Permanand v. Laxminarain — 1949 DIGILAW 28 (MP)

JUDGEMENT : KHAN, J. The plaintiffs filed a suit No.9 of 1949 in the Court of District Judge, Guna for the recovery of property in dispute on the ground that it was a joint family property, and in the alternative it was stated that if the property was not joint, then they were heirs to the last full owner (Parshadilal) and as such entitled to succeed him. The suit was, however, dismissed on 29-8-1949 by the learned District Judge, Guna. Aggrieved by this decision, this is plaintiffs' first appeal. 2. That plaintiffs' suit shortly stated is that Chaturbhuj had three sons: Ramchand, Thakurdas (plaintiff) and Parshadilal. Ram Chand died issueless. Thakur Das (plaintiff) had one son Parmanand and Parmanand had two sons, Tulsiram and Vallabh Das, both of whom are minors. In this case Thakur Das, his son Parmanand and his two grandsons are the plaintiffs. Parshadilal had no son and in consequence he adopted Laxminarain, who is in possession of Parshadilal's property and is a defendant in the case. The following sketch will show the relation in which the parties stand to each other: It is stated in the plaint that Chatur Bhuj and his three sons lived jointly with him. That after his death they continued to be joint, but sometime afterwards, Thakur Das (plaintiff) and his family began to live separately from his two brothers, Ram Chand and Parshadilal and that there was a cessar of commonsality as well. But their property including the firm known as "Chaturbhuj Ram chand" continued to be joint and Parshadilal used to look after the property. Out of this property, two houses remained in the possession of Thakur Das (plaintiff) and from time to time, Thakur Das used to draw upon the family funds. Parshadilal made him pass receipts for larger sums than he actually received and by force and fraud made Thakurdas write that he had received his share of the property. But in fact till the death of Parshadilal, the property remained undivided, it is stated that for some time past, in order that he may be helped in his work, Parshadilal had kept Laxminarain (defendant) with him. But Laxmi Narain prevailed upon Parshadilal and made him write a document dated 31-12-1945, purporting to be a will by which the entire property was bequeathed to Laxmi Narain. But Laxmi Narain prevailed upon Parshadilal and made him write a document dated 31-12-1945, purporting to be a will by which the entire property was bequeathed to Laxmi Narain. Parshadilal at the time of making the bequest was not in his senses. The value of the property is assessed to be about ten lakhs. 3. The defendant resists the claim on the ground that he is the adopted son of Parshadilal, that the family became divided long ago, that by deeds dated 23-6-1916 and 3-8-1931, executed by Thakurdas received his share, that in the above deeds the plaintiff Thakurdas has himself admitted the defendant to be the adopted son of Parshadilal, that the will was executed when Parshadilal was in possession of his full senses. 4. The trial Court framed as many as sixteen issues and held that Parshadilal and Thakurdas became separated long ago, that the defendant is the adopted son of Parshadilal, that the will dated 31-12-1945 was duly executed in favour of the adopted son and in consequence dismissed the plaintiffs' suit. 5. The questions for determination in this appeal are in the main three: 1. Whether Parshadilal and Thakur Das continued to be joint till the death of Parshadilal as members of Joint Hindu Family? 2. Was Laxmi Narain adopted by Parshadilal? 3. Did Parshadilal execute his will dated 31-12-45 when he was in his senses? 6. With regard to question No.1 as to whether the brothers continued to be joint till Parshadilal's death, I place reliance on Exs. D.1 and D.3, which throw adequate light on the point in dispute. A brief reference as to what these documents are is necessary. But before doing so, it may be stated that while the plaintiff 1 (Thakur Das) admits the execution of these documents in Para No.4 of the plaint, he has however, said that through deceit and fraud, he was made to write these documents. In the first place in the plaint he has omitted to give any details of the deceit practised upon him and secondly, it is most surprising that Ex. D.1 was executed as far back as 1916 and this suit was filed in the year 1946, yet during all these thirty years, the defendant did not take any steps whatsoever to challenge the deed and have it set aside - not only that but in a subsequent registered document Ex. D.1 was executed as far back as 1916 and this suit was filed in the year 1946, yet during all these thirty years, the defendant did not take any steps whatsoever to challenge the deed and have it set aside - not only that but in a subsequent registered document Ex. D.3 dated 31-7-1931, executed fifteen years after Ex. D.1 he refers to Ex. D.1 and confirms it. He had led no satisfactory evidence to prove that he was made to execute these documents against his will and in these circumstances his plea of force and fraud holds no water and must be rejected as being untenable. The learned trial Court has rightly held the plea to be without any force. 7. Coming to the examination of the above documents, I find that Ex. D.1 is a registered document, dated 23-6-1916. In this, Thakurdas after referring to the death of his father as an event that occurred ten years ago goes on to say that during all this period all the three brothers (Ramchand, Thakurdas and Parshadilal) remained joint, but in order to safeguard their future interests, they decided to divide all the property into three parts, one part of which he had obtained and the other two parts were in the joint possession of Ramchand and Parshadilal (the other two brothers) and Laxmi Narain, the minor son of Parshadilal. The document further states that by mutual agreement between them, each brother has been given his share and in testimony of this, Thakurdas on his behalf and also on behalf of his minor sons, executes it and admits receiving his share and promises that in future neither Thakur Das nor his heirs would have any claim in respect of the property of Chatur Bhuj (their father) against Ram Chand, Parshadilal and their heirs. In this document no details of the property are given, nor the share of each brother specified. This was followed by another document of the same date (Ex. D.2) also executed by Thakur Das, in which he again admitted partition of the property among the brothers and this document in brief refers to the extent of his share which he had received but this document is not registered and therefore I shall leave Ex. D.2 out of account. 8. The learned counsel for the plaintiff appellant Mr. Chitaley contends that Ex. D.2 out of account. 