Judgment Case ID: 594

Judgment:
Appeal No. 177 of 1954. Appeal from the judgment and decree dated October 9	 1950 of the Bombay High Court in First Appeals Nos. 361 & 363 of 1948 from Original Decree arising out of the judgment and decree dated July 31	 1946	 of the Court of Special Tribunal	 Mangalvedhe in Special Suit No. 1322 of 1938. L. K. Jha	 Rameshwar Nath	 J. B. Dadachanji and section N. Andley	 for the appellant. K. R. Bengeri and K. R. Chaudhari	 for the respondent. April 14. The following Judgment of the Court was delivered by SINHA J. This is a defendants ' appeal by leave granted by the High Court of Judicature at Bombay from the decision of that Court	 dated October 9	 1950	 in two cross appeals from the decision of the Special Judge of the Special Tribunal Court at Mangalvedhe	 dated July 31	 1946	 in Special Suit No. 1322 of 1938. Of the two cross appeals	 the First Appeal No. 361 of 1948	 by the appellants	 was dismissed	 and the First 481 Appeal No. 363 of 1948	 by the plaintiff	 was allowed. The plaintiff respondent had instituted another suit	 being suit No. 1894 of 1937	 which was also tried along with Special Suit No. 1322 of 1938. The former suit stands dismissed as a result of the judgment of the High Court	 and no appeal has been brought against that judgment to this Court. The suit out of which this appeal arises (Special Suit No. 1322 of 1938)	 was instituted under the provisions of the Sangli State Agriculturists Protection Act	 granting certain reliefs from indebtedness to agriculturists of that State which was then outside what used to be called " British India ". The suit as originally framed	 prayed for accounts in respect of two mortgages	 though there were really three mortgages	 to be described in detail hereinafter	 and for possession of the	 lands comprised in those mortgages. The first	 defendant filed his written statement on January 6	 1940	 contesting the suit mainly on the ground that the plaintiff had no title to the mortgaged properties in view of the events that had happened; that the mortgaged properties had been sold at auction and purchased by the defendant 's father who	 thus	 became the full owner thereof; and that he had sold most of the properties to other persons who were holding those properties as full owners. Defelidant No. 3 who also represents the original mortgagee	 filed a separate written statement supporting the first defendant. Of the defendants who are transferees from the original mortgagees or their heirs only defendant No. 8 filed his written statement on March 26	 1940	 substantially supporting the first defendants written statement and adding that he had purchased the bulk of the mortgaged properties after acquisition of full title by the mortgagees themselves more than 12 years before the institution of the suit	 and that	 therefore	 it was barred by limitation. The trial court dismissed the suit by its judgment dated November 26	 1941	 with costs. On appeal by the defeated plaintiff	 the Special Bench of the High Court of Sangli State	 by its judgment dated June 13	 1944	 remanded the suit for a fresh trial after having permitted the plaintiff to amend the plaint so as to 482 include the relief for redemption. It appears that during the pendency of the suit after remand	 an application was made in February	 1945	 for making substitution in place of defendant No. 2 who had died meanwhile	 but the application was refused by the Court on the ground that the suit had abated as against that defendant. After reframing the issues and rehearing the 	lase	 the trial court	 by its judgment and decree dated July 31	 1946	 dismissed the suit as against defendants 6 to 9 who were holding portions of the mortgaged properties by sale deeds of the years 1919 and 1922	 for more than 12 years	 as barred by limitation under article 134 of the Limitation Act. The Court decreed the suit in respect of the mortgaged portion of R. section No. 1735	 having an area of 16 acres and 21 gunthas	 as against defendant No. 3	 and R. section No. 334 against defendant No. 1 's heirs. Each party was directed to bear its own costs throughout. From that decision	 the defendants preferred a first appeal	 being First Appeal No. 361 of 1948	 and the plaintiff filed a crossings	 being First Appeal No. 363 of 1948	 in the High Court of Judicature at Bombay. Both the appeals were heard together along with two other cross appeals arising out of the other suit mentioned above. The High Court	 by its judgment and decree dated October 9	 1950	 dismissed the defendants ' appeal No. 361 of 1948	 and allowed the plaintiff 's appeal No. 363 of 1948	 with costs	 holding that article 148 and not article 134 of the Limitation Act	 applied to the suit	 and that	 therefore	 it was not barred by limitation. In the result	 the plaintiff 's suit was decreed in its entirety. Hence	 this appeal by the defendants. A number of Questions of fact and law have been raised by the learned counsel for the appellants	 but before we proceed to deal with them	 it is convenient to dispose of the preliminary points in bar of the suit. At the fore front of his submissions	 the