PETITIONER: <NAME> AND OTHERS Vs. RESPONDENT: <NAME> DEVI DATE OF JUDGMENT: 05/03/1962 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. CITATION: 1962 AIR 1464 1962 SCR Supl. (3) 564 CITATOR INFO : RF 1967 SC 801 (39) F 1969 SC 971 (15,16) D 1971 SC1678 (6,16) ACT: Execution--Personal decree against mortgagor--Mortgaged estate vesting in the State--Effect on claim pending--Bihar Land Reforms Act, 1950(Act 30 of 1950), s. 4(d). HEADNOTE: The appellant obtained a preliminary decree, on an anomalous mortgage of a share in the Zamindari village of Sonchari <NAME> in the Patna District and khudkasht land appertaining to the <NAME>, against the mortgaged properties with a direction for a personal decree for the balance and there followed a final mortgage decree on 30.9.1947. An application for execution against the mortgaged properties was dismissed on 9.1.1954 as in the meantime the mortgaged properties which constituted an estate within the meaning of s. 2(1) of the Bihar Land Reforms Act, 1950, had vested in the State. Execution was sought personally against the mortgagor by attachment and sale of other, properties of the mortgagor and it was ultimately ordered by the executing court. The 565 Patna High <ORG> in revision held that in view of s. 4(d) of the Bihar Land Reforms Act, 1950, the execution petition could not proceed and dismissed it. On appeal to this <ORG> it was contended that s. 4(d) of the Act prohibited execution only against the mortgaged property not in respect of the personal decree. It was brought to the notice or this <ORG> that the appellant had preferred a claim tinder the Act and that the Claim Officer had deter- mined a sum of Rs. 58,100/- with interest at 4 per cent as payable to the appellant from the compensation payable on abolition of the Estate. Held, that s. 24(5) of the Act made the compensation payable on acquisition of the mortgaged estate a kind of substituted security against which the mortgage claim would be enforced under the provisions of the Act. According to the Scheme of the Act the debts of the proprietors in respect of the estate were to be investigated and adjusted exclusively by the <ORG> tinder the Act. On a proper construction, s. 4(d) of the Act precluded the executing <ORG> from enforcing the direction for a personal decree for realising the mort- gage debt at present ; it could only be done eventually if the realisation from the mortgaged property was found insufficient to satisfy the decree, as in the present case the whole of the mortgaged property was an estate, in respect of which a claim was pending. <ORG> v. <NAME> (1883) 12 Q.B.D. 176, <NAME> v. <NAME>, (1953) I.L.R 32 Pat. 581, <CITATION> , A.I.R. 1958 Pat. 630 and <CITATION> ., (1962) 2 S.C.R. 441 referred to. JUDGMENT:

CIVIL, APPELLATE JURISDICTION : Civil Appeal No. 352 of 1959.

Appeal from the judgment and decree dated January 8, 1957, of <ORG> in Civil Revision No. 590 of 1955. <NAME> and <NAME>, for the appellants.

<NAME> and <NAME>, for the respondent. 1962. March 5. The judgment of the Court delivered by GAJENDRAGADKAR, J.-This appeal has been brought to, this Court with a certificate issued by <ORG> and it raises as short question about the scope and effect of the provisions of section 4(d) of the Bihar Land Reform Act, 1950 (30 of 1950) (hereinafter called the Act). The res- pondent Smt. <NAME> along with her husband, <NAME>, executed a regisbored anomalous mortgage in favour of the appellants <NAME> and his three sons on the 10th of July, 1937, for a sum of Rs. 35,000/-. The document evidenced a combination of 'Sudharna' as well as simple mortagage and the period specified in it was five years. The respondent was the principal mortgagor and by the mortgage deed she mortgaged 10 annas and 8 pies Hakiat Milkiat of village Sonchari <ORG> No. 11 912 in the district of Patna which was the Zamindari property and 16.41 acres of khudkasht land appertaining to khata No. 3 of the said <ORG>.

The appellants sued on this mortgage to recover Rs. 69,816/51/17 in the court of the SubJudge at Patna. The said suit ended in a decree in favour of the appellants on the 26th August,1946. The trial Judge ordered that for the satisfaction of the decretal amount, "the mortgage properties would be charged preliminary and if the decretal amount is not fully satisfied from them, then alone the respondent would be personally liable for the satisfaction of the balance, if any." That is how a composite decree came to be passed in the suit. By the final decree which followed on the 30th September, 1947, the respondents liability to pay Rs. 52,950/3/- was determined. The appellants then filed an Execution Case No. 6 of'1952 and that the decretal amount should be realised by sale of the 'mortgaged Zamindari properties. The respondent raised an objection against the appellants' claim on the ground that the mortgaged properties had in the meanwhile vested in the State of Bihar under the provisions of the Act and so, they were not liable to sale in execution proceedings as the respondent had ceased to have any interest in them. Ultimately, the Execution Case filed by the appellants was dismissed on the 9th January, 1954. When the respondent contested the Execution Case on the ground that the mortgaged properties had vested in the State of Bihar, the appellants applied for transfer of their decree for the execution to <ORG>. They intimated to the Court that they wanted to execute the decree against the respondent by. proceeding against or properties other than those which were the subject-matter of the mortgage and they alleged that they were entitled so to do by reason of the personal decree which had been passed against her. The application made by the appellants for the transfer of decree was granted and the decree was transferred on the 22nd of January, 1954 with a certificate of non-satisfac- tion.

The appellants then filed Execution Case No. 19 of 1954 in <ORG> at Gaya and sought to recover the decretal amount by attachment and sale of other properties belonging to the respondent. In these proceedings, the respondent filed an objection under section 47 of Code and it was numbered as Misc. Case No. 96 of 1954. She urged that the appellants had not obtained a personal decree against her and so., the claim made by them in their Execution Case was not maintainable. She also contended that the appellants could not proceed against her other properties because their remedy was to follow the compensation money which would be given by the State of .Bihar to her in lieu of her properties which had vested in the said State.

It appears that on the 23rd December, 1954, the Misc. Case No. 96 of 1954 filed by the respondent was allowed ex-parte by the Sub-Judge at Gayna and, in consequence, the Execution Case No. 19 of 1954 filed by the appellants was dismissed. The appellants then applied for review of the said order and prayed that their Execution Case should be restorer to file and should be dealt with in accordance with law. On the 20th April, 1915, <ORG> allowed the appellants' application for review and held that the appellants had obtained a personal decree against the respondent and that they had a right to sell the other properties of the respondent in execution of the said personal decree. That is how <ORG> directed that execution should proceed as prayed for by the appellants.

