1. The subject matter of this litigation so far as concerns the appeal before us is the house described as 'House B.' Kashidas and his two sons plaintiff and defendant formed a joint Hindu family and this house was joint family property. In 1913 these three coparceners made a partition with the aid of four arbitrators. Exhibit 17 is the award. It appears from this document that there had been a previous partition and that therefore the joint status of the parties had already terminated. What the arbitrators purported to do was to correct the inequalities of the previous partition. Para 2(a) of this document deals with 'House B'. It is first stated that Rs. 100 baa to be paid every year to the temple of Balkrishnaji at Surat for certain religious ceremonies. The document then proceeds as follows:
For that out of the immoveable properties of Kashidas Bhaidas House No. 1 [here follows the description] has been set apart for being given in 'Krishnarpan' to the said temple so that the right share or claim of house can prevail against the said house. Kashidas Bhaidas may himself carry on the management thereof during his life-time, or cause it to be managed by any one he likes and pay the said Rs. 100 to the temple every year out of the rent of the said house and therefrom the said 'Manoratha' shall continue to be celebrated every year. After the death of Kashidas Bhaidas whoever is in management of the said house should give it in 'Krishnarpan' to the said temple, so that the Manoratha may be continued to be celebrated every yer as above stated.
2. It has been found as a fact by the lower appellate Court that the parties at the time accepted this award and though some argument was addressed to us on this point, and though it appears that at a later stage the parties were inclined to dispute its validity, it must (in my opinion) be taken to be binding upon the parties to this litigation.
3. After the award Kashidas handed over the management to the defendant. Kashidas died in 1914 and defendant continued in management, and did not make over the property to the temple. In 1916 a suit was filed on behalf of the temple against defendant requiring him to deliver possession of the house and to execute a conveyance. That suit resulted in a compromise whereby defendant paid Rs. 2,125 to the temple, and retained possession of the house.
4. The present suit was filed by plaintiff to recover one half of the house. His suit was based on two grounds.
(a) That the house continued to be joint family property.
(b) An agreement between defendant and himself.
5. The Courts have held that the agreement was not proved. The trial Court held that the effect of the award was to create a trust in favour of the temple, that it was after that date held by defendant, or by defendant and plaintiff' as trustees without any beneficial interest, that the result of the compromise was that the beneficiary transferred the house to defendant for Rs. 2,125, and that failing the alleged agreement, there was no ground on which it could be said that defendant acquired the property on behalf of himself and plaintiff jointly. The plaintiff's claim was therefore disallowed. The lower appellate Court took a different view. The learned District Judge held that the special agreement alleged by plaintiff was not proved, but he found that defendant was in possession on behalf of the family and being thus in the position of an agent of plaintiff after the death of Kashidas he could not obtain by the compromise any advantage for himself alone. In the alternative the District Judge held that the result of the compromise was to annul the partition made by the arbitrators and that the house therefore became once more joint family property and plaintiff was therefore entitled to a moiety.
6. The first question is what was the effect of the award of 1913. There was no absolute gift of the property. There could indeed be no gift without a registered document [Section 123 of the Transfer of Property Act], There was however a trust and Kashidas was appointed trustee during his life-time with power to appoint any other person, not necessarily a member of the family, to manage the property on his behalf. The legal position, as I understand it, is in no way affected by the fact that in exercise of this power he entrusted the management to the defendant. The position would be the same had a stranger been appointed. When Kashidas died defendant was the manager. The award says 'After the death of Kashidas Bhaidas whoever is in management of the said house should give it in 'Krishnarpan' to the said temple'. Had defendant carried out this direction literally plaintiff could have had no claim of any kind either against defendant or against the property. Indeed after the award plaintiff's interest in the property ceased absolutely. By arrangement between defendant and those representing the temple a sum of money was substituted for the house.
7. Some argument has been advanced as to the effect of certain accounts of January 1915. It appears that after the death of Kashidas defendant gave credit to plaintiff for a share in the rent of the house and debited him with a corresponding share of the expenses of the ceremony. From this it is urged it ought to be inferred that plaintiff's interest in the house was recognized by defendant. But it must be remembered that up to the death of Kashidas the rents were liable to be divided for there was only a charge in favour of the temple of Rs. 100 per annum. Kashidas died in 1914 and the fact that defendant very shortly after followed the practice which was correct in his life-time is a very slender foundation for the proposed inferences. It is indeed not very clear how far these accounts deal with arrears due during the life-time of Kashidas and how far the sum divided accrued after his death. There is no doubt an admission but in the circumstances it is in no way conclusive It is not possible to hold that the rights which plaintiff had lost under the award were revived by this settlement in 1915. Plaintiff is in no way concerned with the compromise between defendant and the temple. He was never a trustee under the award and defendant did not hold the property on his account but by virtue of the power given to Kashidas to appoint any person to manage. Plaintiff's consent to that arrangement was wholly unnecessary. Upon this point the view taken by the trial Court was in my opinion correct.
8. As to the second ground on which the learned District Judge has relied I fail to see how the house became joint family property by reason of defendant's acquisition. It lost that character by virtue of the award, and the fact that defentant who subequently acquired it was at one time a coparcener with plaintiff cannot make it joint family property in his hands. It is only in very special circumstances which do not exist here that such a result could follow.
9. It follows that the decree of the lower appellate Court is wrong. I would, therefore, allow the appeal with costs here and in the lower appellate Court and restore the decree of the trial Court so far 'House B' is concerned.