learned counsel for the appellants contended that the suit was outside the jurisdiction of the Special Court created under the Sangli State Agriculturists Protection Act I of 1936. With reference to the provisions of that Act	 it was contended that the Act authorized the Special Court to 483 take accounts and to reopen closed transactions only up to the year 1915	 and that as the transactions which were the subject matter of the suit	 were of the years 1898	 1900 and 1901	 the Special Court was not competent to go into those transactions and grant any relief to the agriculturist plaintiff. In our opinion	 there is no substance in this contention. The Sangli Act referred to above	 had chosen the year 1915 as the dateline beyond which the court was not competent to grant any relief to agriculturists	 by way of reopening of closed transactions. But that does not mean that the court itself was incompetent to grant any other relief in respect of transactions of a date prior to 1915. If the legislature had intended to limit the jurisdiction of the Special Court	 as contended on behalf of the appellants	 nothing would have been easier than to say in express terms that the court 's jurisdiction to grant relief was limited to transactions of that year and after	 but there are no such words of limitation in any part of the statute. The operative portion of the statute does not contain any such provision. In our opinion	 therefore	 the Special Court was competent to entertain the suit for redemption	 though it would not be competent to reopen those transactions even if any such question of reopening closed transactions had been raised. But it is manifest that no such question arose out of the pleadings in this case. Hence	 those words of limitation are wholly out of the way of the plaintiff. It may be mentioned that no such plea of want of jurisdiction of the trial court	 had been raised in the pleadings or in the issues in the courts below. This ground was raised	 for the first time	 in the statement of case in this Court. The preliminary objection to the jurisdiction of the trial court is	 thus	 overruled. It was next contended that the suit was barred by limitation of one year under article 12 of the Limitation Act. The point arose in this way. The properties sought to be redeemed were mortgaged	 as will presently appear	 successively under three bonds of the years 1898	 1900 and 1901	 by the plaintiff 's father	 Gundi (omitting all reference to his brothers). 484 It appears that there was a decree for money of the year 1903	 in favour of a third party who is not before us. Gundi had been stied as the original defendant	 but after his death	 his place was taken by his brother Sadashiv as his heir and legal representative. In execution of the decree	 the mortgaged properties were auction purchased by the mortgagee 's Fulchand	 son of the first defendant as it appears from the sale certificate	 Exh. D 56	 dated October 31	 1907. On the basis of this auction purchase	 it	 has been contended on behalf of the mortgagee that unless the sale were set aside	 it would bind Gundi and his successor in interest	 the plaintiff. The High Court has held that article 12 is out of the way of the plaintiff because neither the plaintiff nor her father was a party to the sale. If Gundi himself were a party to the execution proceedings	 the sale as against him	 would bind his estate and his successor in interest. But it appears that Gundi was substituted by his brother Sadashiv in the execution proceedings. If Sadashiv could not be the representative in interest of Gundi	 as will presently appear	 he could not have represented Gundi 's estate	 and	 therefore	 the gale as against him	 would be of no effect as against the plaintiff. Bat it was argued in answer to this contention that the decision of the Privy Council in the case of Malkarjun Bin Shidramappa Pasare vs Narhari Bin Shivappa (1)	 is an authority for the proposition that even if the property was sold by substituting a wrong person as the legal representative of the judgment debtor	 the sale would bind the estate of the judgment debtor as much as if the right legal representative had been brought on the record of the execution proceedings. Assuming that the decision of the Privy Council in Malkarjun 's case (supra) is correct	 and that it is not subject to the infirmities of an ex parte judgment	 asimay well be argued	 that decision is clearly distinguishable so far as the present case is concerned. In Malkarjun 's case	 the executing court had been invited to decide the question as to who was the true legal representative of the judgment debtor	 and the court	 after (1) (1900) L.B. 27 1	 A. 216 485 judicially determining that controversy	 had brought on record the person who was adjudged to be the true legal representative. The sale was held to be of the property of the judgment debtor through his legal representative	 after the adjudication by the court. The Privy Council held that though the decision of the court on the question as to who was the true legal representative	 was wrong	 it was a decision given in that litigation which affected