The respondent challenged this order by preferring a Civil Revision Application before <ORG> and it was numbered as 590 of 1955. <ORG> held that a personal decree had been passed in favour of the appellants, though that part of the direction given in the judgment had not been formally incorporated in the decree. <ORG> therefore, rejected the respondent's contention that no personal decree had been passed since an application had not been made by the appellants under Order 34 Rule 6 of the C.P.C. <ORG> also rejected the respondent's argu- ment that a Review Application did not lie against the first order passed by <ORG>, though it thought that there was some substance in 'the contention raised by the respondent that, on the merits, the review need not have been granted. Even so, <ORG> did not choose to base its decision on this contention. It has allowed the Revision Application on the merits because it has held that the appellants have no right to execute the personal decree by proceeding to sell the other properties of the respondent, for section 4(d) of the Act constitutes a bar against such proceedings. on this view, <ORG> allowed the Revision Application, set aside the order passed by <ORG> in favour of the appellants and has ordered that the Execution Application filed by the appellants should be dismissed. The appellants then applied for and obtained a certificate from <ORG> and it is with the said certificate that they have come to this Court; and so, the point which falls to be decided is in regard to the scope and effect of section. 4(d) of the Act. We ought to add that the respondent's objection against the competence of the appellants' application for review has not been pressed before us.

Before dealing with the said point, it would be convenient to state some material facts. The first material fact is that all the properties mortgaged by the respondent in favour of the appellants constitute an estate under section 2(1) of the Act, so that we are dealing with a case where the entire mortgaged property belonging to the mortgagor proprietor has vested in the State of Bihar. It is not a case where part of the properties mortgaged has vested in the State while some of them continue to be vested in the mortgagor.

The second point which has to be borne in mind in dealing with the present controversy is that the appellants seek to execute the personal decree against the respondent. There is no doubt that under 0. 34 R. 6 of the Code, a personal decree can be passed on an application made by the mortgagee decree-holder only where the net proceeds of any sale held under 0.34 R. 5 are found to be insufficient to pay the amount due to the decree-holder, that is to say, it is only after the mortgagee decree-bolder has exhausted his remedy against the mortgaged property that he is entitled to apply to recover the balance from the mortgagor judgment-debtor personally otherwise than out of the properties mortgaged. It may be that in the case of a composite decree, an application as contemplated by 0. 34 R. 6, may not be necessary ; but in that connection, it may be relevant to bear in mind that under the normal procedure prescribed by 0. 34 R.6, recovery of the balance due under a mortgage decree is ordered on an application by the mortgagee decree-holder where it is shown that the net proceeds of any sale held under the mortgage decree are insufficient to pay the amount due under the decree. Besides, the order passed by <ORG> in its judgment which has been treated in substance to constitute a personal decree in the present proceedings, makes the position quite clear. The learned Judge directed that for the 'satisfaction of the decretal 'amount, the mortgaged properties would be charged preliminary and he added that if the decretal amount is not fully satisfied from them, then the appellants would be entitled to proceed against the respondent personally. In other words, the decree clearly and unambiguously provides that the appellants would be justified in executing the personal decree against the respondent only if and after they have exhausted their remedy against the mortgaged properties and have not been able to recover the whole of the decretal amount by that process. That is the second material fact which-has to be borne in mind.

Then the third fact to which reference must be made is that after the prescribed notification was issued and the mortgaged properties belonging to the respondent had vested in the State of Bihar, the appellants applied under section 14 of the Act notifying their claim under the mortgage decree to the Claims Officer, and, in fact, on the 24th November, 1956, the Claims Officer has determined that a sum of Rs. 58,100/- plus future interest at 4% per annum over the principal amount only but limited to the total interest not exceeding the amount of the principal, would be payable to the appellants out of the compensation amount payable to the respondent in respect of the properties mortgaged. This fact was not known to the respondent at the time when her Revision Application was argued before <ORG>, because it appears that the respondent did not appear in the proceedings before the Claims Officer. The said fact has, however, been stated before us by the respondent on an affidavit and its correctness is not disputed by the appellants. It is in the light of these facts that we have to decide whether <ORG> was right in holding that the appellants' application for execution at the present stage is incompetent in view of the provisions of section 4(d) of the Act.

Let us then briefly refer to the relevant provisions of the Act which would enable us to construe section 4(d) and determine its scope and effect. As is well-known, the Act was passed to provide for the transference to, the <ORG> of the interests of proprietors and tenure- holders in land and of the mortgages and lessees of such interests and to provide for the constitution of <ORG> for the <ORG> of Bihar with powers to advise <ORG> on the agrarian policy to be pursued by the said Government consequent upon such transference and for other matters connected therewith. The object of the Act which is writ large on its provisions was to eliminate the intermediaries and establish direct relation between the <ORG> and the cultivators. This policy has subsequently been adapted in many other <ORG>s in order to bring about the much needed agrarian reform, Section 2(1) defines estate" meaning any land included under one entry in any of the general registers of revenue-paying lands and revenue-free prepared and maintained under the law for the Lime being in forever by the Collector of a district and includes revenue-free land not entered in any register and a share in or of an estate. It is common ground that the mortgaged properties with which we are concerned in the present appeal are an estate under section 2(i) . Similarly, it is common ground that the respondent is a proprietor as defined in s. 2 (o). Section 3 enables <ORG> to declare from time to time by noti- fication that the estates or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the <ORG>. The notification contemplated by s. 3 (1) has been issued in respect of the estate in question. Section 4 prescribes the consequences of vesting of an estate or tenure in the <ORG>. Broadly stated, the effect of s. 4(a) is that an estate in respect of which a notification has been issued shall, with effect from the date of vesting vest absolutely in the <ORG> free from all encumbrances and the proprietor of the said estate shall cease to have any interests in such estate, other than the interest expressly saved by or under the provisions of the Act. That takes us to section 4(d) which provides that no suit shall lie in <ORG> for the recovery of. any money due from such proprietor or tenure-holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped. It is conceded that s. 4(d) takes in cases where decrees have been passed and that the word "proceedings" used in its latter portion covers execution proceedings. It is, however, urged that the bar created by a. 4 (d) applies only to execution proceedings which are taken by mortgagees decree-holders to recover their decretal amount from estates which have vested in the <ORG> and that execution proceedings in which decree-holders seek to recover their decretal dues from properties other than those which have vested in the <ORG> are outside the mischief of s. 4 (d). In other words, Mr. <NAME> for the appellants contends that <ORG> was in error in adopting the broad and literal construction of section 4(d) . Before we deal with this argument, it would be convenient to refer to the other relevant sections of the Act. Section 14(1) prescribes the time within which a secured creditor has to file his claims. Every creditor, whose debt is secured by a mortgage of an estate, has, within the prescribed time, to notify in the prescribed manner his claim in writing to the Claims Officer appointed in that behalf. It is the function of the Claims Officer to determine the amount of debt legally 'and justly payable to each creditor in respect of his claim. Thus, it is clear that a mortgagee decree-holder has to apply within the specified time before the Claims Officer and that the Claims Officer would have to determine what is legally and justly due to him. Section 14(3) makes it clear that if the mortgagee decree-holaer fails to notify his claim as required by s. 14(1) , the said claim shall be barred, subject to the proviso which it is unnecessary to consider. The effect of section 14(3) , therefore, is that if a claim of the nature referred to in subsection (1) is not duly notified to the Claims Officer within the time and in the manner prescribed by the said sub-section, the said claim would be barred. The penalty for non-compliance with section 14(1) is thus clear. Section 15 requires the creditor to furnish full particulars and documents in support of his claim. Section 16(1) lays down that the Claims Officer shall determine the principal amount justly due to each creditor and interest due at the date of such determination in respect of such principal amount, 'the determination to be made in accordance with the rules made under the Act. Section 16(2) prescribes a scheme for the scaling down of the debts due by the judgment-debtor. Clauses (b) and (d) of section 16(2)  574 clearly suggest that the policy of the Act, inter alia, is to give relief to the debtors whose estates have by operation of the law vested in the <ORG>. Section 17 provides for an appeal against the decision of the Claims Officer to a <ORG> whose constitution is prescribed by section 18(1) . Section 18(3) lays down that the decision of the <ORG> and, where no appeal has been preferred to the <ORG>, the decision of the Claims Officer shall be final. So, the scheme of Chapter IV which consists of sections 14 to 18 clearly is that all claims based on mortgages relating to estates have to be submitted to the Claims Officer and the amounts due to the creditors have to be determined in accordance with the principles laid down by the Act. Where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to the creditor should be determined by the Claims Officer. The decision of the Claims Officer or the <ORG> has been made final by the Act.

