Basil Scott C.J.
1. The partition suit in which the execution proceedings (Darkhast 727-1900) now in question are taken was brought by the plaintiff a member of a Mirasi family interested to the extent of 8 annas in certain 3 villages named Kuvali, Bharni and Chafet. The other 8 annas in each village belonged to a Desai family. The plaintiff claimed a one-thirty-sixth share.
2. In November, 1888 a decree was passed for partition, the main provisions of which were (1) That the plaintiff should take into his possession his 1/36 share, division by metes and bounds being effected of the whole property in dispute except the Kulkarni Watan but the plaintiff before taking possession of his share was to pay with their consent to certain of his Mirasi co-sharers including the present appellants certain specified sums of money.
(2) Two equal divisions between Desais and Mirasis were to be made in each village.
(3) Then from the eight annas separated share of the Mirasis the shares of the sub-sharers should be separated, the respective fractions being specified in the decree.
(4) After they had paid the proper Court fee in respect of their shares their shares were to be separate and as regards the lands which were with the sharers the same were as far as possible to be kept with them at the time of partition subject to certain provisions to secure equality.
3. The plaintiff first filed his application for execution of the decree in Darkhast 127/1893 and the main inquiry in connection with the partition was held under the Collector's direction in that Darkhast proceeding. Thereafter the defendant No. 8 filed Darkhast 404/1894 for his share and the Collector's surveyor who had been employed by the Collector on this Darkhast proceeding No. 127 stated in his report in Darkhast 404 that no thikan having in it the houses of any other party had been allotted to defendant 8's share. That Darkhast was disposed of in or about 1898 according to the statement of the appellant but the date cannot be verified as many papers are missing and the only note of the Subordinate Judge which we have relating to any Darkhast other than that of the appellants, relates to Darkhast 118/1896 of defendant 2 and notes that the warrant for Kuvalegar having been executed and the Darkhastdar raising no objections this Darkhast is disposed of. The appellants state that they applied for separate possession of their share in 1900 but when the surveyor prepared a list of lands remaining over after the first partition as the share of the applicants the latter found the Khasgi lands in Kuvale remaining for their share far less than they should have got and that the plots below and adjoining their houses had been allotted to the share of other sharers. They then applied to the Collector to reopen the partition. The Collector declined to do this but proposed that the surveyor should at the applicants' expense see if they could be compensated out of the Desai's lands. The applicants say they wanted time to pay these expenses and the Collector then reported to the Court that the applicants refused to take possession of their share.
4. It is stated by the Subordinate Judge in these proceedings, in confirmation of the applicants' complaint, that the Collector's surveyor has noted that the applicant's house in Survey No. 76 Falni No. 8 of Chafet village was allotted to defendant 8's share while the same defendant got about double his share in the Khasgi lands and for the applicants only about half their proper share remains.
5. The lower Courts while recognizing the injustice to the applicants in the partition which has been effected felt unable to interfere. The lower appellate Court thought that the share prepared for defendant 8 had been and 'must have been embodied in the final partition decree and it would operate as res judicata even as among the defendants the suit being for partition.' There is no trace in the proceedings of any final decree and on inquiry the District Judge has informed us that it was not the practice to make partition decrees final and reports that the last order in the proceedings is one dated the 1st of July, 1897, directing the papers sent by the Collector after effecting compliance with the Court warrant and delivering possession to be filed.
6. It is evident from the findings of the lower Courts that the Collector's partition has not been made in accordance with the directions of the decree. The Collector acts ministerially in executing the Court's decree, see Dev Gopal Savant v. Vasu dev Vithal Savant I.L.R. (1887) 12 Bom. 371 and an injustice has been done by awarding to defendant 8 the appellants' house as well as too much land. The appellants were according to the decree to get their shares on paying the proper Court fee. No time was specified within which such payment should be made. The suit was not the defendants' suit and they should be allowed to pay at their convenience. That they paid and applied for their shares later than the others is no reason for non-compliance by the Court's agent with the terms of the decree. The lower Courts evidently suspected fraud on the part of defendant 8 and possibly the Collector's Surveyor in the earlier proceedings. We will not however assume it. It is sufficient to say that this Court cannot allow a mistake of one of its agents in carrying out its directions to work permanent injustice.
7. The applicants must have their right share so far as they can get it at the expense of defendant 8.
8. The case resembles that of a legatee overpaid by an executor by order of the Court. Such legatee must refund to allow of equal distribution of the estate. This principle has long been recognised. It is to be found stated in Vernon's Reports (1690) and is applied in Section 135 of the Probate and Administration Act 1881.
9. We set aside the order of the lower Court, and direct that the papers be returned to the Collector to adjust the share of the defendant 8 and the appellants as far as possible according to the provisions of the decree.
10. The defendant No. 8 must pay the appellants' costs throughout.