the judgment debtor and his true legal representative	 unless set aside in due course of law. In the present case	 there was no such adjudication. From the scanty evidence that we have on this part of the case	 it appears that Gundi	 the original defendant	 had died and had been	 without any controversy	 substituted by his brother	 Sadashiv. The court had not been invited to determine any controversy as between Sadashiv and the true legal representative of Gundi deceased. In execution proceedings	 the property was sold as that of Sadashiv the substituted judgment debtor. It was a moneysale and passed only the right title and interest of Sadashiv	 if it bad any effect at all. Malkarjun 's case (supra)	 therefore	 is of no assistance to the appellants. The plaintiff	 Gundi 's daughter	 not being affected in any way by the sale aforesaid	 it is not necessary for her to sue for setting aside the sale. She was entitled	 as she has done	 to ignore those execution proceedings	 and to proceed on the assumption	 justified in law	 that the sale had not affected her inheritance. The suit is	 therefore	 not barred by article 12 of the Limitation Act. It was next contended that even if article 12 was not available to the defendants by way of a bar to the suit	 the suit was certainly barred under article 134 of the Limitation Act. Under article 134	 the plaintiff has to sue to recover possession of immovable property mortgaged and	 afterwards	 transferred by the mortgagee for a valuable consideration	 within 12 years from the date the " transfer becomes known to the plaintiff ". On the other hand	 it has been contended on behalf of the plaintiff that the usual 486 rule of 60 years ' limitation under	 article 148 of the Limitation Act	 governs the present case. On this part of the case	 the defendants suffer from the initial difficulty that the sale deeds relied upon by them in aid of the plea of limitation under article 134	 have not been brought on the record of this case	 and	 therefore	 the Court is not in a position to know the exact terms of the sale deeds. This difficulty	 the appellants sought to overcome by inviting our attention to the statements made in paragraph 8 of the plaint. But those are bald statements giving the reasons why the defendants other than the original mortgagee	 were being impleaded as defendants. There is no clear averment in that paragraph of the plaint about the extent of the interest sold by those sale deeds and other transfers referred to therein. The Court is	 therefore	 not in a position to find out the true position. Those sale deeds themselves were the primary evidence of the interest sold. If those sale deeds which are said to be registered documents	 were not available for any reasons	 certified copies thereof could be adduced as secondary evidence	 but no foundation has been laid in the pleadings for the reception of other evidence which must always be of a very weak character in place of registered documents evidencing those transactions. Article 134 of the Limitation Act contemplates a sale by the mortgagee in excess of his interest as such. The legislature	 naturally	 treats the possession of such transferees as wrongful	 and therefore	 adverse to the mortgagor if he is aware of the transaction. Hence	 the longer period of 60 years for redemption of the mortgaged property in the hands of the mortgagee or his successor in interest	 is cut down to the shorter period of 12 years ' wrongful possession if the transfer by the mortgagee is in respect of a larger interest than that mortgaged to him. In order	 therefore	 to attract the operation of Art	. 134	 the defendant has got affirmatively to prove that the mortgagee or his successor in interest has transferred a larger interest than justified by the mortgage. If there is no such proof	 the shorter period under article 134 is not available to the 487 defendant in a suit for possession after redemption. A good deal of argument was addressed on the question as to upon whom lay the burden to prove the date of the starting point of limitation under that article. It was argued on behalf of the defendants appellants that as it is a matter within the special knowledge of the plaintiff	 the plaint should disclose the date on which the plaintiff became aware of the transfer. On the other hand	 it was contended on behalf of the plaintiff respondent that it is for the defendants to plead and prove the facts including the date of the knowledge which would attract the bar of limitation under article 134. As we are not satisfied	 for the reasons given above	 that article 134 is attracted to the present case	 it is not necessary to pronounce upon that controversy. It is	 thus	 clear that if articles 12 and 134 of the Limitation Act	 do not stand in the way of the plaintiff 's right to recover posses. 	