8. The learned counsel for the plaintiff appellant Mr. Chitaley contends that Ex. D.2 is the red deed of partition, but it is not registered and as such it cannot be admitted in evidence, that Ex D.1 merely shows preparation for partition among the brothers and its registration is, therefore, of no consequence, that in spite of all the deeds, produced by the defendant there was no partition and the other two brothers must be deemed to be the trustees under S.89,Indian Trusts Act and any profit which they may have earned must be returned. On the contrary the submission of Mr. Bhagwan Das Gupta the learned counsel for the respondent is that the plaint contains no reference to the trusteeship sought to be made out now nor is the case based upon that contention, that Ex. D.1 is a deed of partition which has been registered, that Ex. D.2 is a mere receipt of the share received that both the documents should be treated as a family settlement, in which it is not necessary to give details of the property to partition. 9. A look at Ex. D.1 would show that although it is in the nature of settlement, yet, it effects partition. And it goes without saying that a deed of partition although it may be the result of a family arrangement must be registered. See - 'Ramlal v. Mt. Sita Bai', AIR 1933 Lah 648 (2) (A). An instrument of partition may be in any form, it may be either in the form of a receipt or in the form of a regular deed elaborately drawn up, or it may be in any other form, however, crude. The Indian Registration Act prescribes no form for that purpose and whatever the form an instrument of partition of the value of Rs.100 and upwards must be registered because it limits the right and interest of those who seek partition. Ex. D.1 being registered, can be admitted and has been rightly admitted in evidence to prove the fact of partition. 10. Even if Ex. D.1 is left out of account, the fact of partition in 1916 is proved by document Ex. D.3 which lends support to the conclusion that there has been a partition between the brothers. 11. In considering Ex. D.1 being registered, can be admitted and has been rightly admitted in evidence to prove the fact of partition. 10. Even if Ex. D.1 is left out of account, the fact of partition in 1916 is proved by document Ex. D.3 which lends support to the conclusion that there has been a partition between the brothers. 11. In considering Ex. D.3, I find it to be registered document executed not only by Thakur Das, plaintiff 1 but also by his son Parmanand. The occasion for it was the death of Ram Chand, the eldest brother of Thakur Das. In Samvat 1980, Ram Chand died issueless and it seems that Thakur Das and his son clamoured for a share in the property left by Ram Chand. It is obivous that legally they could not lay any claim to it, because while Thakur Das had separated in 1916 Ex. D.1 his other two brothers, Ram Chand and Parshadilal continued to be joint and on the death of Ram Chand, the property went by survivorship to Parshadilal and his son Laxmi Narain. But it seems that Thakur Das all the same, regarded himself also an heir along with Parshadilal. The matter appears to have been referred to the 'Panchas', who on 12-7-1931 decided that in lieu of any share in the property of Ram Chand Thakur Das and his son may be paid a sum of Rs.19,000 in full satisfaction of their claims. This, of course, was not correctly a legal view, but the 'Panchas' usually try to spacify the parties and settle a dispute on the principle or "give and take". This decision was acceptable to both the parties. The document (Ex. D.3) goes on to recount that the payment of this sum of Rs.19,000 was made in this way that there was a sum of Rs.13,000 which the plaintiff had borrowed from Parshadilal and his son Laxmi Narain, that sum need not be paid back but it was to be adjusted towards Rs.19,000 and Rs.6,000 were paid in hard cash before the Registrar. This document contains an admission that in 1916, the brothers had become separated and that Thakur Das had received his share of the joint family property. Even if this document was not registered it was enough to prove partition because it contains an acknowledgment that there had been in time past a partition between the brothers. This document contains an admission that in 1916, the brothers had become separated and that Thakur Das had received his share of the joint family property. Even if this document was not registered it was enough to prove partition because it contains an acknowledgment that there had been in time past a partition between the brothers. An acknowledgment of such a nature does not require registration. See - 'Sakharam Krishnaji v. Madan Krishnaji', 5 Bom 232 (AA). I consider this document (Ex. D.3) to be most important piece of evidence and I would like to reproduce it in full. 12. This document recounts all the facts of a previous partition, it contains the details of a subsequent dispute which was amicably settled to the satisfaction of all concerned, and it is also registered. Ex. D.3 clearly establishes the fact that there had been a partition between the brothers in 1916. 13. I have purposely left out Exs. D.2 and D.4 which purport to be receipt of the property received on partition. They ought to have been registered under S.17 (1) (c), Registration Act, but were not registered. 14. On the basis of Exs. D.1 and D.3, I come to the conclusion that as far back as 1916, there had been a partition between Thakur Das on one hand and Ramchand and Parshadilal on the other and that since 1916, there was a severance of the statutes of the joint family so far as Thakur Das was concerned. 15. The learned counsel for the appellants has referred us to the following decided cases: - 'Govt. of Madras Provinoe v. Vellayan Chettiar', AIR 1944 Mad 544 (B); - 'Subbu Naidu v. Varadarajulu Naidu', AIR 1948 Mad 26 (C); - 'Balkishan v. Saliq Ram', AIR 1946 All 476 (D); and - 'Veera Raghava Rao v. Gopalarao', AIR 1942 Mad 125 (E). 16. I have carefully gone through all these cases and I have no doubt that as far as they go they lay down good law. But I am afraid, they are not of much assistance so far as the present case is concerned ' AIR 1944 Mad 544 (B)', is besides the point. 'AIR 1948 Mad 26 (C)', lays stress on the point that an unregistered deed is inadmissible to prove partition. But in this case I have held that Ex. But I am afraid, they are not of much assistance so far as the present case is concerned ' AIR 1944 Mad 544 (B)', is besides the point. 'AIR 1948 Mad 26 (C)', lays stress on the point that an unregistered deed is inadmissible to prove partition. But in this case I have held that Ex. D.1 is the deed of partition and therefore, this ruling is not helpful. The Allahabad decision ' AIR 1946 All 476 (D)', is for the like reason inapplicable. In 'AIR 1942 Mad 125 (E), it held that where a partition deed is inadmissible for want of registration, then one co-sharer cannot sue another co-sharer for ejectment. This case, too, so far as the mark. 17. The Second question for consideration is whether Laxminarain defendant was adopted by Parshadilal or not? 18. The trial Court has recorded a finding on this point in favour of the defendant and against the plaintiff. 