JUDGMENT
Y. Bhaskar Rao, J.
1. Plaintiffs are the appellants herein. Defendant-Respondents 2 to 4 are the sons of the 1st defendant while 5th and 6th defendant-respondent are the sons of 2nd and 4th defendants respectively. The 3rd defendant is the father of the plaintiffs.
2. The suit filed was for partition of the plaint ‘A’ and ‘B’ schedule properties and allotment of one-sixth share therein to the plaintiffs on the ground that the plaintiffs and defendants constitute a Joint Hindu Family. The main plea of the defendants was that pursuant to the agreement, Ex.X-1, entered into by Defendant Nos. 1 to 4- to refer the matter to arbitration for purposes of partitioning the properties between D-3 on one hand and D-1, D-2, and D-4 on the other Ex. B-l award dt. 5-6-70 was made and as per the said award the properties covered by ‘A’ and ‘B’ schedules to the written statement filed by the defendants were allotted to the 1st, 2nd and 4th defendants as one unit and the 3rd defendant as other respectively and therefore the plaintiffs were only entitled to their share along with D-3 in the ‘B’ schedule properties. Accepting this claim of the defendants, the trial Court decreed the suit by alloting to the Plaintiffs 2/3rd share in the ‘B’ schedule properties appended to the written statement filed by the defendants and 1/6th share in the moveable properties noted in the inventory prepared by the Commissioner. Hence this appeal.
3. The main contention advanced by Mr. K.V. Reddy, the learned counsel for the appellants is that Ex.B-1 being a document not registered cannot be looked into not only for purpose of finding out which item of property was allotted to which party but also to prove the factum of partition in view of the bar imposed by Section 49 of the Registration Act and that Section 91 of the Evidence Act prohibits letting in any evidence to prove the contents of Ex.B-1. Therefore according to the learned counsel the Court below erred in upholding the share alloted to D-3 under Ex.B-1, viz., ‘B’ schedule properties appended to the written statement filed by the defendants and calls for interference by this court.
4. The main question therefore, that arises for consideration in this appeal is whether the sons of a coparcener consequent upon severance in status of the Hindu Joint Family, there being no partition by metes and bounds are equally co-owners along with the erstwhile coparceners (who are co-owners after the division in status) of the joint family properties.
5. The relevant facts 4, brief are; Defendants 1 to 4, being father (D-1) and sons (D-2 to D-4), entered into Ex.X-1 agreement to refer the matter for partition of the joint family properties to an arbitrator and consequent thereupon Ex. B-l award was made, whereunder the properties covered by ‘B’ schedule appended to the written statement of the defendants fell to the share of the 3rd defendant (father of the plaintiffs), while those covered by ‘A’ schedule were allotted to D-1, D-2 and D-4 put together. The claim of the defendants is that since the time of Ex.B-1, the 3rd defendant was in exclusive possession of his share and was enjoying the same in his own right by paying the necessary cists under Ex.B-2 to B-18 and therefore there was a total disintegration and final partition between D-3 on one hand and other defendants on the other of the Joint Hindu Family properties, thereby disentitling the plaintiffs from claiming a share in the properties of defendants other than D-3, their own father. As against this the contention of the learned counsel for the appellant-plaintiffs is that Ex.B-1 is hit by Section 49 of the Registration Act and therefore the same cannot be looked into nor it is admissible in evidence for want of registration. He also submitted that no evidence in proof of the terms of Ex.B-1 as to which item was allotted to which party can be permitted to be let in, in view of the bar imposed by the Section 91 of the Evidence Act. According to the learned counsel even if Ex.B-1 is held to be admissible to prove the factum of partition and severance in status among D-1 to D-4 the plaintiffs being the sons of D-3 (one of the coparceners along with D-1, D-2 and D-4) are equally, just as D-3 is, co- owners with D-1, D-2 and D-4, in the joint family properties and therefore are entitled to their 1/6th share in the same. The contention, on the other hand of the learned counsel appearing for the defendants is that Ex.B-1 apart from embodying the list of properties allotted to the parties establishes a partition by metes and bounds and not simply a severance in status between D-1, D-2 and D-4 on one hand and D-3 on the other and therefore there was an absolute disintegration and final partition disentitling the plaintiffs to make any claim in the properties allotted to D-1, D-2 and D-4, and that the plaintiffs can only make a claim for partition as coparceners against D-3 their father.
