A. Narayana Pai, J.
1. This Second Appeal is by the plaintiffs in Original Suit No. 57 of 1949-50 on the file of the Court of the Subordinate Judge of Mysore, who lost both in the suit as well as in R. A. No. 15 of 1953 presented by them to the Court of the District Judge of Mysore.
2. The Plaintiffs and the first fifteen defendants are members of a Hindu family governed by Mitakshara Law. The subject-matter of the suit was a partition effected under a registered document Ex. XII, dated the 20th of June, 1938, under which the family divided itself into five branches represented by five sons of the common ancestor of the family called Veerathiah. The said Veerathiah died in the year 1898 leaving behind him five sons, Appajappa, Lingappa, Chikkappaji, Huchappa and Puttegowda. The first among them Appajappa was the manager of the family from 1898 till he died in the year 1929. The said Appajappa's son Veerathiah is the eighth defendant in the suit. From 1929 till partition was effected, the second son Lingappa was the manager. He was the first defendant in the suit and the first respondent in the Second Appeal. He having died shortly after the presentation of the Second Appeal, his sons, Puttaswamy, Veerathiah and Puttanna, have been substituted in his place as legal representatives, as respondents I (a), I (b) and I (c) in the Second Appeal. The third son Chikkappaji's son Thammiah was the second defendant in the suit whose two sons and two daughters were the plaintiffs. The fourth son Huchappa's children were defendants 3 to 7. The youngest son Puttegowda had a son called Channaveerappa whose seven children were defendants 9 to 15 in the suit. The direct parties to the partition under Ex. XII were Veerathiah the eighth defendant, Lingappa the first defendant, Thammiah the second defendant, Huchappa the father of defendants 3 to 7 and Channaveerappa the father of defendants 9 to 15.
3. Defendants 16 to 20 are alienees of several items of property from the plaintiffs' father, the; second defendant. As Mr. Lakshminaranappa, the learned Counsel for the appellants, stated at the commencement of his arguments that he would not press the case of the plaintiffs in respect of the alienations made in favour of these defendants no further reference to these defendants or the alienations under which they claim, is called for.
4. As already stated, under the partition deed Ex. XII, the family split up into five branches. That deed allotted properties to each of these branches as set out in the schedules annexed to it. The principal features of the partition deed which are the subject-matter of controversy in this litigation, were the following:
5. Setting out a list of debts said to be binding on the family and then remaining to be paid, amounting to a total of Rs. 12,501/-, the deed provided for the first defendant Lingappa being put in possession of 30 acres of wet land made up of six acres taken out from the share allotted to each of the branches, with the stipulation that he should, out of the net income realised from those thirty acres, pay the interest accruing on the family debts. Each of the sharers was, however, given the liberty of taking back possession of the six acres of land taken out of 'his share, by paying to the first defendant not less than Rs. 500/- per year for the purpose of discharging the principal amount of debts. Two of the sharers, however, made immediate arrangement, for the discharge of their respective portions of the family debt. One of them was the eighth defendant Veerathiah who immediately made over to the first defendant Lingappa the gold jewels and two acres of wet lands which had been allotted to his share in the partition. The other was Thammiah the second defendant, the father of the plaintiffs. Stating that he was unable to discharge the debt of Rs. 2,500/- he delivered to the possession of the first defendant certain items of property which had come to his share in the partition, for the purpose of discharging his share of the debt of a total extent of 5 acres 38 guntas, with the stipulation that the same should be adjusted towards the portion of the debt payable by him.
6. The first defendant Lingappa was given 10 acres of wet land in excess of his one-fifth share, the statement contained in the partition deed in respect of it reading 'as you have looked after our family properties with great efforts and -earned some more properties, we have given you as Mufath 10 acres of wet land more than our share or shares'.
7. The first defendant. Lingappa was also given a sum of Rs. 2100/- pursuant to the following provision contained in the deed; viz., 'for the marriage of your children we have left with you Rs. 1700/- principal under a hypothecation deed dated 24-11-1928 executed by Annadani ofthe aforesaid Chandgal and Rs. 400/- interestthereon, in all Rs. 2100/- as Mufat'.
8. The principal attack made, by the plaintiffs against this partition deed in their plaint is the one contained in para 3 thereof, which reads as follows: -
'3. The plaintiffs 1 and 2 have a right by birth to 2/15 of the entire joint family properties and the yield from the joint family properties as on 20-6-38 when the defendants 1, 2 and 8 and the fathers of the other defendants up to 15 are said to have been induced and prevailed upon by the first defendant to effect a partition per registered partition deed No. 4075/37-38. The first plaintiff having applied for a copy of the said partition deed learns that the said partition is inequitable, unjust and highly prejudicial to the interest of those minor plaintiffs containing suppression of the valuable family properties, family jewels and silver vessels and averring the existence of some debts which never existed. The said partition arrangement engineered and brought about by the first defendant under whose thumb and influence the other members of the family were kept, is both unjust, inequitable and disproportionately unequal so far as the benefits conferred on the parties concerned and on scrutiny it is found to be solely intended for the undue benefit and advantage of the then all powerful and all knowing manager of the joint family, viz., the first defendant.'
After stating that their father was never allowed to have anything to do with the family affairs, the plaintiffs particularise their grievances under the following headings: (a) Item 60 of the plaint schedule, one of the items allotted to the plaintiffs' father, was shown in the partition deed merely as property of extent of 2 acres 9 guntas, whereas the only interest of the family in it was a usufructuary mortgage right for a debt of Rs; 400/- owing to the family; (b) item 65 of the plaint schedule described in the deed to be of an extent of 35 guntas, was subsequently, ascertained to be only (sic) guntas in extent; (c) the first defendant has taken disproportionately larger share of the choicest lands together with an extra quota of 10 acres of valuable wet lands, and (d) the first defendant has taken for himself six acres of wet land towards an alleged family debt which never existed. On these allegations, they prayed for a decree for cancellation of the partition arrangement dated 20-6-1938 and for partition and possession of their. 5/14th share in item Nos. 50 to 80-A of the plaint schedule. It may be mentioned that these items comprise only those properties which had been allotted to the shares of the first and second defendants.
