G.C. Das, J.
1. These two appeals by defendants 2 and 3 were heard together and they are governed by this common judgment.
2. The plaintiff filed a suit, T. S. No. 1112/52, for partition of 12 Bharanams of land which he purchased from one Anta Misra and his brothers by a registered sale-deed, Ext. 1, on April 24, 1951. The disputed lands according to the plaintiffs were purchased by him under three transactions. First of all, Raghunath Purohit, the brother of Lingaraj Purohit, who are the sons of one Mahadeb Purohit sold five Bharanams of land to Maheshwar Misra, the father of Ananta Misra by a registered sale deed (Ex. 17), dated June 26, 1922. Lingaraj had a son by the first wife named Basudeb who is defendant No. 1. By his second wife he had two sons Ganesh and Jagannath who are defendants 2 and 3.
Thereafter Basudeb (defendant 1), sold three Bharanams of land on his own behalf as well as on behalf of the defendants 2 and 3 to Ananta Misra by another sale deed (Ex. 18) dated June 22, 1925. Ananta Misra by way of a Jeravoti leasa (Ex. 4(c)) dated November 23, 1929, took four Bharanams of land from the Zamindar of Dharakote. Thus Ananta Misra and his brothers came to possess 12 bharanams of land which they sold to the plaintiff as stated above. Plaintiffs* further case was that the Raja of Dharakote made a gift of ten Bharanams of land by a deed of gift (Ex. 1) dated September 20, 1899, in the name of Lingaraj; out of which Raghunath, his younger brother, sold his half share (five Bharanams) to Maheswar Misra. Accordingly, the plaintiff filed the suit for partition of these 12 Bharanams of land.
3. Defendant No. 1 Basudeb only filed a written statement supporting the case of defendants 2 and 3, but did not contest the suit. He merely added that he executed the sale deed under fraud and misrepresentation. The defence of defendants 2 and 3 in essence was that the entire land of 10 Bharanams was granted by the Zamindar of Dharakote under Ex. L to Lingaraj which became his personal property. His younger brother, Raghunath had no right to sell five Bharanams out of it to the father of Anant Misra. Their further defence was that after the death of Lingaraj, Basu-deo never acted as their guardian since their mother was living. Basudev had no rights whatsoever to transfer the. lands in question on their behalf. They claimed to be in possession of the entire extent of land and denied the possession of the plaintiff or his predecessor-in-title.
4. The learned Munsif decreed the plaintiff's suit to the extent of 8 Bharanams and dismissed his suit for the four Bharanams which Ananta Misra got by way of a lease under Ex. 4(c). He eventually came to the conclusion that the gift of land in connection with the death of Madan Mihan Singh Deo's father was made in, favour of Lingaraj. Notwithstanding the gift in favour of Lingaraj, the gift being made in favour of the family priest, Raghunath acquired equal interest therein. He further held that Basudev validly and for legal necessity executed the sale deed, Ex. 18, and the defendants 2 and 3 were bound by it, since the money was required for the discharge of debt incurred by Lingaraj under the mortgage deed (Ex. 20). With regard to the four Bhara-nams of land under Ex. 4(c) his finding was that a part of the land was in possession of the family of Mahadeb acquired under the deed of gift (Ex. L) and as such Ananta Misra had acquired no right over the same. Lastly, he came to the conclusion that the plaintiff and his vendors were in possession of 8 bharanams acquired under the sale deeds Exs. 17 and 18.
5. Against this judgment of the learned Mun-sif two appeals were filed. Plaintiff filed an appeal being T. A. No. 33/13 of 1956. regarding four bharanams of land in respect of which the suit stood dismissed. Second Appeal No, 271 of 1958 is against the judgment in Title Appeal No. 33/13 of 1956 --Defendants 2 and 3 filed a separate appeal being Title Appeal No. 34/14 of 1956. challenging the decree in respect of the eight bharanams of the disputed land decreed in favour ol the plaintiff. Second appeal No. 272 of 1958 is against the judgment in Title Appeal No. 34/14 of 1956, The learned Subordinate Judge who heard both the appeals dismissed the appeal of the defendants and decreed that of the plaintiff by one common judgment. It is against this judgment that the present two second appeals are filed.
6. Three points were raised by Mr. M. S. Rao, on behalf of the appellant before this Court; (1) whether Raghunath had any saleable interest in the land granted under Ex. L to Lingaraj Purohit. (2) If Basudev was at all a major on June 22, 1925, when he sold three Bharanams of land to Ananta Misra for self and as guardian of defendants 2 and 3, and whether there was any legal necessity for the same, and (3) whether the four Bharanams of land under Ex. 4tc) were included within the boundaries given in Ex. L. With regard to the first point, whether Raghunath had any saleable interest in the land granted under Ex. L to Lingaraj, Mr. Rao contended that this gift was to Lingaraj Purohit by name and as such it was Ms personal property. Raghunath could not have derived any title therein by virtue of the grant. His further contention was that the entire land was recorded in the names of defendants 2 and 3.
