1. The appellant, a minor, brought the suit out of which this appeal arises, to reopen a prior partition effected between his father's branch and three other branches of the family and he also prayed for a declaration that the compromise decree for partition in O.S. No. 66 of 1938 on the file of the Subordinate Judge's Court, Chittoor, was not binding on him as he was not impleaded in that suit. The appellant was born on the 7th Sebruary, 1940. The family to which he belongs consisted originally of two sons of one Chcwdi Reddi (one of these sons was the appellant's great grandfather, Sidda Reddi). The other son was Thimma Reddi, who had three sons, each of whom is now represented by his descendants. We are therefore concerned with a family consisting of four branches, that to which the plaintiff belongs being entitled under the ordinary Hindu Law, to a half share in all the properties. It was, however, alleged that the properties of the family had been largely increased by the efforts of the other branches and that consequently they had been recognised as having a claim to more than their ordinary shares in the property.
2. The first agreement with which we are concerned is Ex. D-1 dated 12th September, 1929, under which the representatives of the four branches agreed to divide the properties in four equal shares. The actual writer of this agreement was the appellant's uncle who is the first defendant in the suit. On 19th September, 1932, there was a reference to arbitration executed by the representatives of the four branches for a division on the basis of the agreement, Ex. D-1. But it does not appear that this arbitration was effective. In 1933 there was a suit filed by certain agnates of the family, who claimed a half share in the family lands. In, this suit, the appellant's father and uncle filed a written statement in which they recited that they had received Rs. 8,500 from the common funds and had agreed to take one-fourth share in the lost of the properties. That suit was settled and we are not now concerned with the claim of those agnates. At the end of 1934, the four branches met together and divided all the moveables of the family and also the houses. There was no actual division by metes and bounds of the lands, except, possibly, of certain items about which there is varying evidence. But it seems to have been established,-and has, in fact, been conceded by Mr. D. Narasaraju, Advocate for the appellant--that from 1935 onwards, the income of all the lands was enjoyed in four equal shares by the four branches and each branch paid one-fourth of the kist of the lands.
3. On 25th May, 1936, the representatives of the four branches executed an agreement, Ex. D-3, which recites the previous division of the moveables and the failure to divide the lands and refers to arbitration the division of all the lands into four equal shares, the parties agreeing to abide by the decision. In 1938, the plaintiff's father and uncle filed O.S. No. 66 of 1938 against the members of the other three branches, in which they claimed that their branch was entitled to the sole right in certain Reddi inam lands and to a half share in the rest of the lands of the family. This suit was contested and, in the end, there was an arbitration, as a result of which the plaintiff's branch was given the sole right in certain lands and the rest of the lands were to be divided in four equal shares. The date of this award was 11th June, 1939. The suit itself was actually compromised on a slightly different basis, the appellant's branch being given two more items of property not included in the award. This compromise decree was passed on 9th March, 1940, just over a month after the birth of the appellant who was not impleaded in the suit.
4. The position, therefore, is that at the time of the appellant's birth all the branches had bound themselves by an agreement to divide the rest of the properties in four equal shares, the appellant's branch having been given cash consideration, to induce them to accept this arrangement. The actual division of the properties had reached the stage of a complete allotment of the moveables and houses and the separate enjoyment of the income of the lands and separate payment of the expenses connected therewith. The appellant's father and uncle were trying to get more than they had agreed to accept and just after the appellant's birth they succeeded in getting some six acres of land in addition to the one-fourth share in the rest of the lands. To the extent to which this compromise decree modified the previous arrangement it is undoubtedly to the benefit of the appellant's branch.
5. It is contended by Mr. D. Narasaraju, advocate for the appellant, that at the time of the appellant's birth, so far as the lands were concerned, there was a mere executory contract to divide at a future date and no transfer of title in the lands such as would bar a claim by the minor to an equitable re-division of those lands. He has quoted before us the decision in Ponnambala Pillai v. Sundarappier (1897) 7 M.L.J. 340 : I.L.R. 20 Mad. 354, which recognised that a son born after his father had executed an agreement to sell the family property and before the completion of the sale could challenge a subsequent transfer on the ground that the agreement was not binding on himself in the absence of any necessity. He has also cited the decision in Kishan Lal v. Lachmi Chand : AIR1937All456 , where it is pointed out that there can be no partition of immoveable properties without either a registered deed or a transfer of possession; and he has called in aid the rule which enables an after-born son to challenge even a completed partition effected by his father in case no share is allotted to the father. This latter rule is based on special considerations and on actual texts. It has no logical foundation and cannot be the starting point for further extensions.
6. The position seems to be perfectly clear. A partition once completed cannot be challenged by an after-born son except to the extent just referred to. A partition is completed when the title in the different shares has passed to the persons who have divided. So far as immoveable properties are concerned, the title passes either by the execution of a registered instrument or by an agreement to divide coupled with a transfer of possession. If there is an agreement to divide in certain shares and those shares without any division by metes and bounds come into the separate enjoyment of the various sharers, there is, in our opinion, such a transfer of possession as would make each of the sharers completely entitled to the undivided share which is in his enjoyment. That is what seems to have happened in the present case with reference to the lands. The parties agreed to hold these lands in four equal shares and in pursuance of that agreement each of the sharers entered into the enjoyment of the income of one-fourth of the lands and became separately liable for the expenses of their shares; that is to say, the undivided share was. transferred to the possession of each of the branches. The subsequent modification of this division by the compromise decree was only to the extent of giving to the appellant's branch a greater share than was previously enjoyed. In such circumstances it seems to us that the appellant cannot challenge an arrangement which was made effective before his birth and was only subsequently modified to his own advantage. In this view, we dismiss the appeal with costs of respondents 5 to 20 (one set).