9. ID the second appeal before us, Mr. Lakshminaranappa, learned counsel for the plaintiffs-appellants, has not pressed all the points raised by or on behalf of the plaintiffs in the Courts below. As already stated, he has dropped the case against the alienees. He also stated that he would not argue the general attack that there has been an unequal or inequitable distribution of properties among several sharers nor make :any point out of the fact that item. No. 65 of the plaint schedule was subsequently discovered to be only 14 guntas in extent as against 35 guntas mentioned in the partition deed.
10. According to the manner in which the case for the plaintiffs has been presented to us in this second appeal, the relief sought by the plaintiffs would be not one for a total cancellation of the partition deed Ex. XII, nor for a complete redistribution of property afresh. From one point of view, the relief now asked for could be described as the reopening of the partition to the extent necessary to correct or rectify the injustice said to have been caused to the plaintiffs by certain of the provisions contained in the partition deed. From another point of view, it may also be described as a prayer for the recovery of some property from the first defendant, either on the ground that the first defendant has obtained possession thereof in excess of the extent legitimately allottable to him on a partition or on the ground that the second defendant had no valid justification in law to make over those properties to the first defendant under the partition arrangement. The provisions of the partition deed, by virtue of which the first defendant came in possession of these excess items of property and on the alleged invalidity or illegality of which the learned counsel for the appellants bases the claim he makes on behalf of his clients, are the following: (1) Allotment to the first defendant of 10 acres of wet land in excess of his one-fifth share; (2) Making over of an outstanding due to the family to the extent of Rs. 2100/- as Mufat to the first defendant; (3) Making over by the second defendant to the first defendant of six acres of wet land towards the discharge of the second defendant's share of the alleged family debts, and (4) allotment to the second defendant of item No. 60 of the plaint schedule, purporting to be an absolute property of the family, whereas the family's right was only a usufructuary mortgagee's interest.
11. Both the Courts below have rejected the case of the plaintiffs that the partition evidenced by Ex. XII was obtained by the first defendant by fraud and misrepresentation. They have also held concurrently that the division of the properties has been fair and equitable and that there had not been any unjust discrimination with regard to the allotment of the lands to the second defendant's branch.
12. These findings being concurrent findings of fact by the first two Courts are not open to question in Second Appeal. Nor has the learned counsel for the appellants made any attempt to canvas these findings before us. According to him, these findings do not preclude the appellants from substantiating in Second Appeal the limited case formulated by him in the manner stated above.
13. If the finding that there has not been any fraud, misrepresentation or other type of unfair dealing in the matter of the partition evidenced by Ex. XII, is accepted, the attack made against two out of the four provisions of the partition deed selected for challenge by the learned counsel for the appellants must, in our opinion, necessarily fail.
14. The first of them is the provision entitling the first defendant to collect and retain an outstanding due to the family to the extent of Rs. 2100/-. The only basis of attack against this provision is that it is described as Mufat in the partition deed which term, we are told, means virtually a gift or a favour conferred. If, however, the sentence is read as a whole, it is perfectly clear that this allotment to the first defendant was certainly not in the nature of a gift; it was, as the sentence itself indicates, a provision made for the marriage of his children. It cannot be stated that a provision for marriage of children of the family in a partition deed is either invalid or improper. It appears from the evidence of the first defendant, -- and it has not been seriously challenged, -- that there had been several marriages performed at the expense of the family in other branches, whereas none of the children of the first defendant had been married before the partition. If, therefore, a provision was made for the marriage of the first defendant's children by common consent of all sharers, no valid objection could be raised against such a provision. It was no doubt argued that the second defendant's children had also not been so married before the date of the partition. But, none of them was admittedly of marriageable age at that time. Nor have the plaintiffs made any grievance about the omission to make any provision for the marriage of all or any of them. This attack, in our opinion, must therefore fail.
15. The other attack, which is equally without substance, is the one in regard to item No. 60 of the plaint schedule. The complaint in regard to this, as already stated, is that whereas the family had no more than a mortgagee interest in the land included in this item, that land was described in the partition deed as if it belonged absolutely to the family. In the absence of fraud or misrepresentation, the only way in which this provision could be attacked is by showing that it was so described by a mutual mistake, and that is how the learned counsel for the appellants has sought to substantiate the attack. But, the evidence clearly discloses that there was no such mistake. According to the first defendant's evidence as D. W. 12, the second defendant himself wanted this usufructuary mortgage to be allotted to him and that a certain debt due by him to the family should be written off and that this request of the second defendant was complied with. That the 2nd defendant knew that this item was a mortgage interest and himself wanted it to be allotted to his share, is also supported by the evidence of Garalapuriah P. W. 7. He clearly states that the second defendant took his item for his share as he wanted to receive the mortgage-money when the land would be redeemed. Some doubt was sought to be cast on this evidence on the ground that this witness has referred to this land as item No. 16. But it is quite apparent that '16' was a mistake for '60' from the fact that in addition to giving this item number, the witness has described the land as one bearing Survey number 118 which on a reference to the plaint schedule is the survey number included in item No. 60 of the schedule. The second defendant, who was examined as D. W. 16 long after the witnesses mentioned above had given evidence, has not stated anything to discredit their evidence. This attack therefore also fails.