ion	 the only other Article which will apply to the suit	 is article 148. It is common ground that if that Article is applied	 the suit is well within time. Before dealing with the factual aspects of the case	 it is necessary to deal with another plea in bar of the suit raised on behalf of the appellants. It is contended that the suit is bad for defect of parties in so far as the heirs of the second defendant are concerned. It appears from the order dated March 27	 1946	 passed by the trial court during the pendency of the suit after remand	 that the second defendant died on April 26	 1943	 that is to say	 while the appeal before the Bombay High Court was pending in that Court before remand. The then appellant who was the plaintiff	 did not take steps to bring on record the legal representatives of that defendant. An attempt was made by the plaintiff later on to get his heirs substituted on the record	 but the Court upheld the defendants objection and did not allow substitution to be made. It was	 therefore	 noted that the appeal which was then pending in the High 'Court	 had abated as against defendant No. 2	 and that	 the order of remand made after his death and in the absence of his legal representatives	 would not affect them. Therefore	 it was 488 contended that the whole suit would abate	 because	 in the absence of the heirs of the deceased defendant No. 2	 the suit was imperfectly constituted under 0. 34	 r. I of the Code of Civil Procedure. That rule requires that " all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties. . The original mortgagee. under the three mortgages	 was Kasturchand Kaniram. The defendant No. 1 has contested this suit by filing a separate written statement of his own as the successor in interest of the original mortgagee. It does not appear from the pleadings that the second defendant was a joint mortgagee with the first defen dant or his ancestors. The only statement in the plaint in para. 8	 with reference to the second defendant	 is that the " Lands R. section No. 1735 has gone to the share of defendant No. 2. Defendant No. 3 looks after all the transactions of defendant No. 2 and the shop running under the name of ' Kaniram Kasturchand ' has gone to the share of defendant No. 3 ". Thus	 it is not a case of the first defendant being joint with the other defendants including defendant No. 2 who is not now represented on the record. If defendant No. 2 had any distinct interest	 that	 on the plaint	 appears to be confined to R. section No. 1735. In the written statement filed on behalf of the third defendant	 it is stated in para. 9 that the mortgaged portion of R. section No. 1735 which	 according to the plaint	 was the property of the second defendant	 was really in possession of the third defendant as owner. It would	 thus	 appear that even in respect of that plot	 the second defendant had no subsisting interest. This claim of the third defendant is strengthened by the fact that the second defendant did not file any written statement challenging he statement aforesaid of the third defendant or claiming any interest in that plot or any other part of the mortgaged property. The second defendant had remained ex parte throughout	 apparently because he had no interest in the property to be redeemed. In any view of the matter	 his heirs are not parties to this suit	 and any determination in this suit will not bind them. But it does appear that 489 the second defendant had no subsisting interest	 if he had any at any anterior period	 in any portion of the mortgaged property. It was also contended that the original defendant No. 8 died	 and in his place defendants Nos. 8a to 8g were substituted. It appears that of the seven persons substituted on the record as the legal representatives of the original defendant No. 8	 only defendants 8e	 8f and 8g were served	 and the others	 namely	 8a	 8b	 8c and 8d were not served. On those facts	 it was contended that the suit for redemption was bad in the absence of all the necessary parties. It was sought	 at one stage of the arguments	 to be argued that the suit had abated against defendant No. 8	 and this argument	 in the High Court	 was met by the observation that under O. XXII	 r. 4	 Code of Civil Procedure	 it was enough to bring on record only some out of the several legal representatives of a deceased party	 on the authority of the judgment of the Bombay High Court in Mulchand vs Jairamdas (1). But on the facts stated above	 there was no room for the application of r. 4	 O. XXII of the Code. All the legal representatives	 at any rate	 all those persons who were said to be the legal representatives of the deceased defendant No. 8	 had been substituted. Thus	 the requirements of O. XXTI had been fulfilled. If	 subsequently	 some of the heirs	 thus substituted	 are not served	 the question is not one of abatement of the suit or of the appeal	 but as to whether the suit or the appeal was competent in the absence of those persons. It does not appear that the absent parties were really necessary parties to the suit or the appeal in the sense that they were jointly interested with the others already on the record in any portion of the mortgaged property. In what circumstances they were not served or ordered to be struck off from the record	 does not clearly appear from the printed record before us. The defendant No. 8e who happens to be the brother of the original defendant No. 8	 has only filed a written statement