19. In para.7 of the plaint, it is stated that Parshadilal and Laxminarain had no connection with each other and that Laximinarain has not been legally adopted by Parshadilal. From P.7 it is not at all clear on what particular ground the adoption is being challenged. In considering the evidence on this point, we have to bear in mind that Laxminarain was adopted before 1916 and that his adoption is being challenged after more than thirty years. And it may be also noted that in Ex. D.1, and Ex. D.2 (executed in 1916) and Ex. D.3 and Ex. D.4 (Executed in 1931) the plaintiff admitted the adoption of Laxmi Narain and referred to him as the adopted son of Parshadilal. It may be said that Ex. D.2 and Ex. D.4 being the unregistered receipts are not admissible. They are not admissible as evidence of partition but for collateral purposes namely, for an admission of adoption, they can be looked into. It is true that since the decision in - 'Dhanraj Joharmal v. Soni Bai', AIR 1925 PC 118 (F), such an admission by the plaintiff does not estop him from objecting to adoption on the ground that it is invalid in law, yet, I am of the opinion that the plaintiff ought to have stated in the plaint the particular ground on which he challenged the adoption rather than make a vague statement that it is invalid in law. 20. 20. The learned counsel for the appellant has however, made it clear in his arguments that he challenges the adoption on the ground that there was no giving and taking and that the absence of this renders the adoption invalid. 21. On the question of the "giving and taking" the defendant has examined Seth Soobalal, Gopilal, Gulab Chand, Jangalya, Kishorilal, Gordhandas, Mt. Bilan, the real mother of the defendant and himself. The most important witness among them all is the mother (Bilan), who says that she accompanied her son from Jaipur to Shivpuri and has deposed that the "giving and taking" ceremony actually took place. Gulab Chand, is the son-in-law of Parshadilal and his interests in a way may be said to be adverse to the defendant, because if the defendant was not adopted, in view of the fact that property is divided, it would all go to the daughter of Parshadilal i.e., his wife and thereafter to his son. He has deposed that the "giving and taking" did take place. Chunnilal, a servant of forty years standing in the family also affirms to the "giving and taking" and says that Laxmi Narain's mother gave him actually to Parshadilal. There is no doubt that there is an overwhelming evidence of the ceremony of "giving and taking". 22. The main attack of the learned counsel for appellant is that some of the witnesses who have deposed to the fact of actual adoption, did not produce their account books to show the entry of presents they made at the time of adoption. But I am afraid that to expect people to make entries about petty presents in their account books is not very fair. Thakurdas, plaintiff in his examination has stated that at the time of Laxminarain's marriage, he took part in it as an uncle and officiated in some ceremonies on behalf his brother, Parshadilal as the father. In - 'Pannalal v. Chiman Parkas', AIR 1947 Lah 54 (G), Mahajan J., observed that "in respect of an old adoption strict proof of the performance of the ceremonies cannot be demanded. In - 'Pannalal v. Chiman Parkas', AIR 1947 Lah 54 (G), Mahajan J., observed that "in respect of an old adoption strict proof of the performance of the ceremonies cannot be demanded. An adoption acquiesced in and recognised for a number of years by the person making the adoption, and a long course of recognition on the part of that person and by the brotherhood, who were best acquainted with the circumstances, gives rise to the inference that the conditions relating to the adoption were fulfilled." 23. On a review of the entire evidence on the point, I have no doubt the adpotion was legally valid. 24. With regard to the will made by Parshadilal in favour of Laxminarain, the learned counsel for the appellant contends that if Laxminarain was adopted, then there was no need to bequeath the property to him as an heir, he would have become entitled to it in due course. But after going through the entire record, the reason is apparent. Parshadilal knew his brother Thakurdas to be a person of cantankerous nature, who was likely to put obstacles in the way of his son. His fear proved to be true and the will he executed was by way of abundant caution. 25. The will is Ex. D.5 and is dated 31-12-1945. It was executed by Parshadilal three days before he passed away. In para.6 of the plaint, it is said that Parshadilal could not execute the will because the property was joint and undivided, that the will is forged and without consideration, that the will was made while Parshadilal was not in his senses. 26. The learned counsel for the appellant, out of so many attacks on the will, has pressed only one, namely that the will was made when Parshadilal was not in his senses. But the statement of Dr. Mishra nails the contention to the counter. The only criticism made against Dr. Mishra is that he is a friend of the family. But that is no reason to disbelieve him and in the circumstances of the case, his evidence is the best. He is supported by the statements of Soobalal and Kaluram and also of Mr. Mehra, the Registrar, who registered the will. Dr. Mishra says that the malady from which Parshadilal suffered was that his intestines used to descend in his testicles. He is supported by the statements of Soobalal and Kaluram and also of Mr. Mehra, the Registrar, who registered the will. Dr. Mishra says that the malady from which Parshadilal suffered was that his intestines used to descend in his testicles. It is obvious and so does the doctor says that this complaint was not such as to deprive him of his senses. Mr. Mehra's statement is particularly trustworthy. He had no bias towards any party and he says that Parshadilal at the time of the execution of the will was in his senses. 