16. With reference to the arrangement made in the partition deed for the discharge of family debts, the case of the plaintiffs is that these debts never existed. That is exactly the case which their learned counsel has pressed before us. The existence or otherwise of the debts is undoubtedly a question of fact. Those debts have been set out in the partition deed as actually existing and remaining to be discharged by the family on the date of the partition. To this partition, the adult members of the family representing the five branches are parties. Prima facie, they must be held to have accepted the truth of this statement. If the finding that there has not been any fraud or misrepresentation in the matter of the partition is accepted, this question cannot be permitted to be raised or canvassed in Second Appeal. There is, however, one reason why we cannot prevent the appellants from raising this question.
17. The learned Subordinate Judge who tried the suit deals with this question in paragraph 18 of his judgment. After summarising very briefly the evidence bearing on this question, he expressed the view that the first defendant has not given a satisfactory explanation on this aspect of the plaintiffs' case. After giving some reasons for this opinion to which we shall make a more detailed reference at a later stage, the learned Subordinate Judge concluded the paragraph as follows:
'So far as this aspect of the case is concerned, there is not sufficient evidence to show the existence of the aforesaid common liability and of 1st defendant's plea that he discharged the entire debt himself and that the 2nd defendant voluntarily abandoned his claim to his 6 acres of land. Possibly, therefore, the plaintiffs have a good case to compel the 1st defendant to give up these 6 acres of land either by paying off Rs. 2500/- to him (first defendant) or otherwise as the case may be. Bat, this is not a matter on which any relied could be granted in this suit to the plaintiffs since they have not put forward the specific claim and no opportunity has been given to the Ist defendant to meet such an aspect and again no issue has been framed on this matter.'
18. The learned District Judge upon appeal also appears to have entertained a similar opinion as is evident from the following extract from the eighth paragraph of his judgment.
'As to whether the Ist respondent was entitled to appropriate for himself the 6 acres of land, that and respondent was entitled to out of the 30 acres of land left in common without disclosing or establishing the fact that he had paid up Rs. 2500/- towards the debt that had fallen to the share of the 2nd respondent, is a point that cannot be considered in this suit. The entire suit was one for cancellation of the partition arrangement entered into between the and respondent and the other members of the family on the ground that the same was fraudulent. It is not the case of the appellants that the Ist respondent was not entitled to retain six acres of land that the 2nd respondent was entitled to get without paying his share of debt Rs. 2,500/,- and that they are not entitled to agitate this matter without specifically making it a point for consideration and without allowing the Ist respondent to put forward his plea with regard to the claim. To allow the appellant to agitate the matter of recovery of six acres of land left with the Ist respondent in this suit, would not in my opinion, be fair and reasonable since it is contended by the learned Advocate for the respondents that they were not given opportunities to specifically concentrate on this claim of the appellants.'
19. The learned counsel for the appellants criticises the judgment of the trial Court on the-ground that the learned trial Judge having observed: that the evidence of the first defendant in support of the debts was unsatisfactory and expressed the tentative view that the plaintiffs had a good case to compel the first defendant to give up six acres of land taken from the second defendant on account of debts, he should have examined the evidence in greater detail and not merely refused to grant relief to the plaintiffs on the ground that the relief in respect of these six acres of land is beyond the scope of the suit. He criticises the judgment of the lower appellate Court on the ground that it has merely reiterated the view that the plaintiffs should not be permitted to agitate the matter of recovery of these six acres of land in this suit for the reason that it would be unfair for the first defendant to do so, without examining the evidence and without examining the correctness in law of this refusal to grant relief to the plaintiffs.
He further states that the plaint has in clear terms stated that the alleged family debts did nor exist, that the first defendant has met this averment by asserting the existence of the debts in major portion of para 3 of his written statement and sought to support the validity of the setting apart of 30 acres on the whole for payment of debts, that the bulk of the evidence adduced on behalf of the contesting defendants related to the question of existence of the debts, and the cross-examination of the first defendant as P. W. (sic) dealt practically with no other subject than this. Having regard to these circumstances appearing on record, the learned counsel contends that it was wrong to have denied to the plaintiffs a relief which, in the opinion of the trial Judge, they were in all probability entitled to. He also wants us to read paragraph 18 of the trial Court's Judgment as actually recording a finding in favour of the plaintiffs on this point, and contends that the appellate Court having omitted to express any disagreement with that view, we must take the trial Judge's view as final and binding in Second Appeal, or that in any event, if there was any reason to hold that the first defendant was either taken by surprise or was misled into not adducing full evidence on the question of debts in the absence of a specific issue on the question, the proper course for the lower appellate Court to take would have been either to remand the suit or ask the trial Court to record further evidence after framing a specific issue on the question.
20. On the contrary, Mr. Krishnamurthy learned counsel for the contesting respondents I(a) I(b) and I(c) (sons of the deceased first defendant), argues that though the lower appellate Court has not in clear terms recorded a finding on this question, such a finding in favour of his clients can easily be read into the following observation contained in paragraph 7 of the judgment of the lower appellate Court :
'The details of all the family debts have been noted in Ex. XII itself and as such it is not correct to contend that the Ist respondent had omitted to give the full particulars and the details of all the family debts to the members of the family. The other respondents, who were parties to the partition, have unequivocally stated that the Ist respondent disclosed to them the details of all the debts and that they accepted them as true. As already stated, this fact has been specifically mentioned in Ex. XII itself.'
He further contends that the oral and documentary evidence placed on record relating to these debts read along with the express statement relating to the debts contained in the partition deed itself which all the parties to the partition accepted as true, and which even the second defendant never questioned or challenged right up to the time of the suit, is quite sufficient to give a finding that the debts really existed and were of such a nature as to be binding on the family. If, however, the appellants can be said to be in a position to suggest or make out that there is any deficiency in the evidence adduced by the first defendant, he states that his clients are willing to adduce further evidence and that in the circumstances of the case, an opportunity to adduce further evidence should in fairness be given to his clients.