Chapter V deals with the problem of the assessment of compensation. Section 24 provides for the rates of compensation. Section 24(5) lays down, inter alia, that in the case where the interest of a proprietor is subject to a mortgage, or charge, the compensation shall first be payable to the creditor holding such mortgage or charge and the balance' if any, shall be payable to the proprietor. It adds that the amount of compensation payable to a creditor shall be the amount determined under Chapter IV which, notwithstanding anything contained in any law for the time being in force, shall not in any case exceed the amount of compensation payable in respect of the estate or portion thereof which is subject to such mortgage, and where there are two or more such creditors, the compensation shall be payable to them in the order determined under the said Chapter. This provision is, in a sense, consequential and it provides for the payment of the amount already determined to be justly and legally due to the creditor and so, a claim which is made under section 14 would be determined under section 16 and the amount so determined will be paid under a. 24(5). Chapter VI deals with the payment of compensation, and section 32 provides for the manner of its payment. Thus, the scheme of Chapters IV, V & VI is clear. The provisions in the said Chapters constitute an integrated and self- sufficient Code for the determination of the amount due to the creditors in question and for their payments, and s. section 35 which occurs in Chapter VIII prescribes a bar to the jurisdiction of Civil Courts in the matters included in it. Under this section, 'no suit shall be brought in <ORG> in respect of any entry in or omission from a Compensation Assessment Roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceedings taken under the said Chapters. There can, therefore, be no doubt that the scheme of the Act postulates that where the provisions of the Act apply, claims of creditors have to be submitted before the Claims Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy outside the Act by instituting a suit or any other proceedings in the court of ordinary civil jurisdiction. It is in the light of this scheme of the Act that we must revert to section" 4(b) and determine what its true scope and effect are. Mr. <NAME> contends that in construing the words of Section 4(d) it would be necessary to bear in mind the object of the Act which was merely to provide for the transference to the <ORG> of the interests of the proprietors and tenure- holders in land and of the mortgagees and lessees of such interests. It was not the object of the Act, says Mr. <NAME>, to extinguish debts due by the proprietors or tenure holders and so, it would be reasonable to confine the operation of is. 4(d) only to the claims made against the estates which have vested in the <ORG> and, no others. In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act. It is true that one of the objects of the Act was to provide for the transference to the <ORG> of the estates as specified. But as we, have already seen, the provisions contained in section 16 in regard to the scaling down of the debts due by the proprietors and tenure-holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued under section 3 . Therefore, in construing s. 4(d) , it would not be right to assume that the interests of the debtors affected by the provisions of the Act do not fall within the protection of the Act. Mr. <NAME> fairly conceded that if the words used in a. 4(d) are literally construed and they are given their natural grammatical meaning, it would not be easy to limit the operation of s. 4(d) to execution proceedings where relief is claimed against the properties which have vested in the <ORG>. The relevant clause in section 4(d) provides that all suits and proceedings for the recovery of any such money which may be pending on the date of the vesting shall be dropped; and these words are wide enough to include within their sweep execution proceedings, even though the recovery of the amount due may have been claimed by the decree-holder from properties other than those which have vested in the <ORG>. The only limitation imposed by the clause is that the execu- tion proceedings should be for the recovery of any such money meaning any money due from the proprietor on the strength of a mortgage executed by him in respect of an estate. We have already emphasized that in the present case, the whole of the mortgaged property is an estate and, therefore, it is unnecessary for us to consider what would be the effect of the provisions of s. 4(d) in cases where part of the mortgaged property is an estate and part is not. It is alsounnecessary to consider whether s.4(d) would create abar even in cases where the compensation amount payable to the mortgagor is insufficient to satisfy the mortgagee decree- holder's claim even to the extent of the amounts scaled down under section 16 . Mr. <NAME>, however, suggested that rules of grammer should not be allowed to have an overriding effect if it is shown that putting a literal and grammatical construction on the relevant words would lead to unreasonable or anomalous results and in support of this argument, he has invited our attention to the observations made by <NAME>, M. R. in the case of <ORG> v. Tucker.(1) "When you construe a statute or document" observed <NAME>, M. R., "you do not construe it, according to the mere ordinary general meaning of the words, but according to the ordinary meaning of the words as applied to the subject-matter with regard to which they are used, unless there is something what obliges you to read them in a sense which is not their ordinary sense in the English. language as so applied. That., I take it, is the cardinal rule." We do not see how this principle can assist Mr. <NAME> in the present case. The scheme of the relevant provisions of the Act to which we have already referred unambiguously suggests that where the whole of the mortgaged property is an estate, certain consequences follow. The decree-holder has to make a claim; the claim has to be inquired into by the Claims Officer; the amount due to the decreeholder has to be determined by the Claims Officer (1) (1883) 12 Q.B.D. 176, 186.

and the amount so determined has to be paid to the decree- holder from out of the compensation money payable to the judgment-debtor. Having regard to the said scheme, it is difficult to confine the application of s. 4(d) only to execution proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the <ORG>, would be incompetent because the said estate no longer belong to the judgment-debtor. That being so, we are satisfied that on the facts of this case, <ORG> was fight in holding that the application made by the appellants to execute the decree against the respondent by proceeding against her non- mortgaged properties is incompetent at the present stage. The amount due to the appellants under the decree in question has been already determined by the Claims Officer and the appellants must first seek to recover that amount as provided by the relevant provisions of the Act before they proceed to execute the personal decree.