It may be remembered here that there was a partition between defendants 1, 2 and 3 by a partition deed (Ex. U) dated 15-4-1939 by which defendants 2 and 3 took 11 Bharanams evidently after deducting three Bharanams sold by Basudev on 22-6-25 : For this purpose Mr. Rao sought to rely uoon two cases recorded in Mt. Mahadei Kunwar v. Mt. Bahu Rani, 50 Ind Gas 180 : (AIR 1919 dudh 154) and Hanso Pathak v. Harmandil Pa-thak, 151 Ind Cas 11 : (AIR 1934 All 851). The first case was a decision of the Oudh Judicial Commissioner's Court and the second was a case decided by the Allahabad High Court In the first case, 50 Ind Ca' 180 : (AIR 1919 Oudh 154), the ludioial Commissioners held that where a grant is made in the name of a person who is the head of a joint Hindu family, there is no presumption that the grant is made to him in a representative capacity, i.e., that it is a grant to the whole family. In the latter case, 151 Ind Cas 11 : (AIR 1934 All 851), the Allahabad High Court was of the view that the income received by service as a priest must be treated purely as the personal property of the Pundit concerned and not as the property of the joint family. True it is that, these two cases are to the effect that if the grant is made to the Purohit even as the head of the family, it would be treated as his personal property and not as the joint family property. But the true test has been laid down by the Privy Council in the case of Kedarnath v. Ratan Singh, 37 Ind App 161, wherein their Lordships held that the intention of the donor must be gathered from the deed itself and if the conduct of the donee and the other mem-bers of the family shows that they treated it as joint family property, then the property under the grant would be held aa the joint family property.
Mayne in his Hindu Law, 11th Edn., in para 290, while dealing with the grants made by the Government observed : Estates conferred by Government in the exercise of their sovereign power become the self-acquired property of the donee, whether such gifts are absolutely new grants or only the restoration to one member of the family of property previously held by another but confiscated, unless some contrary intention appears from the grant or the conduct of the donee and the other members of his family shows that they treated it as joint family property. This being the position in law one has to carefully look into the intention of the donor, and then find out how the property was dealt with in the hands of the different members of the family. It is fairly clear from Ex. L that this land was promised to be given at the time of the Sudhi Ceremony of the late father of Madan Mohan Singh Deo, the then Raja of Dharakote.
The deed further recites : 'That since a regular deed of gift could not be granted in the past, it is now being granted to you, Lingaraj Purohit'. The evidence is that the father of Madan Mohan Singh Deo died during his minority in 1884. At that time Mahadeb, the father of Lingaraj and Raghunath was alive. The estate was under the Court of Wards during the minority of Madan Mohao Singh Deo. Consequently no deed could . be executed at the time of the Sudhi ceremony of the father of Madan Mohan. By the time he was not able to execute a deed as he was a minor. Thus after Madan Mohan got back the estate he executed the gift deed In 1899 in favour of Lingaraj when Raghunath admittedly was a minor. Accordingly, though the deed was in the name of Lingaraj, yet in essence it was a gift to the family of the Raj'Purohit
Thereafter, it is to be seen how the property had been treated by the members of the family. Mr. Rao contended that Lingaraj alone mortgaged the entire 10 bharanams of land to Maheswar by a mortgage deed dated 27-5-1902 (Ex. M-1). This loan was repaid on 23-5-1905 (Ex. M-2). In another deed of mortgage by Lingaraj, the same property was mortgaged to Maheswar (Ex. N-1 dated 22-2-1908), and the dues under the mortgage were paid by Lingaraj and the endorsements were in the hands of Maheswar, Exs, N-2 and N-3. Further, in the year 1908 a Muchallika was executed by one Kalu Behera in favour of Lingaraj in respect of the entire 10 bharanams of land (Ex. Q-2). This deed was scribed by Raghunath himself, Lingaraj had paid the water rates in respect of the entire 10 bharanams of land and the water rate receipts were filed by the defendants, Exs. W to W-28. None of the payments was made by Raghunath.
