1. This is a plaintiff's appeal arising out of a suit for a declaration that certain Revenue Court partition proceedings were fraudulent and are not binding on the plaintiff. The facts of the case are that the plaintiff's father owned a 10 biswas out of 19-biswas share in village Bhat Kheri, and died leaving the present plaintiff as the sole surviving son who was then a minor. The other co sharer was Hoshyar Singh, the father of defendant No. 1. In 1909 Musammat Jia, the mother of the plaintiff, was appointed the certificated guardian of the plaintiff during his minority by the District Judge. In 1912 Hoshyar Singh, the co-sharer, filed an application for partition of the village in the Revenue Court. The Court, however, did not itself get the lots prepared, but acted upon two lots which were filed in the case signed by Hoshyar Singh and purporting to have the thumb-impression of Musammat Jia. The village was divided into two separate mahals, one of which was allotted to the plaintiff, Shikar Chand, exclusively and was called after liis name, and the other was allotted to Hoshyar Singh. Hoshyar Singh subsequently died and his ton Jagmandar Das sold the entire Mahal Hoshyar Singh to. Mohan Lal and others for a sum of Rs. 30,000 under a deed dated the 30th January, 1921. The plaintiff alleges that in the preparation of the lots fraud was practised by Hoshyar Singh on the plaintiff and his guardian in this way that land of better quality was allotted to Hoshyar Singh's share and that of inferior quality to the plaintiff's share, and that a grossly unequal share of the occupancy holding was put in the plaintiff's lots as well as lands yielding no produce. It is further alleged that Hoshyar Singh showed these lots to Musammat Jia and assured her that these were of equal quality and value and got the same accepted by her. The plaintiff's claim accordingly is that the partition proceedings were fraudulent and are in DO way binding on him. The suit was contested mainly by Mohan Lal and others who denied that any fraud had been practised and who pleaded that they were bona fide transferees for value and were protected.
2. The learned Subordinate Judge has dismissed the suit. On the question whether there was an unequal partition, h& has come to a clear finding that it was so and that on a rough estimate the plaintiff has suffered loss from 5 to 10 per cent, of the value of his share. He also was clearly of opinion that the defendants were bona fide transferees for value, who have acquired the property in good faith and were protected. As regards the question of fraud his finding is by no means clear and satisfactory. He began by saying that as regards fraud the plaint did not show the circumstances under which the fraud was committed, and the detail of the fraud. This is rather a surprising statement in view of the facts alleged by the plaintiff in paras. 7 and 8 of his plaint the purport of which we have recited above. He next proceeded to say that the only evidence on the point is the statement of the plaintiff's mother and that believing her statement to be true, there is no conclusive evidence of fraud as to vitiate the partition proceedings. We cannot understand how the learned Subordinate Judge could make this remark when he had himself recorded the evidence of Musammat Jia. If the whole of the evidence of Musammat Jia were to be believed, there would be no doubt that a gross fraud was practised on her and that her thumb-impression was obtained on the application on a misrepresentation and at a time when she had been assured 'that the partition had been made, and to is had been prepared'. The learned Subordinate Judge has evaded a clear finding as to whether the statement of Musammat Jia should be believed in its entirely. He has at places criticised her evidence without specifically saying that he disbelieves her. It is also curious that at the end of the judgment he wound up by saying that the plaintiff did not claim any relief against defendant No. 1, the representative of Hoshyar Singh, and that there was not sufficient material on the record to ascertain the extent of the liability of this defendant due to his father's conduct. All this suggests in a vague way that the learned Judge was inclined to believe that some fraud was practised though in his opinion that fraud was not sufficient to vitiate the partition proceedings.