This conclusion follows even on the terms of the decree itself. We have already seen that the direction issued by <ORG> is explicit and clear. The said direction which is consistent with the provisions of 0. 34 B. 6 would enable the appellants to proceed personally against the respondent only if it is shown that the decretal amount is not fully satisfied from the proceeds of the mortgaged property. In the present case, the mortgaged property cannot be sold because it has vested in the <ORG> free of encumbrance; but in lieu of the mortgaged property, the respondent has become entitled to certain compensation amount and the appellants are given the statutory right to receive the amount due to them from the said compensation amount under section 2  4 (5). This provision is some what similar to the provision of section 73(2) of the  Transfer of Property Act which provides, inter alia that where the mortgaged property is acquired under the Land Acquisition Act , or any other enactment for the time being in force providing for the compulsory acquisition of immoveable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation. In a sense, the compensation amount payable to the respondent may prima facie, be treated to be like a security substituted in the place of the original' mortgaged property under section 73(2) of the Transfer of Property Act. However that may be, the terms of the decree require that the appellants must first seek their remedy from the said compensation amount before they can proceed against the non- mortgaged property of the respondent. The relevant directions in the decree do not justify the appellants' contention that because the mortgaged property has vested in the <ORG>, they are entitled to execute the personal decree without taking recourse to the remedy available to them under section 24(5) of the Act.

It now remains to refer to some decisions of <ORG> to which our attention was drawn during the hearing of this appeal. In <NAME> v. <NAME>, (1) <ORG> has held that section 4(d) of the Act is not applicable to a case where money is secured by a mortgage or charge on estates, some of which are notified under section 3 of the Act and the others are not notified. In such a case, according to <ORG> a. 4 (d) will be a bar to the suit or execution proceedings so far as the vested estates are concerned, but the creditor will be entitled to prosecute the suit or execution proceedings as regards the estates or portions of estates which are not vested in the <ORG>. Since we are dealing with a case where the whole of the mortgaged property is an estate, it (1) (1953) I.L.R. 32, 581.

is unnecessary for us to consider whether the view taken by <ORG> in this cue is correct or not. <CITATION> (1) the full Bench of <ORG> had occasion to consider whether a mortgagee decreeholder of the interest of the proprietor whose estate has vested in the <ORG>, is entitled to proceed against the Bakasht lands of the proprietor comprised in the said estate for recovery of the amount due to him under the mortgage decree, and it was held that in such a case, the mortgagee can not be forced to seek his remedy under section 14 and to satisfy his mortgage debt out of the compensation payable under the Act, It appears that the Full Bench was inclined to take the view that the interest of the judgment- debtor in the bakasht land was one of the interests saved by section 6 and that, in consequence, the bakasht lands conti- nued to remain in the possession of the ex-propriotor not in the character of bakasht lands but as raiyati lands; and since these lands were a part (if the security offered by the mortgage-deed, the decree-holder was entitled to proceed against them without taking his remedy under section 14 of the, Act. This conclusion was based on the view that the effect of a. 4(d) read with sections 3 and 6 of the Act was not to destroy the mortgage in its entirely but only with respect to that part of the estate which had vested absolutely in the <ORG> and no interest therein is left with the mortgagor proprietor or tenure-holder. It is conceded by Mr. <NAME> that this decision also proceeds on the assump- tion that the mortgage security consists of an estate which has vested in the <ORG> and of bakasht lands which did not, in substance, vest in the <ORG> but continued with the mortgagor as raiyati lands. Therefore, it is not necessary for us to examine the merits if the conclusion reached by (1) A.I.R. 1958, Pat. 630.

<ORG> in this case. It may, however, be not out of place to add incidentally that Mr. <NAME> for the respondent has suggested that the assumption made by <ORG> about the character of the bakasht lands by virtue of the provisions of section 6 is inconsistent with the decisions of this Court in <CITATION> . (1). His argument is that the provisions of section 6 of the Act correspond to the provisions of section 18 of the U. P. Zamindari Abolition and Land Reforms Act , and that what this Court has said about the effect of the provisions of section 18 , has shaken the validity of the conclusion of <ORG> in regard to the effect of section 6 of the Act. We, do not think it necessary to consider this point as well in the present appeal. In any case, both the decisions on which Mr. <NAME> has relied afford no assistance to us in dealing with the point with which we are concerned in the present appeal.

The result is, the order passed by <ORG> if; confirmed and the appeal is dismissed with costs. Appeal dismissed (1)[1962] 2. S.C.R. 44 1.


JUDGMENT <NAME>, J.

1. Messrs <ORG> (hereinafter referred to as 'the Mills') are engaged in the manufacture of Maida, which is item no. 1-F of the First Schedule attached to the Central Excises and Salt Act , 1944 (hereinafter referred to as 'the Excise Act ') and bolts, nuts and screws which are item no. 52 of the said Schedule as also certain articles which are included under item no. 68 of the Schedule. The details of the other items excluding those under items 1-F and 68 are given in annexure 4 appended to the writ application.

2. By a notification issued by <ORG> dated 10th August, 1971 item no. 1-F of the First Schedule to the Excise Act , has been exempted from payment of duty under Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 (hereinafter referred to as 'the rules'), copy of which is Annexure 1. Thereafter by a notification dated 18th June, 1977, under Rule 8(1) of the Rules (copy of which is annexure 2) <ORG> exempted goods falling under item 68 of the First Schedule, if to be utilised for home consumption and if the total value of all excisable goods in the preceding financial year docs not exceed Rupees thirty lakhs. The petitioner claims that under the aforesaid notification the total value of Maida manufactured by it in the preceding financial year could not be included in determining the exemption. The Assistant Collector of Central Excise (respondent no. 3), however, asserts that the value of Maida cleared in the previous financial year shall be taken into account for determining the exemption under the aforesaid notification. Hence this application.

3. The Excise Act , under Section 2(d) , defines excisable goods, and Section 3 is the charging section which provides that there shall be levied and collected in such manner as may be prescribed, duties of excise on all excisable goods other than salt, which are produced or manufactured at the rates set forth in the First Schedule, and it further empowers different tariff values to be fixed for different classes or descriptions of the same article. Section 6 authorises <ORG>, by notification from such date as may be specified in it, to have the production or manufacture or any process of production or manufacture of any specified goods included in the First Schedule, licence the production or of salt petre or any specified component parts or ingredients of such goods or of specified containers of such goods in accordance with the terms and conditions granted under this Act. This First Schedule attached to the Act details the items of goods as also the basic and additional rates of duty. It appears that to begin with the First Schedule contained 11 items which has now increased to 68 items. Section 37 empowers <ORG> to make rules and under Section 38 such rules have to be laid before <ORG> while it is in session for a total period of 30 days which may be comprised in one or two more successive sessions. The <ORG> have the power to modify or annul the Rules. Under Rule 8(1) <ORG> is authorised from time to time by notification in the official gazette to exempt, subject to such conditions as may be specified in the notification, any excisable goods from the whole or any part of the duty leviable on such goods, The aforesaid two notifications, annexures 1 and 2, have been issued under this provision.