In view of my earlier discussion that the lands under Ex. L were given during the Sudhi ceremony of Madan Mohan's father and that it was intended for the joint family consisting of Lingaraj and Raghunath, Lingaraj being the head of the family and Raghunath being a minor, he had been executing these several mortgages all by himself and for the entire quantity of land. There is no positive evidence as to the age of Raghunath in the year 1908. But from Ex. R the mortgage deed dated 6-9-1915 executed by Raghunath Purohit in favour of his brother Lingaraj Purohit, it is evident that by that date there had been a separation between Lingaraj and Raghunath and Raghunath had mortgaged his half share in the ancestral house. The trial Court found that although Ex. L was a gift to Lingaraj alone it was accepted to have been made to the joint family. The lower appellate Court also found that though the grant was in the name of Lingaraj it was in effect in favour of the joint family and the joint family had treated it to be the lands belonging to the family. It is argued that at the time, of the execution of Ex. Q-2, Raghunath was a teen-aged and could not have understood the implication of the documents, that is, the Muchallika in favour of Lin-garaj who was the head of the family.
Thus, the acts of Lingaraj do not militate against the joint family character of the property when it is found that in the year 1915 he himself had taken mortgage of the half share in the ancestral house from Raghunath, and Raghunath had sold his half share of the landed property out of the lands in Ex. L to Maheswar. Defendant 1 Basudev is an attestor to this deed. If Raghunath had no share in the property and he sold the disputed five Bharanams of land in the year 1922 to the knowledge of defendant 1, Lingaraj by that time being dead, it was Open to the defendants to file a suit for setting aside this alienation. Even until late no such suit was filed by the sons of Lingaraj including defendants 2 and 3, the present appellants before this Court. Defendant No. 1 and the mother of defendants 2 and S though alive were not examined in this case. It they were examined, or if any one of them was examined the true state of affairs would have been revealed. The Court of appeal below has rightly held :
'non-examination, in the circumstane.es, would warrant an adverse inference against the defers-dant's claim.'
By Ex. 18, three years after the execution of Ex. ,17, Basudev alienated three Bharanams of land for himself and as guardian of defendants 2 and 8. From the recitals in Ext. 18, it appears clear that the family had accepted the gift to be the joint family property. Defendants 2 and 3 after attaining majority had neither challenged Ex. 17 as I have stated earlier nor have filed a suit to set aside the alienation under Ex. 18. It is only when the partition suit was brought by the plaintiff that they have come forward with their present story Thus, taking all the circumstances into consideration it must be held that Raghunath had a saleable interest in the lands granted by the Raja of Dharakote to Lingaraj under Ex. L.
7. The next point argued was that if Basudev was major on 22-6-1925 when he executed the sale deed in favour of Ananta Misra for self and as guardian of defendants 2 and 3 (Ex. 18), and whether it was for legal necessity. It was contended by Mr. Rao that Basudev was a minor on that date and he relied upon Ex. T, a certificate granted by the Bihar and Orissa Sanscrit Association to Basudev in which his date of birth was entered as 1-1-1909. Both the Courts below had not relied upon this document. Nowhere in the written statement a plea was taken that Basudev was a minor on the date of execution of Ex. 18, It is only at the trial stage that Ex. T was introduced and both the Courts below have discarded the same. I do not feel inclined to differ from the finding arrived at by both the Courts below in this respect.
8. With regard to the legal necessity money was required to pay up a mortgage debt of Lingaraj, the father of the present appellants. Lingaraj admittedly executed a mortgage deed in favour of one Bhima Behera. The mortgage debt was paid from out of the sale money under Ex. 18, which is evident from Ex. 20-a, the endorsement on the back of Ex. 20. It is well settled that a prior mortgage debt is an antecedent debt and the sons had a pious obligation to pay up the debts of their father. The evidence being that the money was required for repayment of the mortgage debt and in fact the mortgage debt was paid off from out of the money received as consideration under Ex. 18, the question of legal necessity really does not arise.
These defendants, however, could have challenged this alienation on these very grounds by means of a suit, but they did nothing. Further, in 1939, under Ex. 28, it is admitted by defendant 2 that 8 Bharanams of land alienated under Exs. 17 and 18 were in possession of the plaintiffs vendor and the plaintiff thereafter. Thus, there is no manner of doubt that Ex. 18 was executed by Basudev for self and as guardian of de-fendlants 2 and 3 in favour of Ananta Misra who along with his brothers had sold the same to the plaintiff and the plaintiff had derived a valid title to the same by his purchase and it is binding on defendants 2 and 3.
9. Coming now to the third transaction regarding the Jeraifi lease for four Bharanams of land under Ex. 4(c) dated 23-11-29, Mr. Rao contended that in view of Ex. L there was no land left in the hands of the zamindar to be granted by way of a lease to Ananta Misra who was then, his private Secretary. Ex. 4-c is neither stamped nor registered under which 0.77 cents were leased out to Atlanta Misra. The lease was in a printed form in Oriya. Mr. Rao argued that the boundary given in Ex. L is a fixed boundary. Ex. 4-c. does not give any boundary, but it only mentions the survey No. 1464(1)(2).