27. I, therefore, think that the will was validly made and that the executor of the will was in his senses at the time he made it. 28. In result the appeal is dismissed with costs. DIXIT, J.:- 29. I also think that this appeal must be dismissed with costs. The plaintiffs claimed recovery of possession of the properties in suit from Laxminarain on the basis that they and Parshadilal constituted a joint Hindu family that at the death of Parshadilal the family was joint; that Laxminarain was an absolute stranger in the family: that he was never adopted by Parshadilal and that even if the adoption had taken place, it was invalid. In the alternative the plaintiffs claimed that even if they had separated from Parshadilal, on his death they were entitled to succeed to the properties as Laxminarain was not the validly adopted son of Parshadilal. Two main questions, therefore, arise for consideration in this appeal. First, whether Parshadilal and Thakurdas were joint till the death of Parshadilal. Secondly whether Parshadilal adopted Laxminarain as a son, and if he had, whether the adoption was valid. The lower Court has found on a consideration of Exs. D.1, D.2, D.3, and D.4 and on the evidence of the separation of Parshadilal and Thakurdas in food and residence for several years, and of their conduct and dealings with each other and in regard to properties held and enjoyed by them for several years as separate properties, that there was a partition between Thakurdas and Parshadilal and since then the properties in suit were in possession of Parshadilal as his separate property. The lower Court has also held that the plaintiffs had failed to prove that Parshadilal got the documents Exs. D.1, D.2, D.3 and D.4 executed by Thakurdas by practising fraud and undue influence on him. The lower Court has also held that the plaintiffs had failed to prove that Parshadilal got the documents Exs. D.1, D.2, D.3 and D.4 executed by Thakurdas by practising fraud and undue influence on him. On the question of adoption the finding of the trial Court is that Laxminarain is the validly adopted son of Parshadilal. 30. Mr. Chitale learned counsel for the appellants somewhat faintly argued that Exs. D.1, D.2, D.3 and D.4 were procured by Parshadilal by exerting pressure and undue influence on Thakurdas and that the transactions embodied in them were unfair. I agree with my learned brother that there is no proof to support this allegation of the plaintiffs. In the plaint the plaintiffs did not state the particulars of pressure, undue influence or fraud on which they relied. Nor is there any evidence of undue influence or pressure. The plaintiffs sought to prove that at the time of the execution of Ex. D.1 and Ex. D.2 Thakurdas was in such an impoverished state that Parshadilal took advantage of that position of Thakurdas and got him to execute the documents. Apart from the fact that the evidence on record does not establish any such state of Thakurdas, it is difficult to understand why Parshadilal should have at all brought pressure on Thakurdas to execute the documents when there could be no doubt about Parshadilal's right to demand a partition and of being allotted his share in the joint family property. Parshadilal himself admitted in his evidence that he did not sign the documents on account of any pressure. The contention that the documents are vitiated due to fraud or undue influence must, therefore, be rejected. On the question of the jointness of the family at the death of Parshadilal, the argument of Mr. Chitale was that Ex. D.2 dated 23-6-1916 was an instrument in writing of the partition; that Ex. D.1 of the same date was merely a document which recorded a past transaction of partition; that as Ex. On the question of the jointness of the family at the death of Parshadilal, the argument of Mr. Chitale was that Ex. D.2 dated 23-6-1916 was an instrument in writing of the partition; that Ex. D.1 of the same date was merely a document which recorded a past transaction of partition; that as Ex. D.1 was not registered, under S.91, Evidence Act, no oral or documentary evidence could be admitted to prove the partition or its terms; that besides these documents there was, in fact, no evidence to prove any partition; that even if the deed were admissible to prove the fact of partition in 1916 that would at the most establish a conversion of the joint tenancy of the undivided family into a tenancy-in-common. I agree with learned counsel that Ex. D.2 is an instrument of partition and required registration. That document recites: It then sets out the property allotted to Thakurdas. The document is dated 23-6-1916 and signed by Thakurdas on his behalf and on behalf of his minor sons and by certain witnesses. I have no doubt that this document embodied an expression of will necessary to effect severance of joint status and purported to declare Thakurdas's title to the properties mentioned in the document. I also agree that Ex. D.1 which is a registered document and executed by Thakurdas on his own behalf and on behalf of his minor sons is a document of the past transaction of partition effected earlier in the day by Ex. D.2. I, however, do not find myself able to accept the contention that as Ex. D.2 is unregistered, no oral or documentary evidence to prove that there was a partition between the parties can be admitted. The unregistered deed of partition is no doubt not admissible to prove the terms of the partition but it can be referred to under S.49, Registration Act for the purpose of proving the collateral fact of partition itself or severance of the joint status. Though not admissible to prove that properties fell to the share of a particular member in the partition, it can be relied upon to prove separate possession and separate dealings and enjoyment of the properties. The non-registration of the partition deed Ex. D.2 is not a bar to the admission in evidence of a registered instrument confirming the partition embodied in Ex. D.2. The non-registration of the partition deed Ex. D.2 is not a bar to the admission in evidence of a registered instrument confirming the partition embodied in Ex. D.2. On the question whether an unregistered instrument of partition is admissible to prove that the parties ceased to be joint from the date of the instrument, there is no doubt a conflict of opinion. In some cases it has been held that it is, and in other it is not. The conflict has been noted in Mulla's Registration Act and also in Chitaley's Registration Act. I do not propose to examine all the cases noted on the point by the learned authors. To me it seems, the view that an unregistered instrument of partition is admissible to prove an intention to become divided in status is consistent with the decisions of the Privy Council in - 'Varada Pillar v. Jeevarathnammal', AIR 1919 PC 44 (H) and - 'Rajangam Ayyar v. Rajangam Ayyar', AIR 1922 PC 266 (I). The combined effect of S.91, Evidence Act and S.49, Registration Act is only to shut out all evidence to prove the terms of the unregistered partition deed. These provisions do not bar evidence to prove separate status and separate possession by other independent evidence. Section 91, Evidence Act excludes oral evidence only in proof of the terms and not of its existence as a fact of a contract, grant or other disposition of property. Section 49(c), Registration Act prohibits the use of unregistered documents in any legal proceeding in which such a document is sought to be relied upon in support of a claim to enforce or maintain any right, title or interest to or in immovable property. So long as the document is not used as evidence of any right, title or interest to or in immovable property, there is nothing to prevent the document being received in evidence for other purposes. The proviso to S.49, Registration Act says that a document though unregistered is admissible to prove a collateral fact. As to what is a collateral fact has been, if I may say so with respect, best explained by Bhagwati, J. in - 'Ramlaxmi Ranchhodlal v. Bank of Baroda Ltd.', AIR 1953 Bom 50 (J). The learned Judge said: "The expression "collateral" transaction is used not in the sense of an ancillary transaction to a main transaction. As to what is a collateral fact has been, if I may say so with respect, best explained by Bhagwati, J. in - 'Ramlaxmi Ranchhodlal v. Bank of Baroda Ltd.', AIR 1953 Bom 50 (J). The learned Judge said: "The expression "collateral" transaction is used not in the sense of an ancillary 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 fulfilment 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 partition 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 S.