21. The original suit, out of which this Second Appeal arises, was filed on the 23rd of December 1949 and it is therefore governed by the Code of Civil Procedure in force in the erstwhile State of Mysore before the central Code was extended to the State. Under clause (d) of Subsection (I) of Section 100 of that Code, one of the grounds on which a Second Appeal could be presented to the High Court was :
'an erroneous finding upon a material question of fact producing an error in the decision on the merits in those cases in which upon any question of fact the finding of the Appellate Court differs from that of the Court of First instance.'
Under section 103 of the same Code, the Second Appellate Court may, if the evidence on record is sufficient, determine any issue of fact necessary for the disposal of the appeal but not determined by the lower Appellate Court.
22. According to the learned counsel for the appellants, this is a case where a finding in favour of the plaintiffs has been recorded by the trial Court on the question of debts on which the lower Appellate Court has expressed no opinion whatever, and that, therefore, the finding of the trial Court must be taken as binding. He relies on a decision of the old High Court of Mysore reported in Rangiah v. Narasamma, 20 Mys HCR 213. In that case, there was a concurrent finding against the appellants on one of the questions of fact. But, as regards another question of fact, while the Court of first instance refrained from giving any finding, the lower Appellate Court found that also against the appellants. The High Court declined to treat the latter question as one on which the Appellate Court has recorded a finding different from that recorded by the Court of first instance within the meaning of Section 100(I)(d). The finding of fact, which was therefore accepted as final by the High Court in that case, was a finding of the first Appellate Court and not of the Court of first instance.
This is not an authority for the position that where the lower Appellate Court has omitted to record a finding on a question of fact on which the Court of first instance has recorded one, the finding of the Court of first instance should be taken as binding. All that the decision relied upon did was to refuse to go into a question of fact under clause (d) of Sub-section (I) of Section 100 of the Code of Civil Procedure. The findings of fact that are binding in Second Appeal are those recorded by the lower Appellate Court. When there is no such finding by the lower Appellate Court on any question of fact and that question is a material one for the decision of the case on merits, the position is governed by Section 103 and not by Section 100(I)(d).
23. If, on the other hand, Mr. Krishnamurthy's argument is accepted and it is possible to hold that the observation of the learned District Judge contained in paragraph 7 of Ms judgment extracted above amounts to a finding of fact in favour of his clients and against the appellants-plaintiffs, then the position would be governed by Section 100(I)(d) of the Code and the appellants will be entitled to ask this Court to go into questions of fact.
24. Regarding the request for a remand by Mr. Krishnamurthy to which Mr. Lakshminaranappa did not appear to have any objection, the position, in our opinion, is this : Because the plaintiffs themselves asserted that the debts never existed and such alleged non-existence of the debts was one of the material points in support of their claim in the plaint, it is impossible, in our opinion, for the plaintiffs to say that they were either taken by surprise or otherwise prejudiced or prevented from placing before Court material necessary in support of their case. So far as the first defendant is concerned, the averments in his written statement on this question and considerable quantity of evidence adduced by him make it difficult for his representatives in this Court to contend that the first defendant was taken by surprise or prejudiced by the absence of an issue. We are therefore clearly of the opinion that neither side can claim that an opportunity should now be afforded for leading further evidence on the question. If, as we hold, that neither party was surprised or prejudiced and every party knew that the existence or non-existence of the debts was a material question in issue between them and actually led evidence on that question, the only possible complaint which could be made is either that the lower Appellate Court has not recorded any clear finding thereon or that the finding of the lower Appellate Court is different from the finding of the trial Court. In either view of the case, before any order of remand could be made, we should be satisfied that the evidence on record is not sufficient to come to a just conclusion thereon here in Second Appeal, especially in this case in which the partition, whose validity is questioned, was one come to more than 22 years ago, and the litigation itself commenced more than II years ago.
25. Early in the course of the arguments in this appeal, we indicated to the learned counsel that in any event it was necessary for us to examine the evidence. Both of them therefore have taken us in detail through the entire evidence bearing on the question of debts and addressed us at length on the value and credibility of that evidence. Before proceeding to state our observations and conclusions on this evidence, it is necessary to identify clearly the controversy before us.
26. Mr. Lakshminaranappa made it clear that the case of the plaintiffs was that the debts listed in Ex. XII did not really exist on the date of the partition and that if, on the evidence, it is possible to come to the conclusion that the debts did exist, it was not his clients' case that those debts were not for legal necessity and therefore not binding on the family. In the course of his general observations before addressing us on the details of the evidence, he also told as that he was not questioning the genuineness of the several documents produced by the first defendant as evidencing these debts; that is to say, it was not his case that the said documents were not executed by the persons by whom they purport to have been executed. Some of them are registered documents and some others promissory notes executed in favour of Bankers or money-lenders. He stated in all fairness that we could take it that these documents were executed by the members of the family who have signed them and that if the tenor of the documents can, on the evidence, be accepted as representing the truth, the inevitable conclusion must be that the debts were true and binding on the family.
He seeks to support his case of non-existence of these debts on the date of the partition by dividing the debts into three categories, (I) debts evidenced by documents purporting to have been executed for consideration but in respect of which no consideration actually passed, (2) debts which were true in their inception but which had been fully discharged before the date, of the partition, although the endorsements thereon purport to show that they have been discharged subsequent to the partition and (3) debts the existence of which has not been established by satisfactory evidence.
27. The learned counsel on both sides in their arguments have dealt with the credibility of the evidence, both in respect of individual debts as well as on grounds of general probabilities. It will be convenient first to examine the details and discuss the general probabilities thereafter.
