P L D 1957 (W (PLP)

WAHIDUDDIN, J.

This is an appeal against the judgment of Mr. Ghulam Hyder, First Class Sub-Judge Hyderabad dated 26th October 1946 declaring that Respondent No. 1 has 8 annas share in the property in suit and also ordering that the revenue authorities will effect partition between the parties in proportion to their share in the agricultural land in dispute. Briefly stated, the facts are that Hafiz Muhammad Madani died in April 1942 leaving appellants 1 and 2 as his sons and respondent No. 2 his daughter. Deceased had two daughters Mst. Maluk Zaidi and Mst. Shahzadi from the first wife and two sons Ghulam' Mohiuddin and Atta Muhammad from his second wife. Mst. Maluk Zaidi was married to Respondent No. 3 Muhammad Sail and Mst. Shahzadi was married to respondent No. 1 Haji Muhammad. Respondent No. 1 Haji Muhammad and Respondent No. 3, Muhammad Sail are cousins. Appellant Ghulam Mohiuddin and Respondent No. 3 died during the pendency of the appeal. Their legal representatives were brought on the record and they are parties to this appeal. Deceased Hafiz Muhammad Madani and respondent No. 3 acquired agricultural lands from the revenue officer Lloyd Barrage as tenants-in-common, the share of the deceased in this land was 10 annas 8 pies and the share of Muhammad Sail was 0-5-4 pies. These lands were taken on instalment basis on or about 23rd of April' 1949(sic) and they are described in detail in Schedule A annexed to the plaint. On or about 24th of June 1948, (sic) some more properties were acquired by the deceased ostensibly and benami in the name of respondent No. 3 and they are described in Schedule B annexed to the plaint. On 21st of March 1948 some other agricultural lands were also acquired by the deceased Hafiz Muhammad Madani and this stood in the name of respondent No.

1. They are described in Schedule C annexed to the plaint. Respondent No. 1 Haji Muhammad claimed in Schedule "A" of properties 0-5-4 pies share on the allegation that the deceased respondent No. 1 and respondent No. 3 entered into an agreement and agreed to purchase agricultural lands from the revenue officer Lloyd Barrage as tenants-in-common. Each of the parties paid their share of purchase money and agreed to pay their respective shares towards the remaining instalments that may fall due. According to respondent No. 1 other properties were acquired benami either in the name of respondent No. 3 or in his own name. He claimed 8 annas share in these properties with the deceased Haji Muhammad Madani. It was further alleged that during the lifetime of the deceased a private partition with respect to the properties mentioned in Schedule "A" took place between the deceased and respondent No. 3 and by means of this arrangement respondent No. 3 was given certain properties as his share. The details of these properties are given in paragraph 8 of the plaint. Respondent No. 1 has relied in support of his claim on a declaration contained in a document styled as agreement dated 25th February marked Exh. 'A' on the record. In this document the deceased has admitted the partition between him and respondent No. 3 in respect of the agricultural land held by them as tenants-in-common, and has also admitted respondent No. 1 having half share in the properties left after partition with respondent No.

3. The suit was hotly contested. Appellants 1 and 2 denied the claim of the respondents. Respondent No. 2. the wife of respondent No. 1 and respondent No. 3, admitted the claim of respondent No.

1. On the pleadings of the parties the learned judge below framed several issues, important amongst them being issues Nos. 6 and

7. They are reproduced below :- "Issue 6.-Did the plaintiff, the defendant No. 4 and the deceased Hafiz Muhammad Madani enter into an arrange?ment as alleged in para. 3 of the plaint ? If so, did they acquire any agricultural land from Government in pursuance of their arrangement ? Issue 7.-Has there been a private partition by metes arid bounds between the plaintiff, defendant No. 4 and the deceased Hafiz Muhammad Madani as alleged in para. 8 of the plaint ? If so, what is the consequence ? The learned Judge below gave a finding in favour of respondent No. 1 and decided all the issues in his favour. The learned counsel for the appellant has given up issues Nos. 1 to 5 and has made no submissions on points involved in these issues. These issues involve some technical objections and in our opinion the learned counsel was right in abandon?ing these contentions for consideration in this appeal. The only point involved in this appeal is the question whether the arrangement alleged to have been' made by respondent No. 1 was arrived at between him, the deceased and respondent No. 3 and whether the agricultural lands, the subject matter of the present suit, were acquired or purchased benami by the deceased and the other parties in equal shares. The learned Judge below in a lengthy judgment has considered the plaintiff's case and after careful consideration of the facts, came to the conclusion that the arrangement alleged to have been arrived at between the parties was proved, that the property in dispute was acquired in pursuance of the above-mentioned arrangement, that the respondent No. 1 paid Rs. 1,500 towards the purchase price, that he had the means to pay the said amount, that subsequent instalments were paid out of the produce of the land, and lastly relied on the document Exh. A in proof of respondent No. 1's claim. At the outset we must express that in the absence of the writing Exh. A, it would have been difficult for us to hold that the properties in dispute were purchased benami for the benefit of the respondent No.

