Macleod, C. J,
1. The plaintiff sued to get a half share of the plaint property by a fair and equitable partition. A decree was passed in his favour by the trial Court, although before judgment was delivered it had been discovered that the plaintiff who derived title from Waman, the 5th defendant, grandson of Gopal in the pedigree at page 11, was a minor at the time he purported to transfer his share to the plaintiff. The 1st defendant, the main contesting party, derived title from Visaji, the brother of Gopal. It was the plaintiff's contention that Visaji and Gopal were brothers. The 5th defendant in his written statement, said that he had no objection to the plaintiff's suit, and also consented to his being made a co-plaintiff with him if it was necessary. When it was discovered that the plaintiff, owing to Waman's minority when he passed the sale-deed, had no title, Waman having attained majority excuted another sale-deed in favour of the plaintiff. The learned Judge considered that it cured the original defect in the title and passed a decree for partition.
2. In first appeal all the issues on the merits were found in favour of the plaintiff, but the learned Judge was of opinion that the defect in the plaintiff's title could not be cured by the sale-deed effected during the suit. It seems to me that the learned Judge not placed sufficient importance upon the particular nature of this suit which is one for partition. It is quite true that if a plaintiff's title is discovered to be defective, in many cases that cannot be cured. But in a partition suit all parties are in the same position, and the obvious course for the trial Judge to pursue on discovering that Waman was a minor at the time he passed a sale-deed to the plaintiff, was to make Waman a plaintiff. Waman and plaintiff were acting in concert. That is shown by Exhibit 188, and even if the plaintiff had disappeared entirely from the case, a decree for partition could have been made between the co-defendants provided that all the persons entitled to the property were before the Court. It seems to me, therefore, this is purely a matter of form, which could have been cured equally well by the trial Judge by making Waman a party plaintiff instead of continuing him as a defendant, and by then directing partition of the property. If this course could not be pursued, it could only mean that the plaintiff would have to file another suit on the basis of the second sale-deed. As a matter of fact the important issues in the case are quite distinct from the issue whether Waman as a matter of fact transferred his share to the plaintiff. Those issues all went to the root of the dispute between Gopal's branch and Visaji's and had been decided in favour of the plaintiff.
3. It was suggested that both Courts were wrong in finding that Gopal's branch had not been excluded from the family property within twelve years of suit. But the evidence on that issue has been very carefully considered by the Judges in both the Courts, and I see no reason to think that they were wrong in coming to the conclusion from the evidence that Waman had not been excluded. The result must be that this appeal is allowed and the decree of the trial Court restored. The plaintiff will be entitled to his costs of this appeal and in the appellate Court.