28. The debts listed in the partition deed are the following :
Name of Creditor_________ to be due
Sahukar Sharabhanna of Attibele. Rs. 5,000/-
Attiguppe Suryanarayana Setty of
Mysore. Rs. 3,500/-
Chinnakrishnaiah Setty of Kaveripatna. Rs. 500/-
Meenakshamma. Rs. 700/-
Shanbhogue Ramaswamiah Rs. 500/-
Sahukar Chandrasekharappa. Rs. 550/-
Chikkarayanahalli Thimmappa. Rs. 224/-
Kadappa's Cloth Shop. Rs. 126/-
Takavi Loans due to Government. Rs. 1,301/-
Total : Rs. 12,401/-
29-39. (After considering the evidence given by the witnesses on each of the items listed above his Lordship proceeded :) The general criticism against the evidence of most of these witnesses is that they as bankers or money-leaders admittedly maintain accounts but no such accounts have been caused to be produced by the first defendant to corroborate the oral evidence of his witnesses. No doubt, the accounts, if produced, would have considerably strengthened their oral evidence. But, it cannot be said either that the witnesses are act competent to speak to the factum or truth of the loans or that their evidence should never be believed unless it is corroborated by the accounts regularly kept. Further, every one of the loans is evidenced by a document, either a mortgage deed or a promissory note. The genuineness of these documents has act been questioned. Except in the case of Sharabhanna, there is not even a suggestion that any of these witnesses is acting in collusion with the first defendant with a view to defraud the plaintiffs. Even in the case of Sharabhanna, we have, after examining in detail the arguments canvassed by the learned counsel, found it impossible to hold that he could be Mid to be guilty of any such collusion. The argument that the first defendant must be held to have been trying to defraud his brother the second defendant and the latter's children is not even open in Second Appeal in view of the concurrent findings of fact recorded by the Courts below. If so, the learned counsel on behalf of the contesting respondents is entitled to say that the transactions actually did take place according to the tenor of the documents.
40. The learned counsel for the appellants has argued that the family, which admittedly owned 100 to 150 acres of wet land, 15 to 19 acres of garden and about 20 acres of dry land yielding an average income 6f Rs. 13,000/- to Rs. 14,000/-per annum, cannot in the usual course of things be expected to borrow so frequently as is sought to be made out or to keep the debts outstanding for long periods as is apparent from the documents produced in the case. He draws our attention to two lease deeds Exs. XXVII (38) dated, 21-1-1937 and Ex. XXVII (40) dated 21-1-1937 as furnishing an indication of the extent of income derived by this family. The former is in respect of a wet land of an extent of I acre 17 guntas and the latter in respect of a wet land of an extent of I acre II guntas and under each of them the rent reserved is 71/2 candies of paddy of superior Coimbatore Sanna Variety. On the other hand, the learned counsel for the contesting respondents has emphasised the fact that admittedly during the period of management of both Appajappa and Lingappa, large extent of landed property was acquired for the family by these managers and many marriages were performed in the family, and the bulk of the borrowings was for such purchase or marriages. Regarding the two lease deeds Exs. XXVII (38) and XXVII (40) he points out that the lands covered by them were of a superior variety and that if regard is had for the entire series of lease deeds produced in the case, the average rental works out to only about 3 to 31/2 candies per acre. He also points out that there are 60 to 65 persons in the family to be fed and large amounts had to be spent not only for the purchase of property but also for their improvement. It is obvious that these considerations cannot on the evidence available lead us to any firm conclusions which could have any bearing on the question of the truth or otherwise of the debts. In any event, it will be wrong to discard the direct testimony of the witnesses supported by the documents directly related to the loans, upon considerations of this nature.
41. Much stress is also laid upon the fact that the first defendant has totally failed to produce into Court any accounts relating to the income, expenditure and affairs of the family. Though he denied having kept anything like a regular account, an admission has been elicited from him to the effect that for purposes of income-tax some sort of accounts were maintained. The learned counsel for the appellants therefore argues that the first defendant has suppressed valuable material which, if produced, would have been of considerable assistance in deciding whether the several loans were raised and discharged on the dates appearing in the documents relating to the loans. This argument, however, is not wholly in favour of the plaintiffs. From one point of view, it is really against them.
If, as we have pointed out, there is no substance in the argument that the dates found in the several documents either in respect of the loan itself or in respect of the payments made in discharge of the loans, are not the actual dates on which the transactions of loans or repayments actually took place, the production of the true accounts of the family would have corroborated those dates and in the event of any discrepancies cannot be so conclusive as to falsify the evidence of independent witnesses like creditors, their family members and of attestors of the documents. Secondly, if the family did maintain regular accounts, such accounts must necessarily have been available to all the members of the family at the time of the partition evidenced by Ex. XII. Every one of the parties to the partition accepted the statements contained in the partition deed relating to the debts as true and correct at the time of the partition. Even the second defendant, who now obviously supports his children the plaintiffs, does not say in so many words in the course of his deposition as D. W. 16 that those statements contained in the partition deed are false or inaccurate.
42. This admission by all the adult members including the second defendant about the truth of the statements contained in the partition deed regarding the debts is, in our opinion, a very strong circumstance in favour of the conclusion that the debts were true and did exist on the date of the partition. Even on an independent examination of the evidence adduced, we have held that the evidence is satisfactory except in regard to a couple of items totalling to no more than about Rs. 500/-. We are clearly of the opinion that this deficiency in the evidence is of a minor nature and that the satisfactory evidence in support of the truth of the bulk of the debts taken along with the express admission made by the several members of the family who are parties to the partition, is sufficient to come to the conclusion that the debts listed in the partition deed were true and did exist on the date of the partition.
