounds has taken place as between the members of a coparcenary and the parties take possession as exclusive owners of the respective items allotted to them, such a partition assumes a division in status having taken place between the parties. Therefore, though an unregistered partition deed cannot be admitted in evidence to prove the terms of the partition, it can certainly be admitted in evidence for proving the division in status and the fact of partition, as pointed out by several decisions based on the judgment of the Privy Council in Rajangam Ayyar v. Rajangam Ayyar, 50 Ind App 134 = (AIR 1922 PC 266). Similarly, taking possession of the shares allotted to each one of the parties at the partition will be a purpose collateral to the purpose of partition and such taking possession not creating, declaring, assigning, limiting or extinguishing any right, title or interest to or in immovable property, will not require registration, and therefore an unregistered deed of partition can be used for the collateral purpose, namely, for proving the nature and character of the possession of the respective items of properties in the hands of the members of the coparcenary. In Bai Gulabbai v. Sri Datgarji, (1907) 9 Bom LR 393, it was pointed out that a collateral purpose is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. Therefore a collateral transaction within the meaning of the proviso to Section 49 of the Act means a transaction other than the transaction affecting immovable property, but which is in some way connected with it. In Ramlaxmi v. Bank of Baroda, the Bombay High Court pointed out–
‘The expression ‘collateral’ transaction is used not in the sense of an ancillary transaction to a principal transaction or a subsidiary transaction to a main transaction. The root meaning of the word ‘collateral’ is running together or running on parallel lines. The transaction as recorded would be a particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of the transaction and what may be called a collateral purpose, the fulfillment of that collateral purpose would bring into existence a collateral transaction, a transaction which may be said to be a part and parcel of the transaction but nonetheless a transaction which runs together with or on parallel lines with the same.
An obvious illustration of this is the transaction which is recorded in the memo of petition before us. The transaction therein recorded was a transaction of partition of the movable and immovable properties belonging to the joint family. These properties were allotted to the shares of the respective members of the family. A partition was in fact effected by this document and that transaction took place under the terms of the document itself. The memo of partition thus required registration and not being registered could not be admitted in evidence under the terms of Section 49, Registration Act. There was, however, involved in this transaction itself a collateral transaction, viz., that of the severance of the joint status which transaction by itself did not require to be registered by any law for the time being in force. A severance of joint status could be effected under Hindu law in various modes, one of the modes being an unequivocal expression of an intention to separate. A partition could be effected orally as well as by a written document, and it would be open to a party to prove that there was a partition or severance of joint status effected between the parties without its being effected by a registered instrument. A partition i.e., severance of joint status thus would be a collateral transaction, and would certainly fall within the proviso to Section 49 of the Registration Act.”
It is further observed:
“….. .even though an unregistered deed of partition, as in the present case, is not admissible in evidence for proving the terms of the partition as well as the items of the properties that were allotted to the appellant on the one hand and his deceased elder brother on the other, certainly it can be used as evidence for the purpose of showing the character in which the deceased…….. was in possession of the properties allotted to his share…… ” (Emphasis is of mine).
7. A learned single Judge of this Court in K. Vijaya v. K. Venkataiah, , relying upon the Full Bench decision of this Court in Muthyalareddy (supra) and the Division Bench decision of the Madras High Court in C.S. Kumaraswami (supra) held that it is only with regard to the stage of dividing the properties by metes and bounds and allotment thereof to the various members, if the same is reduced to writing, it requires registration under Section 17(1)(b) of the Registration Act. An un-registered partition deed though not admissible to prove the terms of the partition can be admitted in evidence for proving the division in status and the nature and character of the possession of the shares, these being collateral purposes.
8. In the instant case, the learned Judge having overruled the objections ordered the document in question to be received and marked in evidence for collateral purposes. The suit on hand is not a suit for partition and separate possession of any immovable properties. The suit is only for declaration of title and perpetual injunction. It is under those circumstances, the learned Judge came to the conclusion that the document dated 19-1-1985, though unregistered, for a limited collateral purpose to prove the division in status, taking of possession and the nature and character of the possession of the shares allotted since these being collateral purposes, can be received into evidence.
9. In the circumstances, I am of the considered opinion that the document dated 19-1-1985 has been rightly received into evidence for collateral purposes. The said document, however, cannot be uitlised to prove the stage of dividing the properties by metes and bounds. The documents can certainly be uitlised for the collateral purposes, viz., to prove the stage of effecting a division in status and the stage of parties taking possession of the properties allotted to them.
10. For the aforesaid reasons, I do not find any merit in this civil revision petition. The same shall accordingly stand dismissed. No order as to costs.
11. Consequently, the interim stay earlier granted by this Court shall accordingly stand vacated.
12. The respondent-defendant in spite of receiving the notice failed to respond and enter her appearance. In the circumstances, the Court has requested Sri Y. Ramathirtha, Advocate to assist the Court as Amicus Curiae. The Court acknowledges the invaluable assistance rendered by the learned Amicus Curiae.