1. The plaintiff, the 1st and 2nd defendants are the sons of one Mahalinga Sivan. The father and sons entered into a partition of their properties in the year 1911: and signed a deed in that behalf. When it was sought to register it, the first defendant refused to consent to the registration on the ground that some of the schedules to the deed were inserted without his' knowledge. Thereupon, the father and the plaintiff applied for registration under Section 35 of the Registration Act, and the document was registered. The father died subsequently, having subsequent to the registration made a Will of the properties allotted to him in the partition deed in favour of the 1st defendant.
2. In the present suit the plaintiff alleges that the deed of partition is void and of no effect, that the Will of the father is inoperative, and that he is entitled to his share on the footing that the family is undivided.
3. The Subordinate Judge held that the parties became divided in status by the deed of partition. There are two appeals before us; one by the plaintiff contesting the finding as to division and claiming a share in certain moveables, and the other by the 1st defendant disputing the conclusion of the Subordinate Judge that certain properties were not his self-acquisitions.
4. The appeal of the plaintiff was argued first, as the points raised went to the root of the case. Mr. G.S. Rajendra Aiyar in an exhaustive argument contended that the partition deed, Exhibit B, did not effect a severance of status. His chief contention was that the document quad the immoveable properly was not receivable in evidence. In answer to the suggestion that the document contained a declaration of intention by his client and the father that they resolved to get themselves separated form the 1st defendant, the learned Vakil argued that as the document was intended to express a declaration consented to by all the parties, it was ineffective to evidence a unilateral declaration; and he cited Swami Ghetto v. Vestige Cheat 12 M.L.J. 17. in support of his position. As pointed out in Ululate Palatial Nether Menon v. Mullapui Opalan Nair 10 Ind. Cas. 763 : (195) M.W.N. 586 there is no irrebut-table presumption that a document intended to be executed by more than one person should not be construed as evidencing a contract by some only of the interded executants who have signed the deed. In the present case, despite the disclaimer by the 1st defendant, the plaintiff and his father insisted on giving effect to the arrangement to which they were parties. We are unable to hold, therefore, that the document cannot be looked into to ascertain the intention of the executants. In this view it is unnecessary to consider how far the decisions of this Court in Pothi Naicken v. Ziagama Naicker 32 Ind. Cas 486: 19 M.L.T. 50 : (196) 1 M.W.N. 79 and Ayyakutli Munkondan v. Periasami Koundan 31 Ind. Cas. 615 : 30 M.L.J. 404 are reconcilable with the pronouncement of the Judicial Committee in Girja Bai v. Sadashio Dhun-diraj 12 M.L.J. 17. In the latter case, the Privy Council seems to suggest that although an unregistered deed of partition may not serve to operate as a conveyance of the shares allotted, it would be evidence of a severance of stains. The case before ns is slronger than he one before the Judicial Committee, where the document was registered at the instance of two of the executants. Under Section 35 of the Registration Act, such registration is sufficient to affect the interest of the consenting parties. In the Registration Act of 1877, there was a prohibition in general terms against the registration of a document where the executants denied execution. It was contended, under that Act, that if any one of the executants denied execution the document should not be registered at all. In Muhammad Ewaz v. Brij Lal 4 I.A. 166 : 1 Ind. Dec. 320 to which our attention was drawn by the learned Vakil for the respondent, the Privy Council referred to Section 24 of the Act as indicating that the document may be registered at different times, and held that the words in the Registration Act should be read distributively and that so far as the parties asking for registration are concerned, they are entitled to it although others may not consent to it. Since this decision was passed, the Legislature amended Section 35 by inserting the words 'as to the person so denying appearing or dead.' Thus Legislative sanction has been given to the pronouncement in Muhammad Ewaz v. Brij Lal 166 I.A. 465 : 3 Sar P.C.J. 735; 1 Ind. Dec. 320.