43-45. The next question argued by the learned counsel for the appellants on this part of the case is that even assuming that the debts were due and were for necessity, it was certainly not a prudent transaction for the second defendant to immediately make over to the first defendant six acres of land. It has been elicited from the first defendant in the course of his cross-examination that these six acres had been originally purchased by him for the family at the rate of Rs. 600/-per acre. It is contended that it would have been far better for the second defendant to have retained the lands without any such absolute transfer and taken advantage of the provision contained in the partition deed enabling him to get back possession by paying at the rate of Rs. 500/- per year, especially when the other evidence including the admission by the first defendant indicates the tendency for land values to go up at that time. The first defendant has also deposed to the effect that two of the sharers, viz., Huchappa and Channaveerappa so got their lands released by making payments in accordance with the terms of the partition deed. (After dealing with the circumstances touching this transaction his Lordship observed:) All these circumstances go to show that the second defendant with full knowledge of the facts voluntarily made over 5 acres 38 guntas of land absolutely to the first defendant in immediate discharge of the share of his branch of the total family liability for debts.
46. It is settled law that if the existence of a family necessity is established, the manner in which it should be met and the nature of the alienation of the family property, if any, made for the purpose of meeting that necessity, is a matter entirely for the manager to decide. So long as he does it honestly and bona fide in the interest of the family the fact that another person in the position of a manager could have or would have done a better arrangement for meeting the necessity, is not an argument available to invalidate the actual arrangement made by the manager. The original case of the plaintiffs in respect of these five acres 38 guntas was, it should be remembered, that their father was either forced or duped into making this arrangement on a false representation that certain debt existed. The further embellishment of that case that in the event of debts being foundto be true and binding now sought to be elaborated before us, is one based not so much on original pleadings of the parties as on the arguments of their learned counsel before us.
We do not wish to say that the argument is not open or that in a case like this one should strictly apply the rule of confining the parties to the pleadings provided, however, that by virtue of such argument, one party is not enabled to take undue advantage of another party. Hence, the real difficulty of the learned counsel for the plaintiffs in this regard consists not in his being faced with any technical objection but in the fact that the findings recorded in respect of facts and circumstances which have a bearing on this question, are such that it is difficult for him to persuade a Second Appellate Court that his clients' father acted without prudent consideration of the affairs at the time he made the arrangement. Although the first defendant has admitted that he had originally purchased this land at Rs. 600/-per acre, he has deposed that at the time of the partition, their market-value was only Rs. 400/,-per acre.
With reference to item No, 60 of the plaint 'schedule, we have already accepted the evidence that the second defendant voluntarily preferred to have cash rather than property. It has been brought out that the second defendant was doing contract business in which he had greater interest than in agricultural operations. It has not been suggested that the contract business was either speculative or one which a prudent manager could not have or should not have undertaken. The original family itself was also augmenting its resources by undertaking large contracts for construction of buildings. That fact is not only not denied but actually relied upon for another argument, viz., that the first defendant must be held to have maintained regular accounts. If, in the light of these circumstances, the second defendant preferred to make an arrangement which would leave his branch of the family completely free from the original family debts so that he as its representative or manager may be free to do business to supplement its income arising out of agricultural lands, it would be difficult to suggest that what he did was imprudent from the point of view of his branch of the family.
47. Even if, therefore, the arrangement made by the second defendant in respect of the family debts is to be regarded as an alienation of the family property, the alienation is such that it can be upheld both on the ground of necessity as well as on the ground of prudence.
48-49. The last point raised by the learned counsel for the appellants, viz., the legality or otherwise of the allotment of an additional ten acres of wet land to the first defendant under Ex. XII over and above his legitimate share as a member of the family, has been argued as a pure point of law. So far as facts are concerned, it is admitted that these ten acres were in excess of the legitimate share normally due to the first defendant upon partition. The deed of partition itself says that it is given to him as Mufat having regard to the fad that he had looked after the family properties with great efforts and acquired many properties for the family.
50. Such additional share given to a managing member is technically described as Jyeshtabhagam in the language of Hindu Law. As a matter of law, it is conceded, and there is no doubt, that Jyeshthabhagam as understood in ancient Hindu Law has become obsolete and unenforceable. If an eldest member or managing member therefore comes to Court and asks for an additional allotment to him in the course of partition, the Courts will not enforce that claim. The question, however, is whether, although the claim to Jyeshtabhagam is not enforceable in a Court of law, members of the family are precluded from allotting some additional property to one of the sharers by common consent. On behalf of the contesting respondents, Mr. Krishnamurthy has sought to support the additional allotment in two ways: It may be treated either as remuneration for special or extraordinary services admittedly rendered by the manager to the family or as a family arrangement to which the father of the plaintiffs was a party as their representative which, therefore, is binding on the children in the absence of fraud or collusion.
51. Mr. Lakshminaranappa for the plaintiffs contends that the manager being bound by law to manage, conserve and improve the properties pi the family, he cannot possibly claim or ask for remuneration for such services. A duty, which a person is legally or morally bound to discharge, cannot possibly, according to him, be described as consideration. If, therefore, services are irrelevant and cannot form consideration for the allotment, the allotment according to him, must be dealt with as disposition of family property without any consideration and therefore void ab initio.
52. Mr. Krishnamurthy relies upon a judgment of Venkataramana Rao, J., of the Madras High Court in Subba Rao v. Subba Rao, reported in 71 Mad LJ 419 : (AIR 1936 Mad 689) as a direct authority in support of his proposition and on the principles stated by their Lordships of the Privy Council in Ramkishore v. Jainarayan, reported in ILR 40 Cal 966 (PC) and by a Bench of the Madras High Court in Ananthachari v. Krishnaswami, reported in : AIR1938Mad102 .