1. The oral evidence on this point was of a very weak nature and by itself much doubt could have been expressed on such evidence. The learned judge has relied on two letters written by the appellants to Muhammad Ismail the son of respondent No. 1, Exhs. 124 and Exhs. 125, and observed that appellant No. 1 was conscious that respondent No. 1 was a co-sharer with him ; therefore he called upon his son who managed all the affairs of his father to do things in the best interest of the estate. According to the learned judge if this would not have been the fact, then the letter would not have been written in such a manner. The learned judge however ignored the fact that respondent No. 2 was the daughter of the deceased and on his death she became a co-sharer in the property left by the deceased. Respondent No. 1 was the husband of respondent No.

2. Muhammad Ismail was her son. In these circumstances, any letter addressed by appellant No. 1 to the son of Respondent No. 2 with regard to the property in dispute to the effect that if the instalments are not paid or the produce is not sold in time, then the parties will suffer, cannot mean that the appellants were admitting respondent No. 1 as co-sharer in the property in dispute. These letters could early be explained by the fact that the mother of Muhammad Ismail was interested in the property in dispute and if the necessary steps are not taken to protect the property then both the parties will suffer. In our opinion these letters cannot be considered to be of any value in deciding whether respondent No. 1 was a co-sharer in the property in dispute or not. The only question for consideration therefore is what is the value and effect of the admission made by the deceased in Exh. A. This document is reproduced below. "Re. 1 original on non-judicial stamp paper of Re. 1 only issued under serial No. 260 dated 25th February 1942 to Hafiz Muhammad Madani son of Haji Muhammad Kazi resident of village Nasarpur, taluka Tando Allahyar Hafiz Muhammad Madani son of Haji Muhammad Kazi. ??????????? Sd. Motiram, Licence holder, Nasarpur. Agreement (Kabuliat) I, the undersigned Hafiz Muhammad Madani son of Haji Muhammad Kazi resident of village Nasarpur, taluka Tando Allahyar in the perfect state of my senses, without any intoxication and coercion do hereby execute the following agreement. That the land of the following description is situated in Deh Panwharki taluka Hala, is in all 341-32 acres. Description 93/1, 94/1, 145/2, 3, 146/4, 142/2, 143/1, 2, 96/4, 92/1, 2, 91/whole, 93/2, 95/1, 2, 3, 96/1, 2, d, 97/whole, 98/1, 2, 140/1, 2, 3, 141/whole, 142/1, 2, 3, 4, 143/3, 4, 144/whole, 1,45/1, 4, 146/1, 2, 3, 147/whole, 148/1, 2, 3, 149/whole, 150/.1, 2, 3, 151/whole, 152/2 to 5, 153/1, 154/whole, 155/whole, 156/whole, 157/2, 199/whole, 197/2, 201/2, 200/whole. From out of the area of the above numbers, the follow?ing numbers measuring 114-10 has been given to Mr. Muhammad Sail son of Allahdino Kazi, for his share of 0-5-4. by making the partition of the same privately. Description of numbers 148/whole, 149/whole, 150/whole, 151/whole, 145/1, 3, 4, 144/whole, 92/whole, 95/whole, 96/whole. The rest of the numbers whose area is about 227-22 acres, have come in my share of 0-10-8 by way of the private partition but Mian Haji Muhammad son of Muhammad Ismail Kazi holds an equal share with me in the above area of 227-22 acres since the very beginning. All the instalments to Government or the Revenue assessments paid or any other expenditure incurred upon the land has been made by us in equal shares and have taken the produce in the equal shares also. And henceforth all the expenditure which will be incurred and the produce of the land will be divided in equal shares. In the same way Haji Muhammad son of Muhammad Ismail Kazi holds an equal share with me in the 43-28 acres from the un-surveyed No. 40, of Deh Bhati taluka Tando Allahyar, which have been purchased from Muhammad Sail son of Allahdino Kazi, as well as in the four acres grant, from Nos. 141/1, 4, and 140, which is in my name. I hold an equal share with Mian Haji Muhammad in No. 141/1, 4, 142/1 and 11 acres from No. 140 of Deh Bhati and Nos. 9/2, 3, 4 and 110/1, 2, 3 of Deh Panwherki, a total area of 39-25 which was granted to late Izatullah son of Muhammad Sail and now the same has been transferred in the name of Mian Haji Muhammad means that both of us, possess equal shares in all the land possessed by me as well as that possessed by Mian Haji Muhammad in Dehs Panwharki and Bhati of taluka Tando Allahyar and Hala respectively, up to this time and we enjoy all the produce according to the above shares. All the expenditure has been incurred in equal shares and will be incurred in the same way. We shall incur expenditure equally and shall have equal shares of any new land taken by us henceforth." The learned counsel for the appellant has urged that this document is not admissible in evidence as it purports to create title in favour of the respondent No.