4. Relevant facts leading to this application are that, as already pointed out earlier, by a notification copy of which is annexure I, Maida was exempted from the duty of excise leviable thereon. Thereafter, in 1977, came the notification copy of which is annexure 2, granting exemption under certain conditions to articles manufactured under item no. 68. These items manufactured by the mill are M.S. rivets, castings, machinery parts, job work etc. Item 68 under the Schedule provided at the relevant period the rate of duty as 2% ad valorem. On the 7th or 8th of December, 1979, the Superintendent of <ORG>, Patna City, respondent no. 4, issued a letter to the petitioners that since the annual turnover of the mills including the sale of Maida (which is item 1-F in the Schedule) was more than Rs. 30,00,000/- the mills were not entitled to the exemption from the payment of duty with respect to item No. 68 of the Schedule. Copy of this letter is Annexure 5. The mills did not accept the interpretation to annexure 2 and submitted in reply that the C.E. authorities were wrong in refusing to give the exemption, whereupon the mills have been served with an order of the Assistant Collector, <ORG>, Patna (respondent no. 3) stating that the petitioners were liable for the financial year 1976-77 to <ORG> Duty at the rate of 2% ad valorem on goods manufactured by them under item 68; copy of the communication is annexure 6.

5. A counter affidavit has been filed on behalf of the respondents stating that the exemption granted by annexure 2 would not exempt the liability of the mills from paying the duty upon goods, under the head, item no. 68, manufactured by them, inasmuch as the value of <ORG> produced in the previous financial year had to be taken into account. It is not necessary to refer in detail to the counter affidavit as the facts are not in dispute.

6. Before proceeding to consider the merits of the rival claims made, a preliminary point raised on behalf of the respondents by the learned Standing Counsel for <ORG> has to be disposed of. It was submitted that as the <ORG> had not availed of the alternative remedies provided under the Excise Act itself, the present application was not maintainable. Reference was made to Sections 35 and 35A as also 36 of the Act, which provide for appeals and revisions to <ORG> as also to <ORG> itself. This preliminary objection was resisted by <NAME>, who submitted that where a fundamental right is involved, consideration of alternative remedy is irrelevant, and he referred to a number of decisions in support of this submission.

He further submitted that once a writ petition had been admitted it could not be thrown away on the ground of alternative remedy. In support of this, learned counsel relied upon a Bench decision of this Court in <CITATION> , 1976 BBC J 1 where it was held :

"...it is well established by several authorities of <ORG> that alternative remedy is not a bar to the exercise of power by this Court under Articles 226 and 227 of the Constitution. Whether such an application should not be entertained, as there is an alternative remedy, should be considered at the time of admission of the writ application, and once the writ application is admitted and heard on merits, it should not be rejected merely on that ground."

In this connection it was further observed that at the stage of final hearing a writ application should not be dismissed on the ground that the petitioners have not availed of the alternative remedy provided under the enactment itself. In support, reliance was placed upon the case of <CITATION> , A.I.R. 1971 Supreme Court 33 where it was observed that merely because a revision application could have been moved under Section 35 of the Income-tax Act but was not moved, <ORG> would not be justified in dismissing as not maintainable a petition which was entertained and was heard on merits. Therefore, it would not be permissible now to reject this application on the ground that the petitioners have availed of the alternative remedies provided under the Excise Act itself.

7. It may further be pointed out that in paragraph 27 of the writ petition it has been asserted that the petitioners have learnt that a communication bearing No. F.No. 3.36/8/77-TRU, dated 20th July, 1977, the Under Secretary to <ORG> in the Ministry of Finance, <ORG> has advised all the Collectors of Central Excise in India that in computing the sum of Rupees thirty lakhs as per the proviso to the notification copy of which is annexure 2, the value of all excisable goods whether exempted or not exempted, should be taken into account, and in that view of the advice, the remedy before any of the superior officers of the <ORG> would be futile. In the counter-affidavit filed by the respondents in paragraph 21 it is stated that the aforesaid statement is not admitted and that the decision of respondent no, 3 is based upon a correct interpretation of the notification. If there be such a communication as mentioned above, it is obvious, any appeal or revision to the authorities as contemplated in Sections 35 , 35A and 36 would be of no avail.

8. In support of this application on merits, Mr. <NAME> has made two submissions ; namely, that Maida having been exempted from excise duty was not "excisable goods" the value of which could be taken into account for the annual turnover. The second submission is that even after Maida has been exempted from the excise duty, it cannot be included in the expression "all excisable goods cleared" used in the first proviso to the notification (annexure 2).

9. For the sake of convenience I will first consider the second submission made on behalf of the petitioners. Before doing so, it would be relevant to quote the notification which reads thus :-

"In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the <ORG> Rules, 1944 <ORG> hereby exempts goods falling under Item No. 68 of the First Schedule to the <ORG>s and Salt Act , 1944  and cleared for home consumption on or after the first day of April in any financial year, by or on behalf of manufacturer from one or more factories from the whole of the duty of excise leviable thereon, if an officer not below the rank of an Assistant Collector of <ORG> is satisfied that the sum total of the value of the capital investment made from time to time on plant and machinery installed in the industrial unit in which the goods, under clearance, are manufactured, is not more than Rupees Ten lakhs :

Provided that this exemption shall not be applicable to a manufacturer if the total value of all excisable goods cleared by him or on his behalf in the preceding financial year had exceeded Rupees Thirty Lakhs :

Provided further that the exemption contained to this notification shall apply only to the first clearance for home consumption by, or on behalf of, the manufacturer referred to in this notification, from one or more factories, upto a value not exceeding Rupees Thirty Lakhs during a financial year subsequent to 1977-78 and upto a value not exceeding rupees Twenty-four lakhs during the period commencing on the 18th day of June, 1977 and ending on the 31st day of March, 1978.

Explanation :-For the purposes of determining the value of any capital investment, only the face value of such investment at the time when such investment was made shall be taken into account."