53. In 71 Mad LJ 419 : (AIR 1936 Mad 689), Venkataramana Rao, J., held that although the allotment of any property as Jyeshtabhagam has become obsolete and a Court would not enforce it, if the members of a joint family agree in the course of a partition to give some extra property to an eldest member or even to one of them bona fide, such an arrangement cannot be considered to be illegal on the ground that a certain property was allotted as Jyeshtabhagam or was given in excess of his legitimate share. His Lordship notice? the argument that such an allotment would virtually be an alienation without any necessity amounting to a gift, but expresses the view that it is not accurate to regard partition as an alienation. He distinguishes one of the earlier decisions of the Madras High Court on the ground that the extra allotment questioned in that case was one made in the course of a partition in which a minor was represented not by his father but by his mother, thus making a distinction between the powers of a father under Hindu Law as the representative of his sons in a partition and those of a mother whose rights are not higher than those of an ordinary guardian.
Another reason why his Lordship repelled the attack made in that case against the additional allotment was that there was no claim for reopening of a partition by a minor but only for a partition of the additional property allotted to one of the members on the allegation that that property had not been partitioned at all, which allegation was found to be false. His Lordship also refers to the decision of the Privy Council in Brijraj Singh v. Sheodan Singh, ILR 35 All 337 (PC), in which an arrangement made by a Hindu father under a will purporting to divide the family property between his three sons and awarding a double share to the eldest son was upheld by their Lordships on the ground that it was in the nature of a family arrangement accepted and acted upon for a number of years by the affected parties.
54. ILR 40 Cal 966 (PC) did not deal with the question of Jyeshtabhagam. In that case, one Khedarnath, father of Ramkishore the plaintiff, had purported to give half the share in the family properties to Jainarayan, the son adopted by the widow of Rambilas, the deceased brother of Kedarnath. The basis of the suit was that the adoption of Jainarayan was invalid. Their Lordships observe that if that contention is upheld, Jainarayan would be an absolute stranger to the family and state that although a partition made by a Hindu father may in some circumstances bind his minor sons, yet, if on the partition a share is given to an absolute stranger, the partition may be impeached as a disposition of property made without consideration unless it can be supported as a bona fide compromise of a disputed claim. The suit having been decided on preliminary grounds without going into facts, their Lordships remanded the matter to Courts in India with the observation --
'It may well be, however, that as between Kedarnath and Jainarayan, the latter may be entitled to insist that he stands in the shoes of the former as to the share which would come to Kedarnath upon a partition; and that the Court, if that position were established, would itself, at Jainarayan's instance, decree a partition as between the plaintiffs on the one hand and Kedarnath on the other.'
55. In : AIR1938Mad102 , the contest was between the children of one Sreenivasa and Gopala, the former being the adopted son and the latter the posthumous natural-horn son of one Manavala lyengar. Sreenivasa and Gopala continued as members of the joint family and Sreenivasa added considerable properties to the family estate. In a partition between Sreenivasa and Gopala, the properties were divided in equal halves although as an adopted son Sreenivasa would have been entitled only to one-fourth of what Gopala would get. The arrangement was not questioned during the life time of Gopala. After his death, his children started a suit attacking the additional allotment made in favour of Sreenivasa. Both the learned Judges who took part in the decision of that case, viz., Leach, C. J. and Varadachariar, J., upheld the partition arrangement but on different grounds.
The learned Chief Justice, though he rejected the argument of partition being in the nature of afamily anangement, was prepared to support the partition on the ground that Gopala had by registered deed in effect conveyed his share in the family property to Sreenivasa in consequence of the services rendered by the latter, and what was left was sufficient to meet the legitimate share of Sreenivasa's sons.
Varadachariar, J., however, preferred to rest his decision on another ground. After expressing the view that partition as a partition cannot be held to be binding on Sreenivasa's branch and. also that in the course of a partition it may be open to one coparcener to relinquish his share to another coparcener individually for no pecuniary consideration, he states -
'there is another class of cases in which, though the father's transaction is not valid in law and did not distinguish his own share from that of his son, the law will split the transaction and on grounds of equity hold the father's transferee entitled to stand in his transferor's shoes and claim the share which he could have got if a partition between the transferor and his son had taken place at the date of the transfer. That this principle of equity may be invoked in connection with transactions in the nature of a partition was recognised by the Judicial Committee in ILR 40 Cal 966 (PC).'
and then his Lordship proceeds to extract thesentence from ILR 40 Cal 966 (PC) which we have already extracted above.
56. With great respect to the learned Judges who took part in the three decisions cited above, we have found it difficult to discern any particular principle of Hindu Law to support the legality of the allotment of a Jyeshtabhagam by a private treaty when the same is not enforceable in a Court of law. There is a streak of illogicality in the proposition that the Court, which will not enforce a certain act in the first instance, will readily confirm that very act if done out of Court. Two principles on which Mr. Krishnamurthy has sought to support the allotment are not principles of Hindu Law. One of them is that an arrangement entered into and acted upon should not be disturbed. This principle may apply to the immediate parties to the arrangement. The next step in the argument of Mr. Krishnamurthy viz., the acts of a father in the course of a partition should be held to be binding on the sons invokes the principles of Hindu Law. If so, only such acts of the father can be held to be binding on the sons as the Hindu Law itself declares to be so binding. Those would be cases where the partition has been done in accordance with the principles of Hindu Law, viz., in accordance with the shares indicated by the law itself. Alternatively, it will have to be supported on the basis that the father's act has been one of being party to a bona fide compromise of a disputed claim.
