N.G. Chandavarkar, Kt., J.
1. The first question is whether this is an impartibly village. It is argued that it is, because its tenure is Bhagdari. In the Court below no point would appear to have been made that the village, being Bhagdari, could not be partitioned by metes and bounds. The question as to its impartibility was rested there by the appellant on other grounds. Whether the village is Bhagdari or not must be determined on evidence, and we should not be justified in deciding the case on that point, raised as it is for the first time in appeal. But the appellant's pleader has referred to certain documentary evidence to show that the point was present to the minds of the parties in the Court below and was raised there. That evidence consists of judgments in what are known as the Kabilpur, Jamalpur, and Visalpur cases. In the judgments relating respectively to the first and the last, there is a reference to the fact of these villages being either Bhagdari or similar to Bhagdari; but the judgment (Exhibit 258) relating to Jamalpur, which is the village concerned in the present case, is silent as to that. The materials before us are too meagre to enable us to decide the question satisfactorily, and they are meagre, because it was either not raised in the lower Court, or, if raised, it was not sufficiently prosecuted. If the village is in fact held on the Bhagdari tenure, our decision upholding the lower Court's decree directing partition will not necessarily prejudice the appellant, because it is open to the Collector to intervene under the Bhagdari Act and take steps to prevent a partition of the village.
2. Failing on the point abovementioned, the appellant's pleader urges that the village is impartible, first, because the arrangement with Government has all along been that the tenants-in-common should be jointly responsible to Government for the land revenue payable to the latter; and secondly, because in a previous suit between the parties it was held that the lands in the village were not divisible, only the profits thereof were. As to the first of these grounds, no arrangement settling the relations between Government and the tenants-in-common can be regarded as determinative of the relations of the tenants inter se. As to the second ground, the decision in the previous suit was passed in terms of a compromise that the profits should be divided. There was no issue raised, no adjudication on the issue whether the village was impartible. The mere fact that the parties settled among themselves by compromise that the lands should not be divided, but that they should enjoy the profits, could not in law impart the character of impartibility to the estate. Impartiality must arise out of some special tenure or some general, family, or local custom: Vinayak Waman Joshi Rayarikar v. Gopal Hari Joshi Rayarikar . Parties cannot make an estate impartible which is partible. That is opposed to public policy. Besides, the decision relied upon seems to have been made in terms of a compromise in which a minor was concerned. The Court's sanction ought to have been obtained to its terms as being for the benefit of the minor, under Section 462 of the Code of Civil Procedure (Act XIV of 1882) then in force. No such sanction is proved by the record to have been obtained in the manner prescribed by the provisions of Section 462. So the argument of res judicata fails. The lease by defendants 1 and 6 to defendant No. 9 was plainly in violation of the long practice as to management, enjoyment, and leasing which had obtained among the co sharers; the lease in question was made without the consent of the other co-sharers, and was, as found by the lower Court, not beneficial to them. The authorities cited by Mr. Gokuldas to show that a lease by one co sharer binds the other co sharers unless it has done substantial injury to the latter or led to the destruction of the property, are inapplicable here, where it is found-and found rightly-by the lower Court upon unimpeachable evidence that all the co sharers had been letting out the lands jointly before this lease by defendants 1 and 6. As to the deduction of Rs. 12 from the share of Surbhai and Rs. 40 out of the revenue of the Hoonda lands, we concur with the Subordinate Judge both in his reasons and conclusion. We cannot interfere with the order as to costs made by the Court below in its decree. The plaintiff alone asked for his share by partition. The defendants strenuously opposed his right. The case is thus taken out of the rule that where there is a general partition, the costs of all the parties should come out of the estate.
3. In appeal No. 18, by defendant No. 19, he has been held rightly liable for mesne profits after suit.
4. The decree is confirmed and both the appeals are dismissed with costs.