1. In Second Appeal No. 572 the appellant is the original plaintiff, and the only question in this appeal is whether the suit to recover a portion of the Yedur property is barred under Section 47 of the Civil Procedure Code. The lower appellate Court has held, differing from the trial Court, that the suit is so barred because the plaintiff ought to have proceeded in execution of the award decree of 1894 for recovering this property inasmuch as it was directed in that decree that on the death of Bhujang, which took place in 1898, the plaintiff was entitled to recover one-third share in this property. The lower Court has based this reasoning not on the ground that there was an executable decree based on the award but on the ground that although there was no judgment or decree in conformity with law based on the award, the plaintiff, who had filed a certain application in execution of the order of the Court directing the award to be filed, is estopped from contending that the order did not amount to a decree and was not executable as such.
2. Now, it appears that this award was filed in Court, and under the Civil Procedure Code the Court has to pass a judgment directing the award to be filed and thereafter a decree is to follow in terms of the award. In other words, there must be two documents, one judgment and the other a decree in terms of the award. Here, however, there is only one document which is styled as a decree and it recites that the award should be filed without saying anything more, and there is the assessment of the costs of the parties. It, no doubt, does appear that the plaintiff filed an application to execute that order treating it as a decree, and he seems to have obtained some relief under it though not exactly in terms of the decree. But it is quite certain that there is no document in law which can operate as a decree in terms of the award. Even the lower appellate Court has recognised this, because it says that there is in law no judgment and no decree. The ground of estoppel on which the lower Court has based its judgment seems to me to be erroneous. Even though the plaintiff erroneously thought the order as a decree and executable as such and obtained some relief under it though not as contemplated by the award, still it woud not disentitle him from contending subsequently that he was mistaken in treating it as a decree if in law it did not amount to such. There cannot be estoppel against a statute and the doctrine of approbate and reprobate also cannot apply. It applies only to the conduct of the parties, and the conduct of the parties is immaterial when the question of the legality of a document is concerned. It is held in Ishwardas Jagjiwandas v. Dosibai I.L.R. (1882) 7 Bom. 316 that before effect can be given to an award by execution proceedings, there must be a judgment according to the award and a decree following thereon. This seems to be the only case on this point, and no authority has been cited to show that where there is no judgment and where the order simply directs that the award should be filed without incorporating the terms of the award in the decree, that order is executable as a decree. The trial Court, in my opinion, took the correct view when it held that it was not executable and that this suit was not barred under Section 47 of the Civil Procedure Code. I think, therefore, that the decision of the lower Court on this point is not correct, and that there is no bar of Section 47 of the Civil Procedure Code.
3. It is, no doubt, true that if the plaintiff had come to the Court to enforce the award after twelve years from the date of the award without there being any acknowledgment in the meanwhile, his suit based on the award would be time-barred. But on that point there is a definite finding of both the lower Courts that the suit is not barred because there have been acknowledgments by the defendants' predecessors, and no adverse possession by them. That being so, the award is still enforceable, and a suit can be maintained to enforce the award. The present suit is indeed of that type inasmuch as it prays for a relief in accordance with the award.
4. The decree in this appeal, therefore, in my opinion, should be reversed, and the decree of the trial Court restored, and the plaintiff should be given relief with regard to the Yedur property. The appeal is allowed with costs in this Court and in the lower appellate Court. The appellant will get his costs from defendant No. 3. Respondent No. 2 in appeal No. 572 is unnecessarily joined. The appeal against him is dismissed with costs.
5. Turning now to Second Appeal No. 610 of 1934, the only contention raised on behalf of the appellant, who was the original defendant No. 2, and who also claims as assignee of defendant No. 4, is that the plaintiff has not brought into hotchpot in this suit all the properties which were dealt with under the award. For instance, there was the property situated at Belgaum which was dealt with in the award and still it is not sought to be obtained possession of in this suit, and that the suit, therefore, being one for a partial partition, is not maintainable. This contention was raised by defendants Nos. 1 and 3 in their written statement and defendant No. 2 supported that written statement. It appears, however, that an issue was framed in the trial Court on this point, and it was held that this property was held not as joint tenants but as tenants-in-common by the parties, and relying upon the decision in Pakkiri Kanni v. Manjoor Sahib I.L.R. (1923) Mad. 844, the Court was of opinion that this suit by one tenant-in-common to obtain possession of his share in certain properties under the award is maintainable even though some other property dealt with under the award is not brought into the suit. The cases relied upon on behalf of the defendants were distinguished on the ground that they were cases of joint tenancy and not of tenancy-in-common. In the appeal Court, although a ground had been taken in the memorandum of appeal, it clearly appears that that ground had not been urged, and there was no decision, therefore, on the point.
6. The appellant now contends that this is a question of pure law and as such he is entitled to urge it in second appeal, even though it was abandoned in the lower appellate Court. Assuming that he is entitled to take up that point here, I think the decision of the trial Court on that point is correct and that the Belgaum house need not be brought into this suit. As rightly held by the trial Court, this is a suit not between members of an undivided joint Hindu family but between tenants-in-common, that is to say, between persons with respect to whose properties an award has already taken place in which certain shares in the properties have been assigned to certain persons. That being so, the family has been already disrupted, and certain rights and certain specific properties have been created in favour of different persons, and it is open to a person in whose favour a right has been created in that award to enforce that award in so far as it is in his favour. It is his option to enforce that award with regard to any property with respect to which his right has been declared. If he does not include in it any other property with respect to which his right has been declared, that is his own concern, and it cannot be said that the suit is not maintainable on that ground. A clear authority for that proposition is to be found in Pakkiri Kanni v. Menjoor Sahib I.L.R. (1923) Mad. 844, where it has been held that a suit for partition of common properties, and not joint properties, is not liable to be dismissed on the ground that the suit did not include all the common properties available for partition. There is no case of this High Court which holds that in the case of tenants-in-common or in a case where an award has taken place between several persons, the person who files a suit to enforce the award is bound to include each and every property that is given to him under the award. The learned advocate on behalf of the appellant contends, however, that the principle which applies to the case of a joint family applies to the case of tenants-in-common also in this respect. But I do not think that that contention is correct. In the case of a joint family, no coparcener can claim that he has got a certain specific share in any parcel of property, and therefore, if a suit for partition is to be brought, in order to adjust the equities between different coparceners, it is necessary that the whole of the family property should be brought into hotchpot. It may be even in the case where the parties are tenants-in-common that in order to do justice between the parties, the Court may consider it to be desirable that all the properties must be included. But it does not necessarily follow from that that in the case of tenants-in-common a suit by such a tenant-in-common is not maintainable because he does not include all the properties in the suit. But even assuming that in a partition suit all such properties should be brought into hotchpot, I think the matter would be different where the suit is brought to enforce an award in which rights have been created in favour of parties in specific properties, and I do not think, therefore, that in such a suit it is incumbent on a person to include all the properties which are awarded to him in the award.
7. That being the only point in appeal No. 610, the appeal fails and it is dismissed with costs.