The other principle on which he relies, though' it at first sight appears to be a principle of Hindu Law settled by the Courts, is, in our opinion, quite different from the principles so settled. That is the principle which confers upon an alienee of the father's share an equity to stand in the shoes of the father to work out his rights by way of a general partition, of the family properties. Such an equity, according to the decisions of Courts, is available only in the case of an alienation for consideration. It is settled principle of Hindu Law that a gift or other disposition of family property without consideration is totally void and conveys no title, nor even any equity in favour of the donee,
57. At the same time, we are not prepared to say that an allotment bona fide made in the course of a partition by common consent of the coparceners is open to attack unless the shares are absolutely equal or strictly in accordance with those settled by the law. Although the Hindu Law declares the extent of the shares allottable to the several coparceners taking part in the partition, it does not totally prohibit the parties from coming to a different arrangement which, according to them, is just and equitable in the circumstances of the family at the time of the partition. It is well to remember that a partition of family property under the Hindu Law is not a mere division or distribution of properties or a mere enforcement of what may be strictly described as legal rights.
The nature of the rights in respect of joint family property, its management and its enjoyment by the several members of the family are such that it cannot possibly be equated to situations appropriate to the English Law ideas of joint tenancy 01 tenancy in common; nor is the position of joint family manager one completely assimilated to English Law ideas of trusteeship, agency or mere managership. The joint family manager exercises rights which are conferred upon him directly by the law itself. He is not bound to maintain accounts or render accounts to the members of the family as if he is an agent or trustee. So long as the property remains undivided, no member can insist upon the allotment to him of an aliquot share of the income arising out of the joint family property. It is open to the manager to spend more upon one member than upon another according to the needs and exigencies of the situation. It is also possible that by virtue of his occupation, profession or for other reasons, one of the members may not be in a position to participate in the income of the joint family at all. Likewise, with reference to branches, one branch having a larger number of children may enjoy a larger portion of the joint family income than another branch containing a smaller number of children. Certain of the children of the family may have larger amounts spent on their education than certain others.
The sustenance or assistance, which different members of the family may stand in need of from the property of the family, will also vary with the capacities, needs and avocations of different members of the family. It is obvious therefore that for a just and equitable partition of family properties among its branches or members, all equities arising out of all these and similar considerations will have to be taken into account. Further, the valuation of properties for purposes of partition must necessarily be based upon common agreement of the coparceners taking part in the partition. Except in the case of actual cash, valuation of every other item of property can only be in the nature of an estimate.
58. The ultimate basis for determining justice or fairness of a partition is the common consent of the coparceners taking part in it. So long as there is no fraud, unfair dealing or over-reaching by one member as against another, the Hindu Law requires that a bona fide partition come to on the basis of the common consent of coparceners must be respected and is irrevokable.
59. It is equally well established that because partition can be claimed by a declaration of an intention to part, the existence of minor members of the family is no impediment to the exercise of that right. The law considers that their interests are safe in the hands of their respective fathers. The father who, upon partition of the family into branches, becomes the manager of each branch, is invested with reference to the partition with such powers as are similar to the powers of an ordinary manager of the family. Because the law requires and expects that every partition should be come to with absolute fairness and honest dealings as between members and on that basis considers the partition to be irrevokable, minors who, by virtue of their minority, could not or did not take direct part in the partition, are permitted by law to re-open the partition on proof that the partition has been unfair and unjust so far as they are concerned.
60. We cannot accept the argument suggested by Mr. Lakshminaranappa that in regard to ten acres of land in addition to his share: allotted to the first defendant, he should be considered as an absolute stranger to the family. He cannot, in our opinion, rely upon the observations of their Lordships of the Judicial Committee in ILR 40 Cat 966 (PC) for this purpose. Jainarayan in that case could claim membership to the family only on the basis of his alleged adoption and if that basis is removed, there can be no doubt that he would be an absolute stranger to the family. No, such contention is possible in the case of a person actually born in the family. He acquires by his very birth a right in the properties of the family. He cannot possibly be described as an absolute stranger to the family.
61. It is no doubt true that the law places upon a manager the duty of managing, conserving and improving the joint family property. It is equally true that from the point of view of the law of contracts, the performance of a legal duty is not a consideration for a contract. The ideas of the law of contracts however cannot, for the reasons already stated by us, be applied directly or completely to a partition under the Hindu Law. It is, already stated, an adjustment of not merely rights but also equities and other considerations, which contribute to the fairness and justness of a partition. In this view, we cannot accept the suggestion -that every excess over and above what maybe described as the legitimate share of a coparcener must necessarily be treated on a par with a gift or disposition without consideration. The partition as a whole will have to be considered as an arrangement which the coparceners taking part in it have freely agreed to be a just and fair one in the circumstances of their family. So long as there is no proof of any fraud, unfair dealing or over-reaching, we must hold that the free and willing agreement or common consent of the coparceners taking part in the partition is proof of the partition having been just and fair and not unequal or unfair, and we must apply the principle of Hindu Law that a just and fair partition is irrevokable.
62. In the case now before us, every attack made by the plaintiffs against the partition has failed. All Courts have rejected their case that the first defendant has been guilty of fraud, coercion, undue influence or misrepresentation in the matter of partition. All Courts have held that thedivision has been fair and equitable in the circumstances of the family. No member of the family who has taken part in the partition has attacked it. Every member, other than the second defendant, supports it even now. The evidence of the second defendant in the matter has been rejected by the two Courts. In the face of all these findings, it is, in our opinion, unnecessary and positively unjust to import the idea of unfairness orunjust enrichment in respect of the additional allotment of ten acres of land to the first defendant. On the contrary, we should uphold an arrangement honestly come to by the common consent of all the coparceners taking part in the partition.
63. As we have held against the plaintiffs-appellants on the merits of their contentions pressed before us, it is unnecessary to go into other points of law raised by Mr. Krishnamurthy, some of them in the nature of preliminary objections to the maintainability of the suit itself, and some directed to limit or define the grant of relief, if any, which the plaintiffs may be held to be entitled to.
64. The Second Appeal therefore fails and is dismissed. The appellants will pay the costs of respondents I (a), I (b) and I (c) -- one set. The other respondents and the appellants will bear their own costs.