It is not disputed that the goods falling under item no. 68 of the First Schedule relating to the mills are for home consumption and that the capital investment made from time to time on plant and machinery installed in the industrial unit of the mills in which the goods are manufactured is more than Rupees Ten Lakhs. In other words, the conditions to be fulfilled under paragraph 1 of the notification are fulfilled. The controversy arises with regard to the meaning and effect of the proviso thereafter, which says that the exemption shall not be available to a manufacturer if the total value in the preceding financial year of "all excisable goods cleared by him" had exceeded Rupees Thirty lakhs. Obviously in calculating the amount of Rupees Thirty lakhs the goods manufactured by the mills under item 52 has got to be included. The question is whether, in computing this amount of Rupees Thirty lakhs, Maida manufactured and sold during the period by the mill will be included or not. According to Mr. <NAME>, the word "cleared" in the Rules and Notifications issued thereunder is used only for those "excisable goods" on which excise duty is actually paid and as no excise duty has to be paid on Maida, it would not be included in the expression "all excisable goods cleared". Learned counsel says that even if Maida in spite of the exemption, is "excisable goods" as defined in Section 2(d) of the Excise Act, it cannot be referred as excisable goods cleared. "Cleared" in the context means, free from obstruction or to free from obligation or encumbrance. Therefore, excisable goods cleared will only mean those excisable goods on which excise duty is payable and has been paid, that is, is free from obstruction or obligation or encumbrance.

10. In this context, reference was made to Rule 9 of the Rules, which provides that excisable goods shall not be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export or manufacture of any other commodity until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require. Rule 52 further provides that when a manufacturer desires to remove the goods on payment of duty either from the place or premises specified under Rule 9 or from a store room or other place of storage approved by the Collector he shall make an application in triplicate to the proper officer in the proper form and shall deliver it to the officer at least 15 hours before it is intended to remove the goods. The officer shall thereupon assess the amount of duty due on the goods and on production of evidence that the same has been paid into the treasury or paid to the account of the Collector in <ORG> or <ORG>, allow the goods to be "cleared". Placing reliance upon this provision, Mr. <NAME> submitted that the word "cleared" is used to signify permission to remove such excisable goods only after payment of excise duty, meaning thereby, only after excise duty levied has already been paid.

11. Rule 52-A provides for goods to be delivered on gate pass and sub-rule (4) reads thus :-

"Gate passes shall be maintained in two sets ; one for clearance for home consumption and the other for clearance for export. Each gate pass shall bear a printed serial number running for the whole year beginning on the first January or such other date as approved by the proper officer as may correspond to the accounting year of the factory. Only one gate pass book of each type shall be used by a factory for an excisable commodity at any one time unless otherwise specially permitted by the Collector in writing in respect of factories having more than one section from which clearances take place."

Mr. <NAME> submitted that the word "clearance" has been used here for the removal of such goods on which either excise duty has to be paid or which are being permitted to be removed for export. It has, therefore, been urged before us that the word "cleared" as used in the notification signifies the removal of an obstruction which is in the way on account of the imposition of excise duty and which obstruction is removed when the excise duty has been paid.

12. The learned Standing Counsel on the other hand contends that the word "cleared" used in the notification has no special or particular meaning. It refers to all excisable goods which are moved out. According to him "all excisable goods "cleared" in the proviso would mean all such goods removed irrespective of the consideration whether excise duty has been paid or such duty is exempted. In other words, Standing Counsel submits that if <ORG> comes within the definition of "exacisable goods" then even if payment of excise duty is exempted, its value would be included in computing the amount of Rupees Thirty Lakhs.

He further emphasises that the word "cleared" as used in the proviso could not relate to excise duty actually paid as the expression used in the proviso is "all excisable goods cleared by him". It is said that the clearance refers to the clearance by the manufacturer and, therefore, the word "cleared" here means "removed".

13. The submissions made by both sides are plausible. <CITATION> , A.I.R. 1957 Supreme Court 657, Bhagwati, J., speaking for the Court ruled :-

"It is no doubt true that in construing fiscal Statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the Statute or the substance of the law. If the <ORG> satisfies the <ORG> that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxaing Statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter."

In the case of <CITATION> A.I.R. 1976 Supreme Court 1503, it was laid down ;

"It is well settled that in case of fiscal Statute the provisions must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible the burden of court fees on the litigant".

Therefore, by strictly interpreting and giving every benefit of doubt to the subject, I am of the opinion that the proviso to annexure 2 refers only to such excisable goods on which excise duty has been paid. The contention that out-turn of Maida in the preceding financial year by the mills could not be taken into account for calculating the total output of "excisable goods cleared" must be sustained and Annexure 6 appended to the writ application is quashed and set aside.

14. Reverting to the first submission, Section 2(d) reads "excisable goods" specified in the First Schedule as being subject to duty of excise and includes salt. On behalf of the petitioners it is said that excisable goods under the definition has two attributes, namely : (i) goods which are specified in the First Schedule of the Act, and (ii) which are subject to a duty of excise. The argument proceeds that all the goods specified in the First Schedule are not necessarily subject to a duty of excise. There are some goods mentioned therein where the duty of excise is nil, as for example item No. 4 (1) (7) i.e. unmanufactured tobacco if used for agricultural purpose. It is further submitted that even if there are goods in the First Schedule which are subject to a duty of excise, such duty, at times, is exempted under Rule 8(1) of the Rules. Therefore, excisable goods not only refer to goods specified in the First Schedule but those goods must also be subject to duty of excise and where either of the conditions is missing, it is not excisable goods. In support of this contention, reliance is placed on a Single Judge decision of <ORG> in the case of <CITATION> . 1972 Tax Law Reports 1771. This report was not available here but a copy of the judgment was given to us where it was observed :

"On this observation, it is arguable that the goods manufactured by the petitioner ceased to be "excisable goods" after they were exempted from payment of duty, for the exemption notification was entitled to be regarded as part of the Act itself. If the Act and the Notification are read together, the effect is the goods exempted were not "excisable goods" within the meaning of Section 2(d) of the Act."

15. The Standing Counsel, on the other hand, submitted that the expression "as being subject to a duty of excise" is descriptive of the goods mentioned in the First Schedule and its purpose is to include in the definition of excisable goods only those goods which are subject, to a duty of excise under the Schedule itself. He has submitted that from the year 1944 itself when the Act was first made, there was at least one item in the Schedule where the duty of excise was nil which was item 8 (3) Palmyra Sugar. It is further argued that when the rate of excise duty is prescribed under the Schedule of the Act then such goods are subject to a duty of excise and if some of those goods are exempted by a notification under Rule 8(1) they still continue to be excisable goods on which excise duty is exempted. Exemption of such duty, it is submitted, is the result of an eclipse caused by the notification under Rule 8(1). The Standing Counsel relied upon a Bench decision of <ORG> in the case of <CITATION> , 1978 ELT (J 57), a copy of which has been given to us, as the report is not available, where it was held that the character of excisable goods does not depend on the actual levy a duty but on the description as excisable goods in the First Schedule to the Act and any exemption does not change. the nature and character of the goods as excisable goods within the meaning of the Act.

