1. The facts out of witch this appeal has arisen are as follows:
2. The plaintiff Bhagwati Pershad together with his half brothers Jokhu and Lachman and his uncles Umrao and Ram Nath and the widow of his deceased uncle Nandan constituted a join Hindu family. The family owned a share in M. Dobaria Buzurg.
3. The defendant 1st party Bhagwati Pershad No. 2, minor, etc., were also co-sharers and so also were the defendants 3rd party.
4. These three groups of co-sharers cultivated their separate sir lands. The defendants 2nd party are the plaintiff's half brothers and uncles and aunt.
5. The first set of defendants applied to the Collector under the Land Revenue Act, for partition of their share into a separate mahal.
6. The plaintiff was then a minor and as the names of all the members of the family were recorded in the khewat, his name was also recorded therein under the guardianship of his half-brother Lachman. There was no objection to the partition nor is it denied even now that the parties to the partition were not the owners in possession of their recorded shares.
7. In the wajib-ul-arz, there was recorded the express wish of the then co-sharers that at the time of partition, if it occurred in the future, the various co-sharers should be maintained in possession of the various lands which they thus held. This is also in accordance with the provisions of the Land Revenue Act and it is a rule regularly followed in all partitions unless it is not possible to divide the mahal fairly and justly between the co-sharers, in which case the rule has perforce to be broken. Provision is made for this in the Act. In the partition proceeding there was an entry to the effect. That the rule was to be followed.
8. But apparently the defendants 1st party and the plaintiff's brothers and uncles came to an agreement out of Court, threw their sir lands into the hotchpotch and the whole mahal was divided into shares. Fraud, collusion and dishonesty were alleged by the plaintiff in the present suit, against both his own relations and the first set of defendants, but he has utterly failed to prove these allegations and the Courts below have held against him on this point and it is not now put forward. It may, therefore, be taken for granted that the partition was justly and fairly carried out, and it was completed and sanctioned by the Collector on 30th September 1903. The plaintiff, at that time though a minor, was not far from his majority, for he instituted the present suit on 27th May 1910 as being major and of full age. He attained his majority in fact on 25th November 1908. (Vide his plaint.).
9. In the course of the partition, many plots of land which he and his family cultivated as sir, were placed in the mahal of the first defendants.
10. In the course of the partition case, the Revenue Court omitted to make any formal appointment of a guardian ad litem for the present plaintiff.
11. The application for partition was made on 19th February 1908.
12. On 2nd April, a petition was filed by the plaintiff's brothers and uncles to the effect that they had no objection. It was not signed by Lalman but by Jokhu on his behalf and the plaintiff's name was omitted.
13. On 2nd July 1908, the agreement mentioned above was written and it was filed on 3rd July 1908, and with it a mukhtarnama signed with Lachman's name. Plaintiff's name was entered in this application (or agreement).
14. Jokhu again appears to have signed for Lachman.
15. On the same day, Jokhu filed an application that the plaintiff was a co-sharer and his share should be entered in Lachman's patti. His name was then entered in all papers from which it had been omitted. After the partition lots had been drawn up, the family apparently concluded that it was a mistake not to retain their sir plots in their own shares. Accordingly, Umrao and Ramnath the two uncles, and Jokhu filed a petition of objection on 31st August 1908. This was disallowed.
16. Thereupon, Lachman and others appealed to the Commissioner and this was also, disallowed. The partition was completed.
17. The present suit was brought by the plaintiff alleging,
(1) fraud and dishonesty on the part of his own brothers and uncles with intent to ruin his interests;
(2) that though Lachman was nominated as a guardian ad litem, the Court did not formally appoint him;
(3) that he was unfit to act as guardian and not entitled to the post as the minor's mother was alive;
(4) that he did not, as a matter of fact, look after the minor's interests;
(5) that the Revenue Court did not grant any sanction to the agreement in regard to the mode of partition of the lands and that the said partition had been detrimental to the minor's interests.
18. On these allegations, he asked for a declaration, that the partition was unlawful and void and that defendants 1st party had no right or share in the 5-annas 4-pies share of the family and those plots of land which had been the sir and khudkasht of plaintiff's family and which had been allotted to them, (the defendants). In the alternative, he asked to be put into possession of those specific plots. The Court of first instance held that the plaintiff was entitled to maintain the suit in respect only to his own share and granted a declaration that the partition was not binding on him and that the defendants 1st party were not entitled to the possession of the plots (of sir and khudkasht) in dispute belonging to the plaintiff's share. It was further declared that the decree did not affect the rights of the defendants 1st party regarding so much of the lands in dispute as appertained to the share of the defendant 2nd party.
19. This decree clearly was one which if it were to have any effect would really upset the whole partition. It did not even make the plaintiff restore to the other party those lands which he received in lieu of his sir and khudkasht plots in dispute.
20. On appeal, the District Judge dismissed the suit in toto.
21. He was of opinion that the managing members of the joint family were parties to the partition and as there was no fraud for collusion proved, all members of the family were bound by it and could not go behind it and that the present suit was one brought at their instigation to get behind the partition and to attain the object which they failed to attain in the Revenue Court by their objections and appeal.
22. The plaintiff appeals. In the beginning, we have to point out:
(1) That no fraud has been established.
(2) That it has nowhere been shown that the partition has been made to the detriment of the plaintiff or that he has not received his fair share of the parent mahal.
(3) That his objection to it is directed not to a question of proprietary title but merely to the mode in which the lands have been distributed.
(4) That the Revenue Court is not in any way subordinate to the Civil Court in respect to the Code of distribution of the land. The suit must fail.
23. First v, Section 233 Clause (h) of the Land Revenue Act clearly states that no person shall institute any suit or other proceeding in the Civil Court with respect to the partition of mahals except as provided in Sections 111 and 112 of the Act. The present suit does not fall under either of these two latter sections. Of course, a person, who was no party, to a partition proceeding in the Revenue Court could hardly be held to be bound by such a partition but the Civil Court, while giving him relief in such a case, could not go behind the partition and re distribute the land. It would have to take the new mahals as they were and give the plaintiff adequate relief. The plaintiff's case is, that by reason of the omission of the Revenue Court to formally appoint a guardian, he was really no party to the partition and that even it this formal defect be not fatal to the partition, his brother Lachman was unfit for the post and did not look after his interests and ought not to have been appointed in the presence of the plaintiff's mother,
24. But whatever might otherwise have been the result of the Revenue Court's irregularity, there is in the present case a circumstance which is fatal to the plaintiff's case. His family was a joint family, i.e., one legal entirety and it was duly represented by the adult male members. The whole body of adult members, was made a party to the proceeding. Their interest and the minor's interests were one and the same. There was no fraud and nothing has been put before the Court to show that the interests of the family or the minor have in any way suffered.
25. There has, therefore, been a partition fairly carried out between the family on one side and the other defendants on the other. The minor was duly represented either by Lachman or the managing member or members of the family. In regard to Lachman the plaintiff in his evidence stated Lachman, was master and did all my business after my father's death.' We are, therefore, of opinion that even though no guardian was formally appointed for the plaintiff in the Revenue Court, he was duly represented and a partition fairly and honestly obtained against the managing members of the family is binding on him.
26. We would note here that we allowed the plaintiff an opportunity of taking the matter of the partition on review to the Board of Revenue, the highest Court of Appeal and revision on the Revenue side so that any injustice might, if it exists, be set right. The Board has rejected his application and nothing has been shown to us which goes to prove that the partition was other than just and equitable.
27. In the circumstances, therefore, we hold that the suit was properly dismissed. We dismiss the appeal with costs including fees on the higher scale.