1. This appeal is mainly on two points. The first is, whether certain partition proceedings in a Revenue Court were vitiated by the omission to issue fresh proclamation of the proceedings, and the second is whether even if those proceedings were regular the plaintiff-appellant is prevented from obtaining a relief under the provisions of Section 233 of Local Act III of 1901.The facts in respect of the first point are these: A certain Wahaj-ud-din applied to the revenue authorities for partition of his share in a village in the Allahabad district. He put in this application in 1909. In the course of the proceedings two brothers, Meera Bakhsh and Aulia Bakhsh, who are recorded co-sharers of a two pie share took certain objections to the partition which involved a question of proprietary title. These objections were decided against them and that decision became final, These objections were decided against them before March 1916. In March 1916 Wahaj-ud-din withdrew bis application for partition and if this withdrawal bad been accepted the whole of the partition proceedings would ordinarily have come to an end and there would have been no partition. The withdrawal was accepted as far as Wahaj-ud-din was concerned but almost directly another co-sharer Abdul Jalil who bad been a party to the partition proceedings demanded that the partition should be allowed to go on and his request was acceded to. The partition was accordingly completed and finally sanctioned on the 10th of October 1917. The first point which we have to decide is, whether the acceptance of Wahaj-ud-din's withdrawal auto matically brought proceedings to an end and necessitated the commencement of new proceedings with the issue of fresh notices and a complete cancellation of the previous proceedings, I am of opinion that, on the merits, there was no cessation of the proceedings and that the order of the presiding officer on Abdul Jalil's petition amounted in effect to a cancellation of the sanction to withdraw. The appeal, therefore, cannot succeed upon the first point.
2. The second point is more important and more difficulty. The present plaintiff Karim Bakhsh is a younger brother of Aulia Bakhsh and Meera Bakhsh. He was a posthumous child being born after the death of his father Maula Bakhsh. Maula Bakhsh owned two-pie share in mauza Seondha. At his death this was recorded jointly in the names of his two existing sons Aulia Bakhsh and Meera Bakhsh. I am not in a position to say whether the entry was made before or after the birth of Karim Bakhsh. Karim Bakhsh was born about 1888 and had attained his majority before the partition proceedings commenced. His name was not recorded as that of a co-sharer at the time that the partition proceedings commenced and it was not so recorded till the 16th of August 1915 when Aulia Baksh died. Then the name of the plaintiff-appellant was recorded in place of Aulia Baksh in the revenue papers but he was not brought on as a party to the partition proceedings and he was never a party to the partition proceedings. The question which he wishes to re-open in the suit out of which this appeal arises is the very question of proprietary title which was decided against his brothers Aulia Bakhsh and Meera Bakhsh sometime in 1911. His case is that as he was not a party to the partition proceedings Section 233 K has no application and that under the law as it is understood in this Court he has a perfect right to raise the matter now. Section 233 K can ordinarily only operate as against those recorded co-sharers who have been parties to the partition proceedings The Courts below repelled the plaintiff-appellant's plea on the ground that, although his name did not appear, he was sufficiently represented by his order brothers. I doubt the soundness of this proposition. I do not see bow a Muhammadan tanant-in common can be held to be represented by another Muhammadan tenant in-com mon merely because their interests are identical. But I would agree with the Courts below in refusing the plaintiff-appellant any relief for a different reason. We have a clear and binding finding as to the facts and on these facts it appears that the plaintiff-appellant had attained majority before the partition proceedings ever commenced and that he deliberately premitted his brothers Aulia Bakhsh and Meera Bakhsh to remain recorded as co-sharers in respect of the property which really belonged to him and that he permitted them to represent his interests in that property and to assert claims of proprietary title on their own behalf which were really assertions of proprietary title on his behalf. I do not consider that this representation was a good representation in law but I do not consider the plaintiff-appellant's conduct in refusing to disclose his title and refraining from having his name recorded as a co-sharer and thus giving notice to the parties and the presiding officer as to his position, estops him from seeking any relief in the present proceedings. I consider that this is a clear case of estoppel by conduct and for that reason I would dismiss tkis appeal.
3. I quite agree with my learned brother that the appeal should be dismissed, but I wish to add a few words. I would rest the decree of this Court more on the ground of representation than on the ground of estoppel. I quite agree that the principle of estoppel applies to the facts of the case but I should think that, in the peculiar circumstances of this case, the question of representation does come in although the appellant is a Muhammadan. The rule of estoppel by substantial representation is based on broad principles. The rule applies with great force in the case of a Hindu family simply because of the constitution of it, but in other cases only if the facts are sufficient for its support. The object of this rule is this. The Court is to dispense justice, and the rules of procedure should not be allowed to defeat the ends of justice. It is for this reason that in cases where it is found that a minor was substantially represented in a previous litigation he is not allowed to have set aside the decree, on the simple ground of want of representation. It has been held that he must show that he has been substantially prejudiced by the decree.
4. In the circumstances of this case, the appellant was living with his brothers. The brothers were carrying on all the business of the family. In fact, it was they who brought him up. It has been found, as a matter of fact, that he was all along aware of all the litigations that were going on in the family. It has been found in the case that, although he was adult at the date when the partition commenced, he never asked for being recorded as a co-sharer with his brothers. It was only on the death of his elder brother Aulia Bakhsh that his name was recorded. Even then his name was recorded not under his independent right but as an heir to Aulia Bakhsh. If, therefore, his brothers raised the same contention about the partition of the abadi of Yusufganj as the appellant is now raising and if that contention was found against his brothers, is it conducive to the interests of justice that Karim Bakhsh should be allowed to re-open the question which was settled against his brothers and for all practical purposes against him? I think that he should not be allowed to re-open the partition. I also would dismiss this appeal.
By the Court:
5. The order of the Court is that the appeal is dismissed with costs which will include fees on the higher scale.