Achhru Ram, J.
1. The,following pedigree-table will illustrate the relationship between the parties to the suit which ;has given rise to this appeal,
SETH PEM BAJ_____________________________|___________________________________| | | |Seth Lakhmi Chand Seth Ghanshara Das Seth Bikari Lal Seth Mohan Lai| || Adopted son Seth| Mahadev Parshad| (defendant 2)| _____________|_________________________| | || Seth Benarsi Das Seth Chiranji Lai| (defendant 3) (plaintiff)_________________________________________________________________| | |Rai Sahib Seth Ram Seth Murlidbar Seth Mahadev Parshad.Kanwar (defendant 1) : married toMt. Muni Bai(defendant 7)___________________________|________________________| |Seth Hanuman Parshad Seth Hardwari Mai(defendant 4) (defendant 5)|Gauri Shankar (defendant 6)Seth Benarsi Das defendant 3 is alleged to have been adopted by R.S. Seth Ram Kanwar defendant 1 although the latter denies this. fact.
2. The family consisting of the descendants of Seth Pem Raj possessed considerable movable and immovable property and were doing extensive business. On 30-8-1903 an arrangement was arrived at between Seth Ghansham Das and his adopted son Seth Mahadev Parshad as one party and Seth Murli Dhar and R.S. Seth Ram Kanwar, the remaining two sons of Lakhmi Chand, as the second party (the lines of Seth Mohan Lal and Seth Bikari Lal having already become extinct) to the effect that in any partition of the joint assets Ghansham Das and his adopted son Seth Mahadev Parshad would be entitled to 221/2 per cent. of the total assets and the remaining 771/2 per cent. would go to Seth Murli Dhar and R.S. Seth Ram Kanwar.
3. On 29-8-1937 Seth Mahadev Parshad brought a suit for partition of the joint family property, movable and immovable and the joint business carried on under different names and styles and contrary to the arrangement mentioned above, he claimed a one-half share in the family assets. He impleaded his two sons Seth Benarsi Das and Beth Chiranji Lal as defendants 3 and 7. He alleged that Seth Benarsi Das had been adopted by R.S. Seth Ram Kanwar. The other defendants to the suit were Seth Murli Dhar, Seth Hanuman Parshad, Seth Hardwari Mal and Seth Gauri Shankar. The suit was resisted mainly by R.S. Seth Ram Kanwar who had been alleged by the plaintiff to be the managing member of the family and accordingly in possession of all the accounts. On 23-11-1938 the parties to the suit entered into a compromise according to which the plaintiff was to get a 221/2 per cent. share in the immovable property which formed the subject-matter of the suit excepting two properties which were daclared to be waqf. It was, however, agreed that the surplus income left after the defrayal of the expenses of one of the two properties declared waqf was to be shared by the parties in the same proportion in which they were sharing the rest of the property. The remaining 771/2 shares were to go to R.S. Seth Ram Kanwar and Seth Murli Dhar and their descendants. On the basis of this compromise a consent preliminary decree was passed on 23-11-1938. Certain commissioners were appointed in order to effect partition by metes and bounds. On 2-4-1939 parties other than Seth Chiranji Lal and SetH Benarsi Das who were defendants 7 and 3 respectively entered into a compromise as to the terms in which the final decree was to be passed. The deed of compromise is Ex. P-18 and will be found printed at pages 79 to 82 of the paper-book. It is not necessary to give the details of the arrangement arrived at by the parties to the compromise. On the compromise coming up before the Court for consideration on 6-4-1939 Seth Chiranji Lal refused to accept the same and prayed that either his name might be struck off from the list of the defendants so that the proceedings of the suit might not bind him or he might be transposed as a plaintiff and his share might be separated from the rest of the parties. On the plaintiff's counsel stating that Seth Chiranji Lal and Seth Benarsi Das were really not necessary parties to the suit and that he was prepared to give up the said defendants the Court proceeded to record his statement to the above effect and made an order striking off the names of Seth Chiranji Lal and Seth Benarsi Das from the list of the defendants. The other parties to the suit having compromised a final decree was ordered to be drawn up in the terms of the compromise. This decree is dated 6-4-1939. Some time after this Seth Chiranji Lal brought a suit to avoid the final partition decree mentioned above but his plaint was rejected on his failure to make tip the deficiency in the court-fee. On 28-10-1942 Seth Mahadev Parshad brought a suit against his son Seth Chiranji Lal, Balram minor, the son of Seth Chiranji Lal, his second son Benarsi Das and his wife Mt. Rattan Devi for partition of the property that had been allotted to him as a result of the final decree for partition mentioned above. It may be observed that Seth Mahadev Parshad had, in the suit which he brought against R.S. Seth Ram Kanwar etc., in 1937, claimed the full one