16. As I have already held that the petitioners are entitled to the relief sought for in this application, as at present advised, I do not consider it necessary to decide this point.

17. In the result, this application is allowed and the impugned order is quashed and set aside. In the circumstances of the case, however, I would make no order as to costs.

<NAME>, J.

I agree with my learned brother on both the questions decided by him but I would like to add a few words.

19. With respect to the preliminary objection taken by the Standing Counsel, appearing on behalf of <ORG>, regarding the maintainability of the writ application, Mr. <NAME> contended that in the facts and circumstances of the case, the provisions for appeal and revision do not provide an effective alternative remedy and since no investigation of fact is involved in the case, this <ORG> should not refuse to exercise its constitutional powers. The notification (Annexure 2) has been erroneously interpreted by the authority and the impugned order must, therefore, be held to be without jurisdiction. This <ORG>, therefore, should not decline to give to the petitioner the relief under Article 226 of the Constitution. He also cited a number of decisions in support of his argument.

20. Mr. <NAME> advanced a further argument that as the writ application was admitted by this Court, it should not be dismissed on the basis of the preliminary objection now. He placed reliance on the decisions in <CITATION> , A.I.R. 1971 Supreme Court 33, <CITATION> , 1976 B.B.C. J. 1 and <CITATION> ., A.I.R. 1973 Madhya Pradesh 175.

21. The appellant in <CITATION> (supra) was aggrieved by the assessment order passed under the Income Tax Act and applied for rectification of a mistake in the order of assessment which he claimed, was apparent from the record. The Income Tax Officer declined to grant any relief and the assessee moved <ORG> under Article 226 of the Constitution challenging the order of the Income Tax Officer. Having lost the case before the . High Court, he approached <ORG> and was granted special leave. <ORG> accepted the claim of the appellant, allowed the appeal and while so doing held as under:-

"It is true that a petition to revise the order could be moved before the Commissioner of Income Tax. But <NAME> moved a petition in <ORG> and <ORG> entertained that petition. If <ORG> had not entertained his petition, <NAME> could have moved the Commissioner in revision, because at the date on which the petition was move 1 the period prescribed by Section 33-A of the Act had not expired. We are unable. to hold that because a revision application could have been moved for an order correcting the order of the Income Tax Officer under Section 35 , but was not moved, <ORG> would be justified in dismissing as not maintainable the petition which was entertained and was heard on the merits".

22. <CITATION> , 1976 B.B.C. J. 1 the petitioner challenged before this Court an order of confiscation passed under Section 6A of the Essential Commodities Act and it was pointed out that Section 60 of the Act provided for an appeal against such an order to be filed within one month from the date of its communication, which the petitioner had failed to avail. The petitioner had approached <ORG> within the period prescribed for filing the appeal and the writ application was admitted and was heard after the expiry of the said period. Relying upon the decision of <ORG> in <NAME> case (supra) <ORG> held that the writ petition could not be dismissed on the ground of alternative remedy.

23. In the present case also, the petitioner filed a wait application before the expiry of the period of limitation which is admittedly three months as mentioned in Section 35 and the case was admitted and an interim order was passed. Now when the period of limitation is over, it will not be a proper exercise of the jurisdiction to dismiss the application merely on the ground that the petitioner should have filed an appeal. The preliminary objection raised on behalf of the respondents must, therefore, be rejected.

24. I entirely agree with the view expressed by my learned Brother on the second point urged on behalf of the petitioner, as discussed in paragraphs 9 to 12 of his judgment.

25. I wish to express my opinion on the first question raised on behalf of the petitioners also as formulated in paragraph 3 of the judgment of my learned Brother.

26. The expression "excisable goods" has been defined in Section 2(d) in the following terms :

"Excisable goods means goods specified in the First Schedule as being subject to a duty of excise and includes salt".

Mr. <NAME> contended that after exemption was granted with respect to <ORG> by Annexure 1, the article ceased to be subject to a duty of excise and consequently cannot be assumed to be covered by the expression. The factual position in this case admittedly is that if the sale of <ORG> in the preceding financial year is taken into account, the total turnover would exceed Rs. 30 lakhs but if <ORG> be excluded, the turnover will be below that figure, and consequently the first proviso in annexure 2 would have no application at all. The question to be answered, therefore, is as to whether <ORG> continued to be excisable goods even after Annexure 1. According to the petitioner, the liability in regard to the payment of excise duty is an essential condition for bringing an article within the expression, and, as by Annexure 1, <ORG> was exempted from duty in 1971, it cannot be treated as excisable goods since then. The learned counsel also tried to take help from the language used in Section 6 as it stood earlier and as it now stands after amendment. He said that if the intention was to include within the expression all the articles specified in the First Schedule then there was no necessity of including the 'words "as being subject to a duty of excise" in the definition. Mr. <NAME> strenuously contended on the well-established principles of interpretation that the legislature must be presumed to have used each word in a Statute for a purpose and that every part of a statutory provision should be given effect to. It was urged that if the intention had been to, treat every article mentioned in the schedule as excisable goods without reference to the question as to whether duty was payable or not, it could have been expressed in a more direct straight forward manner without unnecessarily making a reference to payment of duty.

27. On a close examination of the Act along with the First Schedule arid the rules, I do not find myself in a position to accept the petitioner's stand. It is true that the expression is not intended to include every article mentioned in the First Schedule, but at the same time it is also clear that the definition is not entirely dependent upon liability to pay duty for if that were so, the sub-section would not have mentioned the First Schedule. A reference has been made to both the First Schedule and to the liability in regard to the excise duty and they have been connected by the every significant words "as being". Giving effect to every word in the sub-section, its meaning appears to be that all goods which are subject to duty by virtue of being included in the First Schedule must be treated as excisable. The second part is merely descriptive. Whether a particular article is subject to duty or not by reason of any other provision does not appear to be relevant. What has to be seen is whether by reason of its being included in the First Schedule, it is subject to a duty or not. A reference to the Schedule indicates that Maida is still retained there as item 1 with the rate of duty as 10 paise per kilogram in column 3. It is, therefore, specified in the First Schedule as being subject to a duty and comes squarely within the definition.

28. Let us test the conclusion to which I have arrived above in the light of the argument addressed on behalf of the petitioner. It has been contended that on this view the words "as being subject to duty of excise" are rendered superfluous. The fallacy in this argument is that it is assumed that every item mentioned in the First Schedule is automatically subject to duty. It is not so. In Item No. 60, several articles are excluded from the duty and even before this item was included in the Schedule, there was other articles not subject to duty. Presently, against tobacco if used for agricultural purpose as mentioned in item 4(7), the rate of duty is mentioned as nil. In the past, Palmyra Sugar, now mentioned in item 1(3) earlier at one point of time as mentioned in item 8(3) also was not subject to duty.

29. I, therefore, do not find any substance in the first point urged on behalf of the petitioner. However, since the second question has been decided in its favour, the writ application succeeds.