1. This document was also attacked on the ground that the deceased was under the influence of respondent No.

1. He had only two sons and at the time when this particular- document was executed they were studying in college. Respondent No. 1 took advantage of their absence and obtained the document in dispute by undue influence and coercion. The learned counsel for the appellant further drew our attention to the fact that the stamp paper, on which the document in question is written, was purchased on 25th February 1942 and was also written on the same date. It was attested by the son of the respondent No. 1 Muhammad Ismail who happen to be at that time a third class Magistrate. It is also contended that the document in question does not appear to have been executed on 25th February 1942 as some of the properties mentioned therein were not acquired till then, and reliance was placed on Exh. 118-B which shews that these properties were acquired on 21st of March 1942. On these facts, it was contended that the document in question was executed in very suspicious circumstances. The deceased died on 4th April 1942 and it should not be relied upon in support of the claim of respondent No.

1. We have carefully considered the argument advanced by the learned counsel for the appellant and consider that they are not well founded. We will first consider the question whether Exh. A is admissible in evidence or not. The learned judge below on this question has expressed himself in the following terms " The document in question does not declare any right in favour of the plaintiff. It only recites what was the state of affairs prior to its execution i.e. it recites that the plaintiff was already a co-sharer with deceased Hafiz and that he had contributed towards the purchase land and land assessment and expenses. It does not declare title for the first time in favour of the plaintiff. It therefore does not come within the four corners of section 17 of the Registration Act. Consequently, it is admissible in evidence." The learned counsel for the appellant has challenged this finding, our attention was invited to section 17 (1) (b) of the Registration Act. It reads as under :- "17 (1) (b). Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest, whether vested or contigent of the value of one hundred rupees and upwards, to or in immovable property." According to the learned counsel, the deceased in this document has declared the right, title and interest of respondent 1 and has also declared the manner in which the property in dispute will be treated in future between the parties and, therefore, it required registration and was in?admissible in evidence. This contention is not correct. After giving details of the property the deceased recited that a private partition took place between him and respondent No. 3, and certain agricultural lands were given to him by way of private partition. The deceased further recited that in the properties left after partition since the very beginning respondent No. 1 had equal share with him. It was further recited that all instalments whether Govern?ment or revenue assessment was paid by them in equal shares and both of them have enjoyed the produce in equal shares. He also declared in future this arrangement will continue. With regard to the other properties, the deceased recited that some of them were purchased benami in the name of respondent No. 1, but they were owned by him and respondent No. 1 in equal shares and in future also they will continue to enjoy the said properties in equal shares. We consider the recital of the abovementioned facts in Exh. A relates to past events. No title or interest was created in favour of respondent No. 1 or any other party by means of this document. In such circumstances the documents cannot be considered something which in itself create a title. The meaning of the word 'declare' was considered by their Lord?ships of the Privy Council in a case reported in Bageshwari Charan v. Jagarnath Kuari (A I R 1932 P C 55). Their Lordships observed as under :- "The word 'declare' in clause 17 implies a definite change of legal relation to the property by an expression of will embodied in the document referred to and does not contem?plate a mere statement of fact. Consequently a document containing an admission direct or inferential that an aliena?tion once took place, does not declare a right within the meaning of section 17, and is exempt from registration. It only amounts to an acknowledgment." In that case an application was made by the wife of the owner of the property asking the authorities concerned to sanction the gift in her favour. Their Lordships considered it as an admission on the part of the lady that unless the gift was ?sanctioned, she had no title at all, or in other words, she recognised that the title was in her husband. Their Lordships further held that a recital of such a fact in a document does not require registration and was admissible in evidence. Their Lordships in this case have approved another case reported in Sakharam Krishanji & Co. v. Madan Krishanji & Co. ((1880) 5 Bom. 232) parti?cularly the following observation of West, J. :- "Here . . . . . . the document is not itself one which declares a right in immovable property in the sense probably intended by section