half share which would have come to his branch of the family including his descendants but for the agreement of 1903, and in the actual partition effected got the full 221/2 per cent share to which that branch was under that agreement entitled. The object of the suit instituted by him in 1942 against his sons, grandson and wife was to have his own share in the joint family property of himself and his sons and grandson which represented the property that had been allotted to him as representing that joint family separated This suit was settled by means of a compromise on 4-5-1943. The terms of the compromise are to be found in Ex. P-16 which is printed at page 91 of the paper book. Seth Chiranji Lal when examined in Court with reference to the aforesaid compromise made the following statement.
I have heard the contents of the compromise. They are correct. A decree may be passed in accordance therewith. Bat this compromise will hare no effect as against my rights in respect of which I have brought or I may bring a suit against Seth Ram Kanwar. The Court passed a final decree for partition in the terms of the compromise.
4. On 7-8-1943, the plaintiff brought the suit out of which the present appeal has arisen in which he claimed partition of the property and the business which were at one time jointly owned by the family of Seth Ghansham Das and Seth Lakhmi Chand. He claimed an 111/4 per cent. share in the whole of the property, and in the alternative, in case Seth Benarsi Das was not held to be the adopted son of R.S. Seth Ram Kanwar, a 71/2 per cent. share in the said property. He also claimed a decree for rendition of accounts of the firm Lakhmi Chand Ram Kanwar and Lakhmi Chand Jaipuria for the period from sambat 1954 up to the date of the institution of the suit and for recovery of the amount of his share. The suit was resisted by defendants 1, 4 and 7. Defendants 2 and 3 who were the own father and brother of the plaintiff supported the claim. The learned Subordinate Judge who tried the suit has dismissed the same holding that its trial was barred by the rule of res judicata on account of the final partition decree passed in the previous suit which was brought by Seth Mahadev Parshad against the other members of the family on 29-8-1937. The plaintiff feeling aggrieved from the degree of the learned Subordinate Judge dismissing his suit has come up in appeal to this Court.
5. In arguing the appeal Mr. Amar Nath Grover, the learned Counsel for the appellant, contended that the final decree for partition in the previous suit which was based on a compromise to which the plaintiff was not a party and which was passed after the plaintiff's name had been struck off from the list of the defendants could not bind the plaintiff and could not operate as res judicata in the present suit. He urged that although it was open to Seth Mahadev Parshad to bring a suit for partition of the joint family property without impleading his son, the plaintiff, and although in case he bad brought the suit without impleading the plaintiff the decree passed in the suit brought by him would have bound the plaintiff, he having in fact impleaded the plaintiff as a defendant, having gone to trial with him as one of the defendants and having got a consent preliminary decree with him as a party could not bind him by a final decree based on a compromise, to which he refused to become a party, after giving him up and after having his name struck off from the list of the defendants. There is considerable force in this contention of the learned Counsel. In all cases in which it has been held that the manager of a joint Hindu family effectively represents all the members of that family in any litigation respecting the joint family property, and that particularly in a suit for partition of the joint family property, the head of each unit of that family represents the whole unit consisting of himself and his descendants and not himself alone, the other members of the family sought to be bound by the decree have at no stage of the proceedings been brought before the Court as parties to the litigation. I am not aware of any case and none has been brought to our notice in which a person actually impleaded as a defendant in the suit may have been held to be bound by a decree based on a compromise to which he was not a party and which he expressly refused to accept. Such a case does not appear to me to fall within the purview of Explanation 6 at all. A compromise of a suit is nothing more than an agreement between the parties to such compromise, and a compromise decree does not standi on a footing higher than such an agreement with the order of the Court superadded to it. Such a decree cannot, therefore, bind any person who is not a party to the compromise unless of course it can be held that one of the parties to the compromise had the right or the authority to bind him by means of the same. No party can be said to have either the authority or the right to bind another party by an agreement to which such party has expressly refused to agree.