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 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 S.49, Registration Act." "The partition of immovable property belonging to the joint family which required to be effected by a registered instrument would be inadmissible in evidence under the main provisions of S.49, Registration Act, but the partition, i.e., the severance of joint status, which is not required to be effected by a registered instrument would be a collateral transaction, evidence of which would certainly be admissible under the proviso to the section, and the memo of partition which was inadmissible for want of registration would certainly be admissible to prove the fact of such partition." 31. In 'Girija Nandan v. Girdhari Singh', AIR 1951 Pat 277 (K) it has been held that although an unregistered partition deed is inadmissible in evidence to prove the terms of the partition or title to the immovable property, it is admissible for a collateral purpose to determine the nature and character of possession and for the purpose of showing that the parties were dealing with the properties in their separate possession on the footing that there had been a partition between the members of the family. Again in - 'Ganpat Gangaji v. Namdeo Bhagwanji', AIR 1941 Nag 209 (L) a Division Bench constituted by Stone, C.J., and Bose J., had held that the use of an unregistered partition deed to corroborate evidence of a subsequent agreement confirming the unregistered agreement is permissible because the subsequent agreement is a collateral transaction within the meaning of S.49, Registration Act. The learned Judges observed: 2. If these documents which we have been considering had been registered they would in themselves have brought about a separation of title and a division of property. Thereafter, the parties to the agreement could have insisted on having its terms carried out. I could say that property X fell to his share and that it must be given to him. If these documents which we have been considering had been registered they would in themselves have brought about a separation of title and a division of property. Thereafter, the parties to the agreement could have insisted on having its terms carried out. I could say that property X fell to his share and that it must be given to him. But being unregistered they are ineffective to bring about a partition, and therefore if the parties did nothing else, if they did not confirm that agreement, or act upon it and carry out its terms, then I would not be able to demand property X. All he could do would be to ask for a fresh division and in it property X might or might not fall to his share. But if the parties confirm the unregistered agreement, or act upon it and carry out its terms, and do so with the intention of separating, then partition would be complete, and A would be liable to claim property X, not under the unregistered document but in virtue of the subsequent agreement confirming the original intention." "No question of transfer of title arises in partition. Each parcener already has complete title to and dominion over every parcel of the joint estate. Partition is consequently only a change in the mode of enjoyment of the joint property coupled with an alteration in status, the joint title being divided into a number of separate ones. No particular formality is required, and therefore although a document by which the parties had intended to have this division effected may, in the result, prove ineffective for that purpose, nevertheless their common desire to act upon it, and their action in doing so would spring from a continuation of the original intention, and that at any particular moment of time would amount to a confirmation of the original agreement; and if for any reason the original agreement were to fall to the ground, or be unprovable, such confirmation would in itself constitute a fresh and subsequent agreement which would be enough in itself to effect complete partition; and that agreement would be provable in any of the usual ways ........................... In our opinion the subsequent agreement of which we have spoken is 'a collateral transaction not required to be effected by a registered instrument' within the meaning of S.49, Registration Act. In our opinion the subsequent agreement of which we have spoken is 'a collateral transaction not required to be effected by a registered instrument' within the meaning of S.49, Registration Act. Therefore, the unregistered document can be used as material in proof of it. Of course it cannot prove such agreement in itself because no such agreement can be deemed to have been in existence at the date of its execution. But it could be used to corroborate other evidence or facts. It could be used in conjunction with other evidence to show that such subsequent agreement was likely and to elucidate the intention of the parties in effecting such subsequent agreement. It could be used to show the character of the possession and the nature of the title, provided there is other evidence to establish separate possession." 32. Learned counsel for the appellants placed reliance on - 'Ramayya v. Achamma', AIR 1944 Mad 550 (FB) (M); AIR 1942 Mad 125 (E); AIR 1948 Mad 26 (C) and AIR 1946 All 476 (D). In AIR 1944 Mad 550 (FB) (M) it was no doubt held by a Full Bench that where a deed of partition is inadmissible in evidence for want of registration, the partition cannot be proved by evidence apart from the deed. I must confess I find it difficult to gather from the judgment in AIR 1944 Mad 550 (FB) (M) what exactly the learned Judges intended to hold in the context of the facts of the case before them when they said that the subordinate Judge was not right in holding that the partition could be proved by evidence apart from the deed. Somayya, J. in - 'Koyatti v. Imbichi Koya', AIR 1946 Mad 534 (N) felt some doubt as to whether the Full Bench decision in AIR 1944 Mad 550 (M) was good law after the decision of the Judicial Committee in - 'Ramrattan v. Parmanand', AIR 1946 PC 51 (O). In AIR 1948 Mad 26 (C) Sastri J., explained the Full Bench decision in AIR 1944 Mad 550 (M) by saying that: "The Full Bench were dealing with a suit for ejectment and recovery of