3. We have, therefore, bad to examine the evidence of Musammat Jia in some detail as well as the statement of Hoshyar Singh, Mukhtar, who was appearing for Musammat Jia in the partition proceedings. This witness is different from Hoshyar Singh, co-sharer. We agree with the Court below that the partition was unfair. It is clear from a comparison of the two lots that Hoshyar Singh in his 9 biswas share got 153 bighas of non-occupancy land while the plaintiff in his 10-biswas share got only 136 bighas, 19 biswansis of non-occupancy lands; on the other hand, 114 bighas 3 biswas of occupancy lands on which enhancement of rents would be difficult, were thrown into the share of the plaintiff while Hoshyar Singh was given only 34 bighas, 9 biswas of occupancy lands in his share. It also appears that double the area of lands recently brought under cultivation were allowed to Hoshyar Singh, though the division of the old cultivated lands was equal. It is also clear that Hoshyar Singh got two pucca wells in his lot and also got a larger share of abadi land. On the other hand, the entire burial ground was thrown into the lot of the plaintiff. All these facts, no doubt, indicate the division was unfair and that the plaintiff has suffered in consequence. The learned Judge has estimated the loss of the plaintiff from 5 to 10 percent, of the value of his share, but we are unable to say from the evidence whether this is any approximate estimate or not.
4. We are also satisfied that this unequal partition was brought about by taking some advantage of the position of Musammat Jia who was a purdah nashin lady, the plaintiff then being a minor of tender years. We are also satisfied that but for the carelessness and slackness of Musammat Jia and for her not getting proper advice, she would not have assented to such a division. It also appears that she had relations like Anand Sarup, who was helping her, and there were also other relations whom she might have consulted. Apparently she did n thing of this kind. Although we believe so much of her statement, we find ourselves unable to accept her statement that any active misrepresentation was made to her and that she put so much confidence in her opponent, Hoshyar Singh, as to accept his word that the lands were absolutely equal. She admits that she observes purdah before Hoshyar Singh, and we doubt whether she could have put her thumb-impression on papers brought by Hoshyar Singh without consulting anyone else. We are, therefore, unable to find that there was any active misrepresentation made or any direct fraud practised by Hoshyar Singh on Musammat Jia. At the same time, it is almost certain that Hoshyar Singh did not disclose to Musammat Jia that the lands were unequal.
8. The position of Mohan Lal and others who are transferees from the son of Hoshyar Singh, is, however, much stronger than that of Hoshyar Singh and his heirs. We agree with the Court below that there is no evidence whatsoever on the record to Buggest that the defendants-vendees were not acting in good faith. On the other hand, the evidence of Mohan Lal proves conclusively that he inspected the revenue records and found Jagmandar Das name recorded, and found him to be in exclusive possession of the entire mahal. He has sworn that he acted throughout in good faith after having made thorough enquiries and that he has not failed to pay the full consideration. There was nothing which could have put Mohan Lal on further enquiry, and to have cast the duty on him to go behind the order of the partition Court, examine and compare the two mahals and ascertain whether they were equal or unequal. We believe that Mohan Lal and others had no knowledge or idea that any fraud had been practised, or any undue advantage taken, by Hoshyar Singh as against the plaintiff's guardian. It is also a noteworthy fact that from 1912, when the partition took place, till the year 1921, Musammat Jia herself made no protest or attempt to get the order revoked. She appears to have acquiesced in the division. It is also a significant fact that as soon as the plaintiff attained majority he executed a deed of transfer of the entire mahal in favour of his mother. The plaintiff apparently did not at that time consider that the partition was a nullity and that he was still a co-sharer entitled to a 10 biswas share in the undivided village Bhat Kheri. As a matter of fact he did not transfer any such undivided share, but transferred the whole Mahal Shikar Chand to his mother. This suggests that he himself accepted that the partition had been effected and that he was entitled to deal with the mahal allotted to him as he liked. No doubt, subsequently this deed of gift was set aside under a compromise decree, dated the 19th December, 1923, between the plaintiff and his mother, but that leaves the significance of the transfer untouched.