5. Mr. Ramachandra Aiyar put forward an ingenious contention that although the Registering Officer was bound to register the deed, it was a nullity quoad the property comprised in it was concerned. His argument was that as the origin of the document was in consent, its partial registration was not capable of carrying out any division between the parties. We are unable to agree with him. If we accept his contention, we must hold that the Legislature introduced a provision which is not only ineffective, but may easily prove mischievous. Muhammad Ewaz v. Brij Lal 4 I.A. 166 : 3 Sar P.C.J. 735 : 1 Ind. Dec. 320 itself points out that the document is receivable in evidence under Section 49 of the Registration Act.
6. This conclusion would have been enough to dispose of the appeal, had the case not been complicated by the specific bequest made by the father to the 1st defendant. The father regarded himself as divided from his sons in respect of the specific properties allotted to him in the schedule and willed them away in favour of the 1st defendant. Although Mr. Ramachandra Aiyar did not seriously contest the suggestion that this would may be taken as operating upon the share of the father and not on the specific properties, we are not prepared, as at present advised, to assent to the proposition that a testamentary disposition of specific properties may be utilised for proving the bequest of the share to be allotted to the deceased, in case it is found that the testator is not entitled to the specific properties, bui only to a share as a tenant-in-common. The analogy of a mortgage of specific properties attaching to the share of a co-parcener ascertained in partition was referred to, but we do not like to rest the present case upon that analogy. Therefore, although we have come to the conclusion that the father and sons baoam tenants-in-common from the elate of the registration of Exhibit B, we think that unless there was an allotment of shares, the plaintiff will be entitled to have his share given to him by a division by metes and bounds. But, we think, that step has become (unnecessary, in view of the consideration which we shall presently set out.
7. It is settled law now that a father can effect a partition between himself and his sons with or without their consent. Kandasami v. Doraisami Ayyar 5 Ind. Jur. 352 : 1 Ind. Dec. 491 which enunciates this rule of Hindu Law, has been accepted in Murugayya v. Falaniyandi 36 Ind. Cas. 205. and in Aiyavier v. Subramania Iyer 40 Ind. Cas. 205. What happened in the present cage amounts to the effecting of a division by the father between himself and his sons by the exercise of the powers Conferred on him. No doubt, originally the partition was intended to be by consent, but when the father found the at one of his son? was resalcitrant, he insisted on the partition being given effect to and asked the Registrar to register it. This is tantamount to imposing his will on his sons with a view to effect a division of the ancestral properties. Mr. Ramachandra Aiyar contended that as the father did not expressly declare that he was exercising his prerogative, it would be reading a great deal too much into his conduct, if we hold that the partition was brought about by his superior will against the protest of the 1st defendant. We see no force in this contention. The Judicial Committee pointed out in Bijraj Nopani v. Sreemutty Pura Sundari Dasee 24 Ind. Cas. 296: (1914) M.W.N. 679: 12 A.L.J. 1185 that where an act is done which is not wholly valid upon the capacity expressly named, but is justifi-able upon a latent capacity which was not specifically referred to the transaction would be upheld as having been brought about in the latter capacity. Applying that principle, we must hold that when the father notwithstanding the dem of the 1st defendant insisted on the registration of the partition deed, he exercised the power given to him by the Hindu Law to effect a partition against the will of his sons.
8. In this view, the properties willed away by the father rightly vested in the 1st defendant, and the plaintiff can be compelled to accept the properties allotted to him. The fact that he was a consenting party to the registration makes his position worse. We, therefore, hold that the plaintiff is not entitled to claim a division by metes and bounds.