possession of specific properties where the plaintiff could succeed only by proving her title. In AIR 1948 Mad 26 (C) Sastri J., explained the Full Bench decision in AIR 1944 Mad 550 (M) by saying that: "The Full Bench were dealing with a suit for ejectment and recovery of possession of specific properties where the plaintiff could succeed only by proving her title. The partition deed whereby those properties had been allotted to her deceased husband's share having been held to be inadmissible for want of registration, she sought to prove such allotment by other evidence; in other words, she sought to prove the terms of the partition by means of other evidence. This, it was held, she could not do, having regard to S.91, Evidence Act 33. The Full Bench in AIR 1944 Mad 550 (M) no doubt expressed its disapproval of the decision in - 'Ramu Chetti v. Panchamal', AIR 1926 Mad 402 (P) in which it had been held that where a partition deed could not be proved for want of registration, the fact of partition could be proved by other evidence, namely, the conduct of the parties in their dealings with each other and with regard to specific items of property. It was observed by the Full Bench that if the judgment of Kumaraswami Sastri J., in AIR 1926 Mad 402 (P) were to be accepted it would mean the overriding of the very emphatic provisions of S.17, Registration Act and S.91, Evidence Act. It is, however, noteworthy that while expressing the above opinion, the Full Bench recognized the correctness of the decision in - 'Subbarao v. Mahalakshmamma', AIR 1930 Mad 883 (Q) which laid down that regard can be had to the terms of an unregistered deed of partition when there is a mere question of deciding whether there has been a division of status. The Full Bench stated that the correctness of the decision in AIR 1930 Mad 883 (Q) had not been questioned. It will, therefore, be seen that the decision in AIR 1944 Mad 550 (FB) (M) cannot be regarded as an authority for the proposition that an unregistered deed of partition is not admissible in evidence to prove a division of status or that the fact of partition cannot be proved by other evidence. It will, therefore, be seen that the decision in AIR 1944 Mad 550 (FB) (M) cannot be regarded as an authority for the proposition that an unregistered deed of partition is not admissible in evidence to prove a division of status or that the fact of partition cannot be proved by other evidence. The decision in AIR 1942 Mad 125 (E) is distinguishable by the fact that in that case the question did not arise for consideration whether an unregistered partition deed could be used to prove the fact of partition. All that was decided in that case was that an unregistered partition deed cannot form the basis of title to a particular property in a suit brought by one co-sharer against another for ejectment. The decision in AIR 1948 Mad 26 (C) lends support to the view that an unregistered partition deed can be relied upon to prove the fact of partition. That was a case where in order to establish that there was complete partition the defendant in the suit relied upon an unregistered 'Koorchit' or instrument of partition purporting to evidence partition arrangement between the parties. The trial Court had held that the document could not be looked into for any purpose as it had not been registered. It was contended in the High Court that the view taken by the trial Court was wrong. Patanjali Sastri J., upheld the contention and observed that uplike the Stamp Act which renders an instrument not duly stamped inadmissible for any purpose, the Registration Act prohibits its admission only for certain purposes, and that the deed was admissible to prove the adverse character of a sharer's possession of the lands which were allotted to him under the partition deed though such allotment was ineffectual for want of registration. The decision of the Allahabad High Court in AIR 1946 All 476 (D) no doubt lays down that the use of an unregistered partition deed to prove partition was not a collateral purpose. The decision does not, however, give any reason in support of the view. The decision of the Allahabad High Court in AIR 1946 All 476 (D) no doubt lays down that the use of an unregistered partition deed to prove partition was not a collateral purpose. The decision does not, however, give any reason in support of the view. There is also no consideration in that decision of the Privy Council cases referred to above, on which I am inclined to take the view that an unregistered partition deed is admissible to prove the fact of partition and that it can be taken into consideration along with other material on record for the purpose of showing that the parties were dealing with properties in their possession on the footing that there had been a partition between them. Mr. Chitale also referred us to AIR 1946 PC 51 (O). That decision only held that S.35, Stamp Act rendered an instrument not duly stamped inadmissible for any purpose including a collateral purpose and that, therefore, it could not be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms. In that case their Lordships of the Privy Council had no occasion to consider the question whether if the document had been properly stamped but unregistered, it could be used to prove the fact of partition. Coming now to the documents in the present case Ex. D.2 which, as I have stated above, is an instrument of partition is not admissible in evidence to prove the terms of partition, as it is unregistered. It can, however be realised upon the proof of the fact of partition. Ex. D.1 which was executed by Thakurdas on the same day as Ex. D.2 is registered. It merely records a past transaction of the partition effected by Ex. D.2. Ex. D.1 contains an admission of Thakurdas that he had separated from the joint family and that he had received his share. Ex. D.1 is also admissible in evidence. Ex. D.3 has been referred to at length by learned brother. This was executed on 31-7-1931 by Thakurdas and Parmanand and was registered. That document confirms the partition effected in 1916 by Ex. D.2. On the basis of AIR 1941 Nag 209 (L) the confirmation by Ex. D.3 of the partition embodied in Ex. D.1 is also admissible in evidence. Ex. D.3 has been referred to at length by learned brother. This was executed on 31-7-1931 by Thakurdas and Parmanand and was registered. That document confirms the partition effected in 1916 by Ex. D.2. On the basis of AIR 1941 Nag 209 (L) the confirmation by Ex. D.3 of the partition embodied in Ex. D.2 would in itself constitute a fresh and subsequent agreement which would be enough in itself to effect complete partition. These documents can be taken into consideration along with the other evidence on record which is to the effect that for 30 or 35 years prior to the institution of the suit, Thakurdas was separate in mess and residence from his brothers Ramchandra and Parshadilal, was in exclusive possession of certain properties and was