9. The last point for consideration that remains is whether, in view of the fact that the contesting defendants were bona fide transferees for value from Hoshyar Singh's heir, even if a fraud had been practised by Hoshyar Singh, their transfer could be affected by it. On this point we are of opinion that a distinction might very well exist between voidable and void transactions. Where property has been transferred under a voidable contract some title passes to the transferee which remains till the contract is avoided. On the other hand, in cases of void transfers no title whatsoever passes to the transferee. If a person who has taken property under a voidable contract transfers it to a stranger who purchases it for consideration and in good faith, it seems to us that such a stranger would be completely protected. We think that the law on this point has been correctly stated by Schwabe, C.J., in the case of Parthasarathy Aiyar v. Subbaroya Gramony 72 Ind. Cas. 559 : (1923) M.W.N. 763 : 45 M.L.J. 175 : A.I.R. 1924 Mad. 67 : 17 L.W. 763 when he remarked that a person who has acquired property under a voidable title can himself give a good title to that property to a bona fide purchaser or mortgagee from him, who deals for value and has no notice of the defects in the title, The same principle had been accepted by another Bench of the Madras High Court in the case of Pothane Puthan Vittil v. Adrasseri Raru Nair 72 Ind. Cas. 727 : L.W. : 46 M. 478 : 44 M.L.J. 527 : 17 L.W. 547 : 32 M.L.T. 372 : A.I.R. 1923 Mad. 558. In that cage also a transferee from a person who had acquired the property under a voidable conveyance, with intent to defraud creditors, was held to be protected if he was a bona fide, transferee. So far as that point is concerned, we entirely agree with that view. It does, however, appear that the learned Judges thought that the case of Basti Begam v. Banarsi Prasad 30 A. 297 : 5 A.L.J. 305 : A.W.N. (1908) 116 had been wrongly decided and was not supported by the authorities relied upon in the judgment. We think that the case of this Court was somewhat misunderstood and is clearly distinguishable. In that case there was a wholly fictitious mortgage without any consideration whatsoever which was executed with the intention of defeating existing creditors. The mortgage was a totally inoperative document and was never intended to be in any way effective. It was almost a waste paper and passed no title to the ostensible mortgagee. The learned Chief Justice at page 308 Page of 5 A.L.J.--[Ed.], therefore, remarked that the ostensible mortgagee had no interest in the property under the fictitious mortgage made to him and that he had nothing which he could transfer to his wife. He pointed out that the transfer of the fictitious mortgage to his wife, notwithstanding that it was made bona fide and for value and consideration, did not validate the security as against the plaintiff. The lady took the transfer subject to all defects and title of her transfer or and could not in equity set up the fictitious document against the bona fide mortgage. The case before the Allahabad High Court was, therefore, entirely different and related to a wholly fictitious document which was void and not merely voidable. This differentiation appears to have been overlooked by the learned Judges of the Madras High Court. The authorities on which they have relied are all on the point that a fraudulent grantee takes the entire estate of the fraudulent grantor and that a bona fide purchaser for value and consideration,-whether he purchases from a fraudulent grantor or a fraudulent grantee takes the entire estate even though the deed is voidable at the instance of the creditor. Under the circumstances, it is clear that it is now too late for the plaintiff to get the partition upset when the mahal allotted to Hoshyar Singh has been transferred in its entirety to Mohan Lal and others, who have acted in good faith throughout and have paid full consideration.
10. The grounds of appeal as regards the dera (collection house) and the grove have, in our opinion, no force. The Court below has found that there is no satisfactory evidence to prove that the collection house and the grove allotted to Hoshyar Singh were the same which had been specifically purchased by the plaintiff's father. Furthermore, they were the subject-matter of partition proceedings. Collection houses and groves frequently pass with the zemindari, and there can be no doubt that both the collection house and the grove were the subject-matter of allotment by the Revenue Court. Both these have been transferred to Mohan Lal and others. They would be equally protected. In a partition case even property belonging exclusively to one co-sharer may, under certain circumstances, be allotted to another and compensation paid to the owner. We are, therefore, of opinion that the contesting defendants are protected with regard to their purchases of the collection house and the grove.