6. While for the reasons indicated above I should have considerable hesitation in upholding the decision of the learned Subordinate Judge on the ground on which it is based I find that there is another difficulty in the plaintiff's way which to me appears to be wholly insuperable. After the partition decree of 1939 the plaintiff's father brought a suit against him, his son, his other brother and his mother for partition of the property which he had got as the result of the aforesaid partition. That suit, as has been pointed out above, was settled, by means of a compromise, and the plaintiff accepted a certain share out of the property which his father had got at the aforesaid partition. Having got the benefit of the decree obtained by his lather he is clearly now estopped from challenging the validity of that decree or otherwise seeking to go behind it. It is true that at the time of compromising with his father he made a reservation in favour of his right to seek Such relief as he might under the law be entitled to in respect of the original partition to which he was not a party, and it is also true that he made a similar reservation when he appeared in Court when the compromise was sought to be recorded. Any amount of reservations, however, on his part could not take away the legal effect of his having got the benefit of the original partition decree. The property that fell to the share of his father and, therefore, to the share of the joint family consisting of the said father and his sons including the plaintiff himself, having been divided with, the consent of the plaintiff has become incapable of being thrown into the hotchpotch. For obvious reasons the plaintiff cannot get any relief which may have the effect of undoing the original partition unless it is possible to restore status quo ante and to throw the whole of the property which was the subject-matter of the original suit into the hotchpotch. The plaintiff having by his own conduct made this impossible cannot now be permitted to attack the original partition of which the fruits he has shared with his father.
7. It was urged by the learned Counsel for the appellant that the contesting defendants had resisted the suit only on a plea of res judicata and not on any plea of estoppel. I, however, am not impressed by this contention of the learned Counsel. The plea of res judicata is only a plea of estoppel by judgment and if the defendant is unable to make out one species of estoppel but the circumstances disclosed on the record make out a case of another species of estoppel, I can see no reasonable ground for refusing relief to him. The question as to the legal effect of the compromise made by the plaintiff with his father in the partition suit brought by the latter is a pure question of law and I have no hesitation in holding that the mere absence of an express plea on the subject cannot debar the Court from giving effect to it.
8. It was lastly contended by the learned Counsel for the appellant that the plaintiff was in any case entitled to ask for an account of the income and expenditure of the business that had been expressly kept joint at the time of the partition of 1939 and for partition of the said business. He urged that the suit should not be thrown in its entirety but that the plaintiff should be allowed to amend his plaint by confining his claim only to an account and partition of the aforesaid business. As observed by the learned Subordinate Judge, I am of the opinion that if the plaintiff wants to claim any relief for account of partition of the business which was kept joint at the time of the partition he must seek his remedy by means of a fresh suit properly framed. The present suit being one to avoid the partition decree itself I do not think it would be either desirable or proper to allow it to be converted into a suit based on a recognition of the validity of that decree and for a relief flowing from and arising out of that decree.
9. For the reasons given above, I see no force in this appeal and would dismiss the dame. In the circumstances, however, I would make no order as to the costs of the appeal.