carrying on his business independently. In this evidence Thakurdas himself admitted that during all this period he had been living separate from his brothers. He no doubt said that this was on account of difference between the women-folk of the household. But this statement of Thakurdas does not displace the effect of his other statements that so long as he was living jointly with his brothers he used to receive moneys from Parshadilal for meeting his expenses, that on living apart, Parshadilal and Laxminarain did not contribute anything towards his expenses and that while he was doing business in Shivpuri in the name of Chaturbhuj Thakurdas, his brothers used to do business in the name of Chaturbhuj Ramchandra and that he was responsible for all transactions effected in the name of Chaturbhuj Thakurdas while Parshadilal was responsible for all transactions done by the shop of Chaturbhuj Ramchandra and that while living separate he had also acquired property of his own. There is nothing in the evidence adduced by the plaintiffs to show that though the plaintiffs dwelt and messed apart from Parshadilal, their conduct in dealings with each other and with regard to the properties in their possession and their business, was consistent with jointness. I do not think the proposition of the Hindu Law that every Hindu family is presumed to be joint in food, worship and estate can be of any assistance to the plaintiffs. I do not think the proposition of the Hindu Law that every Hindu family is presumed to be joint in food, worship and estate can be of any assistance to the plaintiffs. The reason is that once a partition is proved to have been effected between the members of a joint and undivided Hindu family, it would be presumed to be complete both as regards the person as well as the properties, unless there is proof to the contrary. That is the proper presumption to be made in the present case. The burden of rebutting this presumption lay on the plaintiffs. On the evidence produced by the plaintiffs it cannot be held that they have discharged this burden. In my judgment on the proof of the fact of partition by Ex. D.2 and after the admission of Thakurdas in Ex. D.1 about the severance of the joint status and on the confirmation by Ex. D.3 of the partition effected by Ex. D.1, it is difficult to resist the conclusion on the other evidence on record that there was a partition in 1916 between. Thakurdas and his brother and that the parties dealt with their properties in possession on the basis that there had been a partition between them as pleaded by the defendants. The plaintiffs' allegation that they were joint with Parshadilal until the time of his death must, therefore, fail. 34. In regard to the adoption of Laxminarain, the evidence on which the learned District Judge has found that the adoption was established consists of (1) the admissions of Thakurdas in Exs. D.1, D.2, D.3 and D.4 that Laxminarain was the son of Parshadilal and the conduct of Thakurdas for over 35 years in treating Laxminarain as the adopted son of Parshadilal; (2) the statements of the defendant's witnesses Subalal, Gopilal, Gulabchand, Janglia, Kishorilal, Laxminarain and his mother Mt. Bilan that there was giving and taking ceremony and Laxminarain was adopted by Parshadilal in their presence; (3) and documents showing that in various litigations and proceedings Laxminarain was described as the son of Parshadilal. Bilan that there was giving and taking ceremony and Laxminarain was adopted by Parshadilal in their presence; (3) and documents showing that in various litigations and proceedings Laxminarain was described as the son of Parshadilal. Learned counsel for the appellant urged that the evidence on record at the most indicated that Laxminarain was treated as an adopted son but that there was no evidence to prove the fact of giving and taking and that in the absence of positive evidence to prove the fact of giving and taking, no amount of treatment could make Laxminarain as an adopted son. It was said that in Ex. D.1, Exs. D.2, D.3 and D.4 Thakurdas described Laxminarain as the son of Parshadilal and not as the "adopted" son; that the evidence of the defendant's witnesses who deposed to the giving and taking having taken place in their presence was interested; that the defendant did not produce the account books of Parshadilal containing entries of the expenses of the alleged adoption; that the priest who officiated at the adoption ceremony was not called to give evidence; that Mangi, the family barber, deposed that in his presence there was no giving and taking ceremony; that according to Laxminarain himself his mother Bilan was not present at the time of the alleged adoption; and that there was no evidence to show how Laxminarain's family was related to Parshadilal and whether Laxminarain could at all validly be the subject of adoption. In my opinion there is no force in the criticism advanced by the learned counsel for the appellants. No doubt as stated by the Privy Council in - 'Kishorilal v. Chunnilal', 31 All 116 (R) and in - Dal Bahadur v. Bijay Bahadur', AIR 1930 PC 79 (S), the onus of proving an adoption is on the party setting it up.It is also true that if no giving and taking in adoption is proved to have taken place, no amount of acknowledgment by Thakurdas of Laxminarain as a son of Parshadilal would estop him from disputing the adoption (See AIR 1925 PC 118 (F)). At the same time it is equally well-established that it is not necessary to produce direct evidence of he fact of adoption, whether it has taken place long since and the adopted son has been treated as such by the members of the family and in public transactions; and that every presumption will be made that every circumstance has taken place which is necessary to account for such a state of things as is proved or admitted to exist. (Vide - 'Jagannath v. Mt. Chandni Bibi', AIR 1921 Cal 647 (T); AIR 1947 Lah 54 (G); - 'Mt. Sumantrabai v. Rishabh Kumar', AIR 1952 Nag 295 (U) and - Venkata Seethramachandra Rao v. Kanchumarthi Raju', AIR 1925 PC 201 (V). In AIR 1925 PC 201 (V) their Lordships observed: "It stands to reason that after such a long term of years, and the variety of transactions of open life and conduct, upon one footing alone namely, that the adoption was recognized as a valid act - the burden resting, altogether apart from the law of limitation, upon any litigant who challenges the authority of admitted adoption, is indeed of the heaviest order." 