6. To appreciate the respective contentions it is at the outset, necessary to note the nature of rights in the joint family coparcenary property of the members of the joint family and the rights of the coparceners in the property after severance in status of the joint family.
7. The essence of coparcenary under the Mithakshara law is unity of ownership. The ownership of coparcenary property is in the whole body of coparceners. The interest of a coparcener is a fluctuating one capable of being enlarged or deminished by deaths and births in the family. The right of each coparcener, until actual partition by metes and bounds, consists in common possession and common enjoyment of the coparcenary property. In State Bank of India v. Ghamandi Ram, the Supreme Court dealing with coparcenership narrated the incidents thereunder as follows:
“The incidents of co-parcenership under the Mitakshara law are: first the lineal male descendants of a person upto the third generation acquire on birth ownership in the ancestral properties of such person secondly that such descendants can at any time work out their rights by asking for partition, thirdly that till partition each member has got ownership extending over the entire property, conjointly with the rest, fourthly that as a result of such co-ownership the possession and enjoyment of the properties is common: fifthly that no alienation of the property is possible unless it be for necessity without the concurrence of the coparceners, and sixthly that the interest of a deceased member lapses on his death to the survivors.”
Again in Kalvani v. Narayanan, the Supreme Court referring to the import and meaning of the word ‘partition’ held.
“Partition is a word of technical import in Hindu Law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition irrepsective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject matter. This may at any time be claimed by virtue of the separate right. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.”
Before the Rajasthan High Court in Teeja Devi v. Noratmal, the question raised is regarding the rights of coparceners that concluded their status of the Joint Hindu Family. It is held therein:
“Before the joint property is partitioned by metes and bounds, the coparceners who have concluded their status of the Joint Hindu Family can enjoy that property as tenants-in-common and unless the share of each of the coparcener is severed by partitioning the property by metes and bounds a coparcener cannot be said to have lost the entire interest in the property. Thus the person having 1/48th share in the property cannot say as to which portion of the property will come to his share on the partition by metes and bounds and therefore his interest to mat extent continues in the property”.
Therefore it is clear from the above that members of coparcenary can at any time work out their rights by asking for partition and that as a result of the property being held jointly no alienation of the property is possible and that interest of a deceased member lapses on his death to the surviving coparceners. In cases where there is severance in joint status the coparceners will hold the property as co-owners of tenants-in-common and the right of survivorship is put an end to opening succession to heirs by inheritance. These in short are the subtle distinctions in the rights of the coparceners before severance of joint status and after severance thereof.
8. At this juncture it is necessary to find out whether defendants 1 to 4 are continuing as coparceners with or without severance in joint status. The claim of the defendants is that there was a partition by metes and bounds between D-1, D-2 and D-4 on one hand and D-3 on the other as per Ex.B-1 and therefore the suit of the plaintiffs against D-1, D-2 and D-4 to D-6 is not maintainable. On the other hand the contention put forth by the learned counsel for the plaintiffs is that Ex.B-1 cannot be looked into for want of registration Under Section 49 of the Registration Act, and Section 91 of the Evidence Act also prohibits letting in any evidence to prove the contents of Ex.B-1. The submission of the learned counsel is that Ex.B-1 is an unregistered document and therefore hit by Section 49 of the Registration Act for being admitted in evidence even for purposes of proving the factum of partition.
9. No doubt in Muthyala Reddy v. Venkata Reddy, a Full Bench consisting of Five Judges of this Court held:
“34. In our view 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.”
The Full Bench further held that the document, though unregistered, can however be looked into for the purpose of establishing a severance in status. This Full Bench had in its turn noted with approval the view expressed by another Full Bench earlier in Kanna Reddy v. Venkata Reddy, .
10. In Roshon Singh v. Zile Singh, AIR 1988 SC 881 the Supreme Court while considering the necessity to effect registration of an instrument of partition held in paragraph 9:
“Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872. Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition.”