claiming that he and his vendor	 defendant No. 7	 had been in possession for more than 12 years	 and that (1) 	 490 the suit was	 on that count	 barred by limitation. None of the other defendants who had been brought on the record in place of the original defendant No. 8	 has appeared in the suit or in the appeal to contest the claim of defendant No. 8e that he was in possession of that portion of the property	 namely	 6 acres and 32 gunthas out of R. section No. 242 (old survey No. 233). Renee	 there was no question of abatement of the suit or the appeal. The only question which may or may not be ultimately found to be material on a proper investigation	 may be whether the decree to be passed in this case	 would be binding on those who had not been served. For ought we know it may be that they were not interested in the plot sought to be redeemed. On these findings	 it must be held that the preliminary objections raised on behalf of the defendants in bar of the suit	 must be overruled. Hence	 the whole suit cannot be held to be incompetent for the reason that the heirs of defendant No. 2 have not been brought on the record. Having	 thus	 disposed of the specific pleas in bar of the suit	 we now turn to the contentions bearing on the factual aspects of the controversy. It was contended that the plaintiff who is admittedly the daughter of Gundi	 has not established her title to the mortgaged properties. In this connection	 it is convenient to set out the essential facts in relation to the three mortgage. deeds in question. The first mortgage is dated June 4	 1898	 in favour of Kasturchand Kaniram	 executed by Gundi	 son of Appa	 for the sum of Rs. 700	 the amount borrowed by him	 mortgaging 7 survey numbers with an aggregate area of 43 acres and 38 gunthas. It was a mortgage with possession for a period of 4 years	 with Gundi 's two brothers Sadashiv and Rama as sureties for the repayment of the amount borrowed which was the personal responsibility of Gundi under the terms of the document. But the property mortgaged is admittedly the ancestral land of the three brothers. The second mortgage between the same parties in respect of the same properties	 bears the date May 25	 1900. It secures a further advance of Rs. 300 to the mortgagor	 the payment of which debt 491 is again assured by his two brothers Sadashiv and Rama as sureties. The third mortgage bond is for a further advance of Rs. 200 to the mortgagor Gundi	 with his brothers aforesaid again figuring as sureties. It would	 thus	 appear that all the three mortgages are between the same parties as mortgagor and mortgagee	 and the two brothers of the mortgagor join in executing the mortgages as sureties	 the property given in mortgage belonging to all the three brothers. The total advance of Rs. 1	200 under those three mortgages	 was made to the principal debtor	 Gundi. It appears that	 of the three brothers	 Rama died first	 and then Gundi	 some time in 1903	 survived by his two daughters the plaintiff and defendant No. 13. The plaintiff 's case is that the common ancestor	 Appa	 in his lifetime	 had effected a partition amongst his three sons aforesaid	 giving them each specific portions of his lands	 reserving a portion for the maintenance of his wife. Those transactions are exhibits P 43	 P 44	 P 45 and P 46	 all dated August 31 or September 1	 1892	 and	 apparently	 forming parts of the same transaction. These are formal documents giving details of the lands allotted to each one of the three brothers and to their mother by way of maintenance. The common recital in these documents	 is that the executant of the documents	 Appa	 had three sons Gundi	 Sadashiv and Rama	 in order of seniority " who cannot pull on together The document further recites: ".Hence	 separation having been effected with your consent	 (I have) divided in every way and given you the estate	 the land	 the assets etc. 	 pertaining to the one third share. The same are as under. " Then follow the details of the properties separately allotted to each of them. The plaintiff 's case is that ever since 1892 the date of the documents aforesaid the three branches of the family had become separate in estate	 if not also divided in all respects	 and that on the death of Raina	 Guildi and his brother Sadashiv inherited his one third share in equal moieties	 that is to say 	 on the death of their mother and their brother	 the two brothers became owners of half and half of the ancestral 492 property left by Appa who appears to have died soon after the alleged partition. The plaintiff 's case further is that the principal mortgagor in all those three transactions aforesaid	 was Gundi	 and his two brothers had joined only as sureties by way of additional security in favour of the mortgagee	 It has been contended on the other hand on behalf of the defendants appallants that	 in the first instance	 the documets of 1892	 referred to above	 do not evidence an actual partition by metes and bounds	 but only represent an arrangement by way of convenience for more efficient and peaceful management of the family property	 and that	 alternatively	 if those documents are claimed to