PETITIONER: <NAME> AND OTHERS Vs. RESPONDENT: <NAME> DATE OF JUDGMENT: 14/04/1958 BENCH: <NAME>, BHUVNESHWAR P. BENCH: <NAME>, BHUVNESHWAR P. IMAM, SYED JAFFER SUBBARAO, K. CITATION: 1958 AIR 706 1959 SCR 479 ACT: Agriculturist Protection of--Jurisdiction of Special Judge--Execution sale, if binds the legal representative not Party to it-Limitation-Mitakshara Law of Partition-Document, if and when must be registered-Admissibilitv-Sangli State Agriculturist Protection, Act (1 of 1936)-Indians Limitation Act (IX of 1908), Arts. 12, 134 and 148-Indian Registration Act (Act XVI of 1908), ss. 17 and 49. HEADNOTE: This was an appeal by the defendants in a suit for possession on redemption of certain mortgages instituted in <ORG> 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. <ORG> dismissed the suit. On appeal <ORG> 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 <ORG> and the appeals were heard together. <ORG> dismissed the defendant's appeal and allowed the plaintiff's appeal holding that Art. 148 and not Art. 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 <ORG> as to who was the true legal representative. The plaintiff was entitled to ignore the sale and the suit was not barred under Art. 12 of the Limi- tation Act. 480 <NAME> v. <NAME>, (1900) L.R. 27 I.A. 216, doubted and distinguished. In order that Art. 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, Art. 134 could not apply and the only other article which could-apply was Art. 148  Of the Limitation Act . Under <ORG> 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 s. 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 s. 49 of the Indian Registration Act and were admissible in evidence. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 177 of 1954. Appeal from the judgment and decree dated October 9, 1950 of <ORG> in First Appeals Nos. 361 & 363 of 1948 from Original Decree arising out of the judgment and decree dated July 31, 1946, of <ORG>, Mangalvedhe in Special Suit No. 1322 of 1938. <NAME>, <NAME>, <NAME> and <NAME>, for the appellant.

<NAME> and <NAME>, for the respondent. 1958. April 14. The following Judgment of the <ORG> was delivered by <NAME> is a defendants' appeal by leave granted by <ORG> at Bombay from the decision of that <ORG>, dated October 9, 1950, in two cross-appeals from the decision of the Special Judge of the Special Tribunal <ORG> 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 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 <ORG>, and no appeal has been brought against that judgment to this <ORG>. 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 <ORG> 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 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 <ORG> 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 Art. 134 of the Limitation Act . The <ORG> decreed the suit in respect of the mortgaged portion of R. S. No. 1735, having an area of 16 acres and 21 gunthas, as against defendant No. 3, and R. S. 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 <ORG> at Bombay. Both the appeals were heard together along with two other cross- appeals arising out of the other suit mentioned above. The High <ORG>, 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 Art. 148 and not Art. 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 <ORG> 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 <ORG> to 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, <ORG> 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 <ORG>, 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, <ORG> 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 Art. 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, <NAME> (omitting all reference to his brothers).

It appears that there was a decree for money of the year 1903, in favour of a third party who is not before us. <NAME> had been stied as the original defendant, but after his death, his place was taken by his brother <NAME> as his heir and legal representative. In execution of the decree, the mortgaged properties were auction-purchased by the mortgagee's <NAME>, 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 <NAME> and his successor- in-interest, the plaintiff. <ORG> has held that Art. 12 is out of the way of the plaintiff because neither the plaintiff nor her father was a party to the sale. If <NAME> 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 <NAME> was substituted by his brother <NAME> in the execution proceedings. If <NAME> could not be the representative-in-interest of <NAME>, as will presently appear, he could not have represented <NAME>'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 <ORG> in the case of <NAME> v. <NAME> (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 <ORG> in <NAME>'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 <NAME>'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 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. <ORG> 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 <NAME>, the original defendant, had died and had been, without any controversy, substituted by his brother, <NAME>. The court had not been invited to determine any controversy as between <NAME> and the true legal representative of <NAME> deceased. In execution proceedings, the property was sold as that of <NAME> the substituted judgment-debtor. It was a moneysale and passed only the right title and interest of <NAME>, if it bad any effect at all. <NAME>'s case (supra), therefore, is of no assistance to the appellants. The plaintiff, <NAME>'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 Art. 12 of the Limitation Act .

It was next contended that even if Art. 12 was not available to the defendants by way of a bar to the suit, the suit was certainly barred under Art. 134 of the Limitation Act . Under Art. 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 rule of 60 years' limitation under, Art. 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 Art. 134 , have not been brought on the record of this case, and, therefore, the <ORG> 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 <ORG> 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 Art. 134 is not available to the 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 Art. 134. As we are not satisfied, for the reasons given above, that Art. 134 is attracted to the present case, it is not necessary to pronounce upon that controversy. It is, thus, clear that if Arts. 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 Art. 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 <ORG> 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 <ORG>, 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 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 <NAME>. 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. S. 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 ' <NAME> ' 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. S. 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. S. 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 \the 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 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 <ORG>, 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 <ORG> in <CITATION> (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) (1934) 37- Bom. L, R. 288, 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. S. No. 242 (old survey No. 233). <NAME>, 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 <NAME>, 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 <NAME>, executed by <NAME>, son of <NAME>, 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 <NAME>'s two brothers-<NAME> and <NAME>-as sureties for the repayment of the amount borrowed which was the personal responsibility of <NAME> 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 is again assured by his two brothers-<NAME> and <NAME>-as sureties. The third mortgage-bond is for a further advance of Rs. 200 to the mortgagor <NAME>, 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, <NAME>. It appears that, of the three brothers, <NAME> died first, and then <NAME>, some time in 1903, survived by his two daughters-the plaintiff and defendant No. 13. The plaintiff's case is that the common ancestor, <NAME>, 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, <NAME>, had three sons-<NAME>, <NAME> and <NAME>, 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 <NAME>, <NAME> and his brother <NAME> 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 property left by <NAME> 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 <NAME>, 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, <NAME> purported to sell to <NAME>, 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 <NAME> and <NAME> 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 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 <NAME> was substituted as the sole heir and legal representative of the defendant <NAME>, 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 s. 17(1) (b) of the Registration Act . No authority has been cited before us in support of this contention. Partition in the  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 s. 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 <ORG>. The change of status from a joint member of a <ORG> 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 s. 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 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 s. 17 , and would, therefore, not come within the mischief of s. 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, <NAME>, 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), <NAME>'s moiety share in the mortgaged property, was purchased by <ORG> aforesaid. The plaintiff, therefore, could only claim the other moiety share of her father, <NAME>. 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 <NAME>'s share, had been mortgaged. The appeal will, therefore, be allowed to the extent of the half share rightly belonging to <NAME>, 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.