In view of the two decisions of this Court rendered by two Full Benches and also of that of the Supreme Court, Ex.B-1 cannot be admitted into evidence to prove which item of property has fallen to which of the defendants as it is not a registered instrument. However, Ex.B-1 according to the decisions of the Full Benches, can be looked into to prove the factum of partition. Even this is not permissible according to the decision of the Supreme Court in Roshan Singh’s case, AIR 1988 SC 881 unless Ex.B-1 can be termed to be a simple list whereunder different items of property were partitioned between D-3 on one hand and D-1, D-2 and D-4 on the other. Even otherwise also it is well established principle of Hindu Law, as hold by their Lordships of the Privy Council and the Supreme Court, 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. (Vide Suraj Narain v. Iqbal Narain, (1912) 40 Ind. App. 40 (PC) Giraj Bai v. Sadashi V Dundhiraj (AIR 1916 PC 104) and Raghavamma v. Chenchamma . This communication of intention could be done orally or by a notice in writing to the other coparceners. If the intention is expressed by reducing the same into writing such a document, though unregistered, is admissible and can be looked into. In the case on hand, Ex.X-1 is an agreement entered into between D-3 on one hand and D-1, D-2 and D-4 on the other to refer the matter to arbitration for purposes of bringing in a partition between them. This agreement, Ex.X-1, sufficiently reflects the expression that D-3 and other defendants (D-1, D-2 and D-4) intended to have a partition between themselves, and therefore de hors Ex.B-1, the agreement Ex.X-1 would prove the factum of partition and accordingly there is severance in joint status between D-1, D-2 and D-4 on one hand and D-3 on the other. In Umatyorupagam v. Palanarayana, AIR 1915 Mad. 892 the Madras High Court held:
“Where an agreement entered into by the members of a Joint Hindu Family provided that all the immoveable and moveable properties relating to the copracenary were to be divided as from that date of the agreement and that from that time forward separate accounts were to be kept by the coparceners…. Held: that the intention of the parties was to divide then and there and not to wait until a complete division of the properties had been effected.”
In Rukhmabai v. Laxminarayana, the Supreme Court dealing with an unregistered instrument of partition, held that ‘an unregistered document can effect separation in status’.
11. Paragraph 480 of Mayne’s Treatise on Hindu Law & Usage (13th Edition) states:
“480. Arbitration: A reference to an arbitrator or a claim before an” arbitrator or an agreement appointing a person to partition the property would constitute a separation from that date. Severance is not affected by revocation of arbitration”.
From these decisions and notes it is amply clear that Ex.X-1 agreement by itself would establish the severance of joint status between D-3 on one hand and D-1, D-2 and D-4 on the other.
12. When once there is severance in status, the parties thereafter cease to be members of the joint family and hold the property as co-owners. This established principle is reiterated in Muthyala Reddy’s case (4 supra) by the Full Bench of Five Judges of this Court. The decision of the Privy Council in Balakishen Das v. Ram Narayan Sahu, (1903) ILR 30 Cal. 738 (PC) is yet another authority for this proposition of law.
13. In so far as letting in evidence to prove the contents and shares allotted to D-3 on one hand and D-1, D-2 and D-4 on the other, is concerned, no evidence absolutely-either oral or documentary – is permissible in view of the bar imposed by Section 91 of the Evidence Act. This is a settled proposition of law.
14. From the above discussion it is to be concluded that there was a severance in joint status between D-3 on one hand and D-1, D-2 and D-4 on the other consequent upon Ex.X-1 agreement and therefore there was an end to coparcenary between them, giving place to co-wonership enjoying the properties on lines similar to tenants-in-common. From this it follows that D-3 has been continuing as a co-owner along with D-1, D-2 and D-4 even after the severance in joint status. As a natural corollary, the plaintiffs, who are the sons of and coparceners with D-3, would be co-owners along with D-1,,D-2 and D-4 (the erstwhile coparceners) of the joint family properties. Accordingly, the plaintiffs are entitled to one-sixth share in the plaint ‘A’ schedule properties. In so far as movables are concerned, they are entitled as held by the trial Court to one-sixth share in the items noted in the inventory prepared by the Commissioner. The judgment and decree of the Trial Court are accordingly modified in so far as the share of the plaintiffs in the immoveable properties is concerned. The appeal is allowed as indicated supra. There shall, however, be no order as to costs.