9. We now proceed to deal With the appeals in so far as they deal with specific items.
10. As regards ground 13 we see no reason to differ from the Subordinate Judge; there is a clause in the partition deed that properties bona fide emitted should not be claimed by the parties thereto. The plaintiff has alleged no ground of surprise or fraud-consequently he is 'not entitled to the property covered by this ground of appeal. Ground No. 15 refers to the omission of the 1st defendant to collect the full amount of a certain debt. It is not argued that the 1st defendant anted maliciously. He seems to have acted in the best interest of the family, and we think the Subordinate Judge is right in refusing to give plaintiff any decree against the 1st defendant in this respect. As regards ground No. 23 it is to be noticed that the claim was made in the plaint (see Schedule E to the plaint). A sum of Rs. 1,200 was set apart to be spent by the father in taking proceedings to collect outstandings. The plaintiff is entitled to any sum that may remain unspent out of the said Rs. 1,200. There must be an enquiry by the Subordinate Judge as to how much of the Rs. 1,200 was utilised by the father for taking proceedings against debtors. As regards item 7 of Schedule D-2 it is conceded by the learned Vakil for the respondent that there must be a declaration that the amount of this decree is recoverable solely by the plaintiff. As regards item 2 of Schedule D-2 the case of the plaintiff is that that sum was collected by the father; there is the evidence of P. Ws. Nos. 1 and 2 to support the plaintiff. The 1st defendant in his deposition does not deny that item 2 was collected by the father; it has been pointed out that the amount was collected during the lifetime of the father and that no demand was made by the plaintiff for his share from the father. Under these circumstances we are not prepared to say that the money, even if collected by the father, has been traced to the possession of the 1st defendant. As regards moveables the Subordinate Judge is clearly wrong in shutting out evidence. His view that the recital that the moveables were already divided is a term of the document is clearly erroneous. It is unfortunate that we should be obliged to remand the case for further enquiry on that ground; but we are unable to resist the contention of the appellant that he is entitled to show that notwithstanding the recital in the document the moveables belonging to the family were not wholly divided. We must, therefore, ask the Subordinate Judge to return a finding onfresh evidence whether any moveables belonging to the family were left undivided. If so, what their value is and who is in possession of them.
11. As regards the memorandum of objection by the 2nd defendant, although he may not strictly be entitled to a decree in this suit, having regard to the fact that this litigation should not be protracted any further, we think it necessary that there should be a finding as regards item No. 37 of Schedule 2. Issue No. 10 claims in the alternative either the particular item or its value if it has been realised before. We must, therefore, ask for a finding upon that issue specifically from the Subordinate Judge on the evidence on record.
12. Now we turn to the appeal of the 1st defendant. We think the Subordinate Judge has given very good reasons for disallowing the items claimed by the 1st defendant in this appeal. The most material property is contained in Schedule A-3. In the partition deed it is stated that a sum of about Rs. 15,000 and odd was due to the family under a decree, that the father should, if he collects the amount, pay the share of the sons or if he purchases the mortgaged property, he should divide that property among the sons. The father, instead of himself purchasing the mortgaged properties, had them conveyed in the name of the 1st defendant. The 1st defendant says that he is only liable to give the plaintiff a share of the decree amount, and that the plaintiff is not entitled to any share of the properties purchased by him. His argument was twofold. In the first place the father did not purchase but he purchased. Consequently the condition in the partition deed is not operative against him. In the second place, the learned Vakil for the appellant contended that an option was reserved to the father to purchase the property and if he did not exercise the option and allowed the 1st defendant to purchase, the plaintiff can have no cause; of action against the latter. We feel no hesitation in holding that the father connived at the 1st defendant becoming the purchaser. He had made a Will of his properties in favour of the'1st defendant and was greatly attached to him. In our opinion the conduct, of the father amounts to a fraud upon his powers. Where an authority is given to a particular individual to be exercised for the benefit of a number of persons and the owner of the authority fraudulently exercises it in favour of one of them, and that one is aware of the full significance of the power, he should not be entitled to take advantage of the benefit secured by fraud to which he had cemented. In Farwell on Powers it is stated that even where the person in whose favour the fraud was committed was unaware of the fraud, he must not be allowed to take advantage of it. The case is stronger where the party benefiting by the fraud is fully aware of the motive operating upon the donee of the power. See 23 Halbnry, page 16, Sections 111-113, and Farwell on Powers, pages 77 et seq. We think the Subordinate Judge is right in holding that the plaintiff is entitled to a share of the A-3 Schedule properties purchased by the 1st defendant. We also agree with the Subordinate Judge in holding that it has not been proved that anything more than Rs. 3,750 was paid in addition to the amount due under the mortgage decree. He has given excellent reasons for his conclusion and we see no reason for differing from him.