have the efficacy of partition deeds	 they are inadmissible in evidence for want of registration. The courts below have held that those documents are inadmissible in evidence as regular deeds of partition which they purport to be	 in view of the provisions of the Registration Act. But those transactions have been used for the collateral purpose of showing that from that time	 the three brothers became separate in estate	 and evidencing the clear intention on the part of each one of them to live as separated members	 each with one third share in the paternal estate. In this connection	 reliance was placed on behalf of the appellants ' upon what was alleged to be the subsequent conduct of the three brothers after 1892	 as evidenced by the three mortgage bonds themselves and the saledeed exhibit D 54 dated June 17	 1909. By the last named document	 Sadashiv purported to sell to Fulchand Kasturchand	 son of the original mortgagee	 practically the whole of the mortgaged properties	 for a sum of Rs. 1	500. The recitals in the sale deed would certainly make it out that the three brothers were joint in estate	 and that the sale deed was being executed to pay off the personal loans of Gundi and Rama during the Years 1900 to 1903	 plus the loans taken by the vendor himself. Finally	 the deed proceeds to make the following very significant declaration as to the status of the members of the so called joint family: "As I have sold to you my right	 title and interest in the above said lands	 neither I nor my heirs and 493 executors of my will have any right whatsoever over the said property. As I am the male heir in the joint family by survivorship nobody except me has any interest in the aforesaid lands. I have sold to you whatever interest I had in the said	 lands. " It was further contended that even strangers to the family treated the brothers as joint in estate as shown by the execution proceedings and the sale certificates of the years 1903 to 1907	 whereby Sadashiv was substituted as the sole heir and legal representative of the defendant Gundi	 in the suit for money which resulted in the	 auction sale referred to above	 of the ear 1907. If the transaction of the year 1892	 is admissible in evidence	 for the purpose for which the document was used in the courts below	 namely	 to prove separation in estate	 there is no room for ambiguity	 and the position is clear that the three brothers had become separate. Further recitals in those documents that specific portions of the ancestral property had been allotted to the three brothers separately	 being in the nature of a partition deed by the father in his life time	 and being unregistered	 are inadmissible in evidence to prove such a partition. But the plaintiff 's case does not depend upon proof of actual partition by metes and bounds. In the absence of any ambiguity	 the later transactions would not be relevant except to show that there was a subsequent reunion amongst the brothers	 which is no party 's case. But it was argued on behalf of the appellants that those documents exhibits P series aforesaid are not admissible in evidence even for the limited purpose of showing separation in estate. The question	 therefore	 is whether those documents " purport or operate to create	 declare	 assign	 limit or extinguish	 whether in present or in future	 any right	 title or interest	 whether vested or contingent	 of the value of one hundred rupees and upwards	 to or in immovable property"	 within the meaning of section 17(1) (b) of the Registration Act. No authority has been cited before us in support of this contention. Partition in the 63 494 Mitakshara sense may be only a severance of the joint status of the members of the coparcenary	 that is to say	 what was ' once a joint title	 has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what ordinarily is understood by partition amongst co sharers who may not be members of a Hindu coparcenary. For partition in the former sense	 it is not necessary that all the members of the joint family should agree	 because it is a matter of individual volition. If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family	 that effects a partition	 so far as he is concerned	 from the rest of the family. By this process	 what was a joint tenancy	 has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners	 agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally	 but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition	 it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition	 and is	 thus	 within the mischief of section 17(1) (b)	 the material portion of which has been quoted above. But partition in the former sense of defining the shares only without specific allotments of property	 has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property	 may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds	 that is to say	 the partition in the latter sense	 it does not come within the purview of section 17(1) (b)	 because so long as there has been no partition in that sense	 the interest of the separated member continues to extend over the whole joint property as before. Such a transaction 