Thus, Mr. Rao's argument was that when there is a dispute as to the difference between the boundary and the area the boundary must prevail. For this purpose he relies upon certain decisions of the Patna High Court. In the case of Ritlal Mahato v. A. J. Shillingford, 57 Ind Gas 2 :(AIR 1920 Pat 644), Sultan Ahmad, J., was of the opinion that where there is a conflict between the area given in a Kabuliat and the boundary which is firm and definite the boundaries must prevail, but if the boundaries are uncertain the intention should be taken to decide the specified quantity of land within those boundaries. Later in the case of Raghunandan Thakur v. Kishundeo Narain, 7 Pat LT 134 : (AIR 1926 Pat 257), Kulwant Sahay, J., took the view that where a land conveyed is described by boundaries as well as by areas, and If there is difference between the boundaries and the area, it is settled law that the land actually comprised within the boundaries will be treated to have been conveyed.
A Division Bench of the Patna High Court in the case of Jyoti Prasad Singh v. Rajendra Nara-yan Singh, 162 Ind Cas 838 : (AIR 1936 Pat 287), however, was of opinion that if there is discrepancy between the designation of the property in the body of the grant and its description by boundaries, the designation of the property must prevail. Subsequently in the case of Equitable Coal Co., Ltd. v. Amrita Nath Mitter, 193 Ind Cas 737, corresponding to AIR 1941 Pat 472, Rolland, J., who was a party to the decision in 162 Ind Cas 838 : (AIR 1936 Pat 287), after considering the case in 7 Pat LT 134 : (AIR 1926 Pat 257), held that the proposition that where the area goes against the boundaries the boundaries should prevail cannot be accepted as a universal proposition.
The question is as to what had been demised upon the true construction of a lease or grant. What the Court has to see is what are the operative provisions in the document and what was actually granted by those operative provisions rather than the description so attached to the document. Relying on this decision Mr. Das Gupta contended that it is necessary that the operative portion of the document ought to be looked into. The law as has been laid down by Rolland, J., in 193. Ind Cas 737 : (AIR 1941 Pat 472), appears to be more plausible and thus one has to look into the operative portion rather than the descriptive portion in construing the effect of a document Ex. L gave the boundary and stated the land to be not more than 1.92 acres within the said boundaries. Mr. Das Gupta contended that the Zamindar. of Dharakote was conscious in 1899 that the area could be more than 1.92 acnes. By the time Ex. 4(c) was executed, survey had been made and exact area has been measured and delineated. Mr. Das Gupta conceded that if the area would not have been the basis of the grant the bouadary would have prevailed. The lease was granted in the year 1929.
It is admitted in Ex. 28 that the plaintiff was in possession of the disputed land. In spite of the order of the Revenue Divisional Officer (Ex. 27) no steps were taken by the defendants. Neither Basudev nor defendants 2 and 3 had challenged this lease at any point of time until the present suit was filed. On a fair reading of Ex. L, it appears that the Raja had given a gift of not more than 1.92 acres within a fixed boundary. Mr. Rao contended that this 1.92 acres was all the land that were available within the boundary given thereunder. What really the document says is that not more than 1.92 acres within the fixed boundary is being given.
In view of the conduct of the defendants in not challenging the lease and in view of the admitted fact that at least by 1939 the plaintiff was in possession of the land, it cannot now be held that there was no land left outside Ex. L to Be given lease of to Ananta Misra. It may be made clear here that defendant 2 had filed an application before the Revenue Divisional Officer, Russelkonda, on 31-7-39, against Ananta Misra and others (vide Ex. 28). The Revenue Divisional Officer by his order dated 19-9-39, Ex. 27, directed : 'The petitioner may file a regular complaint in a proper Court of law if so advised'. Nothing seems to have been done since that date either by defendant 2 alone or jointly with defendants 1 and 3. Accordingly I have no hesitation in holding that there was land available for purposes of the lease as under Ex. 4(c), and the plaintiff derived valid title to the same. Thus, the plaintiff's suit for partition of 12 Bhara-nams of land must succeed.
10. The learned Subordinate Judge had passed certain orders with regard to the accretions. Mr. Das Gupta did not support that portion of the judgment seriously. The learned Subordinate Judge while dealing with this aspect of the case observed :
'The rest, if available on the spot will be divided between the plaintiff and the defendants to the ratio of 237 : 40, that being due to the proportionate accretion and no encroachment from other neighbouring lands. To this effect the decree is to be modified, may. be for no substantial purpose.' It is nobody's case that there had been any accretion to the lands in dispute. Accordingly, the observations and the directions of the learned Subordinate Judge in respect of the accretions are uncalled for and must be set aside.
In the result, subject to the above modi fication, the judgment of the Court of appeal below is confirmed and both the appeals are dis missed with costs.