13. We also agree with the Subordinate Judge in his finding upon Issue No. 10-B. The evidence let in on behalf of the 1st defendant that the difference between the amount due from the Thambiran and the sum of Rs. 3,000 and odd due from Visvanathier was reserved by the father for adjusting inequalities in the partition is absolutely worthless. We must, therefore, uphold the decree of the Subordinate Judge in this behalf. The decree of the Subordinate Judge requires a slight modification. The decree should declare that the plaintiff is entitled' to proceed against the assets of the deceased father Mahalinga Sivan in the hands of defendants Nos. 1 and 3 instead of making the 1st defendant alone liable for the amount and the other sums decreed against him. We also think that no good grounds have been shown for awarding interest against the 1st defendant at the rate of 12 per cent. There is no issue as to whether any interest was due at all.
14. We think on the whole that interest should run from June 1913 at the rate of six per cent, on the sums awarded to the plaintiff against the 1st defendant. Subject to this modification we dismiss Appeal No. 212 with costs. The findings in Appeal No. 277 should be submitted within 2 months from this date and 7 days will be allowed for filing objections.
15. In compliance with the order dated the 13th August 1917 contained in the judgment herein, the Subordinate Judge of Kumbakonam submitted the following.
16. Finding.--In this case I have been asked by the High Court to receive evidence and submit a finding on the following issue:
Whether any moveables belonging to the family were left undivided, and if so, what their value is and who is in possession of-them
17. I have also been asked to submit a finding upon the evidence on record, on, the ifollowing issue: 'Was item 37 of the Schedule D due at the time of division or has it been realised even before?'
18. As regards the 2nd issue I have stated in paragraph 26 of my judgment that it was for plaintiff to prove that item No. 37 of Schedule D was an outstanding debt on the date of Exhibit B, and that upon the, evidence given by him I was not at all satisfied that the amount was outstanding and that plaintiff and 2nd defendant were entitled to a share in it. The Vakil for the plaintiff stated that he was not interested in this item and that the matter was one between defendants Nos. 1 and 2. The 2nd defendant who appeared in person stated that he accepted the finding already recorded by me and referred to above, and the Vakil for the 1st defendant also stated that the rinding already recorded was acceptable to him.
19. So far as the question of division of moveables goes
20. For the reasons above given and for the reasons already given by me in paragraphs 12, 15 and 37 of my judgment I find this issue against plaintiff and in the negative.
21. Although there is no reference in the order, the judgment upon which the order is based wants me to hold an enquiry as to how much of Rs. 1,200, which was set apart for the purpose of being spent by the father for taking proceedings against debtors, was spent.' The Vakil for the 1st defendant contended that I was to be guided by the order and not by the judgment, and the Vakil for the plaintiff stated that he wanted time to get the order amended in terms of the judgment. The Vakil for the 1st defendant then stated that he had no objection to have the question determined when the final decree was passed, in case the High Court wanted this to be done. To this course the Vakil for the plaintiff agreed.
22. The Appeal No. 277 of 1916 and the memorandum of objections filed by the 2nd respondent, coming on for final hearing after the return of the finding of the lower Court upon the issue referred to by this Court for trial, the Court delivered the following.
23. Judgment.--The finding of the Sub-ordinate Judge as regards moveables is amply supported by the evidence referred to by him. We are no reason to differ from him. We also agree with his suggestion that the right of the parties to the whole or such portion of the Rs. 1,200 not utilised by the father should be adjusted in passing the final decree; subject to this reservation and to the modification as regards item 7 of Schedule D-2 contained in the judgment, the appeal is dismissed with costs of the 1st respondent.
24. We see no reason to doubt the correctness of the Subordinate Judge's statement in the finding that the parties agreed to accept his previous finding regarding item 37 of Schedule D. We dismiss the memorandum of objections in the above appeal with the costs of the 1st respondent.