35. Where, therefore, the alleged adopted son has been treated as such for a long series of years, very slight evidence is sufficient to prove the adoption. (See - 'Kailash Chandra v. Bejoy Chandra', AIR 1923 Cal 18 (W)). Here the plaintiffs-appellants only challenged the 'factum' of adoption. In the plaint no question was raised as to the validity of adoption. The plaintiffs not having asserted that the adoption was invalid in law and not having stated the grounds of the invalidity of the alleged adoption, no issues were struck on the points whether Laxminarain had the capacity of being the subject of adoption or whether the performance of certain ceremonies was essential to constitute a valid adoption in the community of the parties. The appellant cannot, therefore, be permitted to urge now that there was no evidence to show that Laxminarain could be validly adopted. As to the evidence produced by the defendant to prove 'giving and taking,' I think it is sufficient to discharge the burden of proof that lay on him. (His Lordship then discussed evidence and concluded that the adoption of Laxminarain was proved.) 36. As to the evidence produced by the defendant to prove 'giving and taking,' I think it is sufficient to discharge the burden of proof that lay on him. (His Lordship then discussed evidence and concluded that the adoption of Laxminarain was proved.) 36. There remains for consideration the contention of the learned counsel for the appellant with regard to the validity of the will Ex. D.E, propounded by the defendant Laxminarain. This document was executed by Parshadilal on 31-12-1945 three days before his death. It was registered. It commences with a recital that all the property that was in his possession at the time belonged to him and Laxminarain; that Laxminarain had been adopted by him as a son and that Thakurdas had separated during the lifetime of their father and that Thakurdas or his sons had no claim whatsoever over his property. It then states that the document was being executed as he was ill and in order to ensure that in future there should be no dispute about his property and that Laxminarain should succeed to the property even if any objection was raised to his adoption. The document then proceeds to make a disposition of the entire property in favour of Laxminarain as "persona designata". Mr. Chitale contended that the circumstances that the document was executed by Parshadilal three days before his death; that it contained an incorrect statement about Thakurdas having separated during the lifetime of his father; that it described absurdly Laxminarain as a "persona designata", are sufficient to excite suspicion about the genuineness of the will and that there was a heavy onus on the defendant Laxminarain to prove affirmatively that the will under which he took a benefit was the will of a free and capable testator. It was said that the defendant did not examine the lawyer or the person who drafted the will to show that Parshadilal knew, understood and approved of the contents of the document and that the evidence of Dr. Misra and Mr. Mehra the Registrar was inconclusive to prove sound disposing mind of Parshadilal. The argument put forward by the learned counsel is not devoid of any substance. Misra and Mr. Mehra the Registrar was inconclusive to prove sound disposing mind of Parshadilal. The argument put forward by the learned counsel is not devoid of any substance. The circumstances pointed out by him do, in my opinion, raise a well-grounded suspicion and doubt as to whether Parshadilal was fully cognizant of its contents and was in a condition to exercise thought, judgment and reflection when he admitted the execution of the document before the Registrar Mr. Mehra. There is no evidence to show who wrote out the will; whether the statements made in the document were inserted under instructions of Parshadilal and as to what the draftsman of Parshadilal intended to convey by the use of the expression "persona designata". The evidence of Dr. Misra, who attested the will and who was attending Parshadilal, that Parshadilal was suffering from hernia and that at the time of the execution of the will he was in a good state of health and his brain had not been affected, does not remove the doubt whether Parshadilal really understood the contents of the instrument. In fact not much weight can be attached to the statement of Dr. Misra who was a family friend of the deceased and indebted to him, and who deposed to the state of health of Parshadilal more in the capacity of a friend than as a medical expert in attendance. The statement of Mr. Mehra also does not throw much light on the capacity of the deceased and his knowledge and assent to the contents of the document. Mr. Mehra did not remember many details of the circumstances in which he registered the document. He did not remember whether he had seen Parshadilal in good state of health at any time before the date on which he legistered the document. He could not recollect whether he went to the house of the deceased for the purpose of registration straight from the Court or from his residence. He could not say as to how many persons were present at the residence of Parshadilal when he went there to register the document. Nor could he say who had called and taken him to Parshadilal's house. He could not say as to how many persons were present at the residence of Parshadilal when he went there to register the document. Nor could he say who had called and taken him to Parshadilal's house. It is clear from his evidence that it was solely on the basis of the endorsement made by him on the document that he was able to say that the document was read out to Parshadilal and he admitted the execution thereof before him. Mr. Mehra made the statement that he himself did not read out the document to Parshadilal, his clerk read out the document. Mr. Mehra had nowhere said that he explained the contents of the document to Parshadilal and then asked him whether he approved of the contents. He no doubt said that the deceased was in a good state of health at the time of the registration. I am certain that Mr. Mehra would not have registered the document if he had not been satisfied as to the mental capacity of Parshadilal to admit the execution of the document. But this does not prove the important fact that in the enfeebled state of body and mind Parshadilal really understood the nature of the instrument or the contents thereof. Indeed the statement recorded by Mr. Mehra in the endorsement on the document that while admitting the execution of the document Parshadilal declared that indicates that at the time of the execution of the document what was uppermost in the mind of Parshadilal was not the execution of a will but of a document to ensure that no disputes arose about the property. Having regard to the statements in the document and the evidence on record I am satisfied beyond all reasonable doubt that Parshadilal was fully aware of the contents and was in a condition to exercise thought, judgment and reflection respecting the document he executed and that the document is the will of a free and capable testator. 37. In the view I have taken on the question of partition and adoption, it is not necessary for me to consider the point whether the plaintiff's suit for possession of the property is barred by limitation. 38. For the above reasons I agree with my learned brother that this appeal must be dismissed with costs. Appeal dismissed.