17. There 'declare' is placed along with 'create', 'limit' or 'extinguish' a right, 'title-or interest', and these words imply a definite change of legal relation to the property by an expression of will embodied in the document referred to. I think this is equally the case with the word 'declare'. It implies a declaration of will, not a mere state?ment of fact, and thus a deed of partition, which causes a change of legal relation to the property divided amongst all the parties to it, is a declaration in the intended sense ; but a letter containing an admission direct or inferential, that a partition once took place does not 'declare' a right within the meaning of the section." In an earlier case reported in M. Subromonian v. Lutchaman (AIR1923PC50) their Lordships were considering a memorandum under which certain title deeds were deposited by way of equitable mortgage and laid down the following test to determine whether the document in question required regist?ration. "Did the document of 15th July 1908 constitute the bargain between the parties or was it merely the record of an already contemplated transaction," and held that the memoran?dum in question was the bargain between the parties and as it was unregistered it ought to have been rejected. Applying the principles thus laid down to the present case we consider that Exh. A does not contemplate the bargain between the parties and was merely the record of an already contemplated transaction. In the present case the facts as stated in Exh. A are a' record of past transaction or at the outside an admission of a pre-existing state of affairs and is not a declaration such as is contemplated under section 17 (1) (b). A mere statement of an existing fact in an unilateral document would have no effect' upon the legal relations of the parties and cannot be considered) to be a declaration of their rights. We therefore consider that the learned Subordinate judge was perfectly justified in receiving Exh. A in evidence and in considering its effect on the facts of the present case. Appellant No. I in para. 17 of his written statement raised the following objection m respect of Exh. A :- "The statements alleged to have been made by the deceased seems to have been obtained during the absence of defendants Nos. 1 and 2 at Hyderabad by undue influence while the deceased who was a very old man and in a weak state of health, plaintiff is put to the strict proof of the same Kabuliat. The Magistrate who is supposed to have attested it is no other person than the son of the plaintiff." It would thus appear that so far as the genuineness of the document is concerned, that was never challenged and it has not been challenged before us. In fact the learned counsel for the appellant frankly admitted that the whole of it was written in the hand of the deceased and the finding of the learned Judge on this aspect of the case was not attacked. Respondent No.1 examined himself as his own witness Exh. 171, his son P. W. Muhammad Ismail Exh. No. 103 the attesting witness P. W. Muhammad Ali Exh. 143 to depose about the execution of Exh. A by the deceased. No question was put to these witnesses about any undue influence practised on the deceased or about any other fact leading to inference that any undue influence was practised on the deceased. Appellant No. 1 was the only witness examined on behalf of the appellant. In his statement, it is asserted, that Exh. A was executed under undue influence. There is a definite statement in the evidence adduced on behalf of the respondent No. 1 that the deceased at the tithe of the execution of the said document was in perfect health and sound condition. Appellant No. 1 did not even deny this fact in his statement in Court. In these circumstances the learned judge was perfectly justified in acting on Exh. A. The learned Judge in this connection expressed himself in the following words:- "This document cuts the very bottom of defendant's case. It was written by deceased Hafiz in his own hand in sound state of health about a month before his death. After the execution he had gone to Hyderabad from his village Nasarpur to get his pension. Even on the day of his death he had led prayers in the congregation. He died of heart failure all of a sudden. It is thus clear that deceased Hafiz with eyes open wrote in this document that was according to him the true state of affairs. There are also no reasons at all on record to show that his will was dominated by plaintiff or that he was not in a position to understand what he was about. He was an educated man; he retired as Deputy Educational Inspector. Under these circumstances, it is reasonable to believe that this document correctly discloses the true facts that is that the lands were purchased by plaintiff, defendant No. 4 and deceased Hafiz jointly in equal shares and that each contributed equally towards the purchase price and expenses and each appropriated the pro?duce equal to the other (torn) that some time before its execution, defendant No. 4 had got specified S. Nos. in lieu of his 0-5-4 share in the land." We are in complete agreement with the conclusions reached on this point by the learned judge. Taking this document into consideration along with other oral evidence produced on the record, we are satisfied that respondent No. 1 was interested in the property in dispute. The contention that agricultural properties described in Schedule "C" were acquired later than 25th February 1942 is without any founda?tion. Appellant No. 1 in his statement before Court admitted that the exchange of land in Schedule "C" took place in 1941. It appears to us that those lands were in fact exchanged in 1941 and in March 1942 sanction for the same was obtained from the Barrage and Revenue Authorities. On these facts it cannot be held that Exh. A was executed in suspicious cir?cumstances. There is thus no doubt that the properties in dispute were acquired or purchased under the arrangement as alleged in the plaint. The learned judge, therefore, in our view was also justified in declaring the right of respondent No. 1 in the properties in dispute to the extent of 0-8-0 annas in a rupee. We therefore agree with the finding of the learned judge and consider that this appeal must fail. For the reasons given above we dismiss the appeal and order appellants Nos. 1 and 2 to pay the costs of this appeal. A. H.??? ?????????????????????????????????????????????????????????????? ??????????????Appeal dismissed.