495 does not purport or operate to do any of the things referred to in that section. Hence	 in so far as the documents referred to above are evidence of partition only in the former sense	 they are not compulsorily registrable under section 17	 and would	 therefore	 not come within the mischief of section 49 which prohibits the reception into evidence of any document " affecting immoveable property ". It must	 therefore	 be held that those documents have rightly been received in evidence for that limited purpose. Lastly	 it was contended that if those documents of the year 1892 are admissible to prove separation amongst the three brothers	 then	 oil the death of one of the three	 namely	 Rama	 and of their mother	 the entire ancestral properties including the mortgaged properties	 vested in the two brothers in equal shares. Both by the auction purchase of the year 1906 (D 57 D) and the sale deed (exhibit D 54 of the year 1909)	 Sadashiv 's moiety share in the mortgaged property	 was purchased by Fulchand aforesaid. The plaintiff	 therefore	 could only claim the other moiety share of her father	 Gundi. In our opinion	 there is no answer to this contention because it is clear upon a proper construction of the three mortgage bonds and on the plaintiff 's own case that the entire ancestral properties and not only Gundi 's share	 had been mortgaged. The appeal will	 therefore	 be allowed to the extent of the half share rightly belonging to Sadashiv	 and the decree for possession after redemption will be confined to the other half belonging to the plaintiff 's father. In the result	 the appeal is allowed to the extent indicated above. As success between the parties	 has been divided	 they are directed to bear their own costs throughout. Appeal allowed in part.

Summary:
This was an appeal by the defendants in a suit for possession on redemption of certain mortgages instituted in the Court of the Special judge exercising jurisdiction under the Sangli State Agriculturists Protection Act (1 of 1936). Their case was that the mortgaged properties had been sold at auction and purchased by their father who had sold most of them to other persons more than 12 years before the institution of the suit and as such the suit was barred by limitation. The trial Court dismissed the suit. On appeal the High Court of Sangli permitted the plaintiff to amend the plaint originally filed so as to include the relief for redemption and remanded the suit. The trial court	 thereafter	 decreed the suit in part	 holding that the claim in respect of portions only of the mortgaged properties was barred by limitation. Both the parties appealed to the High Court of Bombay and the appeals were heard together. The High Court dismissed the defendant 's appeal and allowed the plaintiff 's appeal holding that article 148 and not article I34 Of the Limitation Act applied. In the result	 the plaintiff 's suit was decreed in its entirety. Held	 that the preliminary objection that the Special judge had no jurisdiction under the Sangli State Agriculturists Protection Act to entertain the suit must be overruled. The fixing of 	915 as the date line by the Act had reference to such reliefs as could be had only by way of reopening of closed transactions and could not	 therefore	 preclude the Special Judge from granting other reliefs in respect of transactions entered into prior to 1915. Nor could it be contended in bar that the plaintiff was bound in the first instance to set aside an auction sale of the mortgaged properties in execution of a money decree in which she was not substituted in place of her deceased father as his true heir and legal representative nor made a party and no controversy was raised by the parties nor decided by the Court as to who was the true legal representative. The plaintiff was entitled to ignore the sale and the suit was not barred under article 12 of the Limi tation Act. 480 Malkarjun Bin Shidramappa Pasare vs Narhari Bin Shivappa	 (1900) L.R. 27 I.A. 216	 doubted and distinguished. In order that article I34 of the Limitation Act might be attracted to a suit for possession on redemption	 it was necessary for the defendant to prove affirmatively that the mortgagee or his succesor in interest had transferred a larger interest than was justified by the mortgage. Where	 as in the present case	 this was not done	 article 134 could not apply and the only other article which could apply was article 148 Of the Limitation Act. Under the Mitakshara School of Hindu Law partition may be either (1) a severance of the joint status of the coparcenary by mere defining of shares but without specific allotments or (2) partition by allotment of specific properties by metes and bounds according to shares. The latter	 if reduced to writing becomes compulsorily registrable under section I7(1)(b) of the Indian Registration Act but the former does not. Consequently	 in the present case such unregistered docu ments as were adduced by the plaintiff for the limited purpose of proving partition in the former sense did not fall within the mischief Of section 49 of the Indian Registration Act and were admissible in evidence.