1. The plaintiffs sue for a declaration that; they are entitled to the properties in the plaint A and B schedules and the value of the schedule properties. There was a dispute likely to lead to a breach of the peace, with reference to these properties, between the plaintiffs and the defendants and the matter was taken up by the Magistrate under Section 145 of the Code of Criminal Procedure. The Magistrate's order, which was read to me, shows that, finding himself unable to say which party was in possession of the properties, he directed the properties to be attached under Section 146, Criminal Procedure Code, and placed them in the possession of a Receiver, pending the decision of the Civil Court, in favour of one or other of the parties. It is as a result of that order that this suit has been brought by the plaintiffs for an adjudication, as stated above, that they are the persons entitled to the properties.
2. It is objected in Second Appeal in limine that the suit as brought; is not maintainable, that plaintiffs ought to have sued for possession of the properties as well, and that they are not entitled to ask for a mere declaration, under Section 42 of the Specific Relief Act. On the authorities I do not think that this contention can be supported.
3. The Magistrate, by his order, has placed the properties in the possession of the Receiver and that Receiver must be taken to be in possession, on behalf of persons properly entitled to the properties.
4. If the plaintiffs can establish their title, then the possession of the Receiver would be on their behalf and they need not seek any further relief for recovering possession from the Receiver. This has been so laid down in the authority cited by the learned Subordinate Judge : The Administrator-General of Bengal v. Bhagwan Chandra Ray Chaudry 15 C.W.N. 758. This position is also supported by the ruling in Rajah of Venkatagiri v. Isakapalli Subbiah (1903) 26 Mad. 410 where the possession of a receiver was held to be the possession of the rightful party. Again, in Vedanayaya Mudaliar v. Vedammal (1904) 27 Mad. 59 it was ruled, in circumstances similar to this that, where a receiver is in possession, it was not necessary to sue for consequential relief, by way of recovery of possession, but that it was sufficient to sue for a mare declaration.
5. The learned Vakil for the appellant, has tried to raise a special point in this case, on the ground that at the time when the Magistrate ordered the attachment of the properties, the properties were not in the possession of the plaintiffs, but apparently lying fallow and uncultivated, the possession of the properties being in dispute. That can make no difference at all on the point of law.
6. As the receiver was appointed by the Magistrate to take possession of the properties, ha must therefore be taken to be in possession, and if his possession is that of the rightful owner, then the plaintiffs have only to establish that they are the rightful owners and no further reliefs need be claimed by them. The first objection therefore fails and must be rejected.
7. One point taken on the merits is that, in this case, the alleged partition between the deceased brother o the plaintiffs and defendants 1 to 3 was not a valid partition at all, because at the time of the partition, all the co-parceners were minors. The alleged partition is a partition, where the brothers of these various minors ware acting as their guardians. As the learned District Judge says, there is no rule that minors could not divide their properties among themselves, when they are properly represented by guardians in the transaction. No case has been brought to my notice, where all the co-parceners were minors : but it has been laid down that the fact that soma of the co-parceners are minors will not prevent a partition from being valid, if no advantage is taken of their minority to their loss : see the Privy Council decision in Balkishen Dan v. Ram Narain Sahu (1903) 30 Cal. 738. At page 752 their Lordships observe:
The question upon which their lordships have felt most difficult is whether the document can be considered as binding upon the co-parceners, who wore minors at the date of it. But they think that in these proceedings they must treat it as binding upon them. There is no doubt that a valid agreement for partition may be made, during the minority of one or more of the co-parceners. That seems to follow from the admitted right of one co-parcener to claim a partition; and if an agreement for partition could not be made binding on minors, a partition could hardly ever take place. No doubt if the partition was unfair or prejudicial to the minor's interests, he might on attaining his majority, by proper proceedings, set it aside, so far as regards himself.
8. Now, in this case, the minors all became majors long previously, about 8 or 10 years ago. No steps have bean taken by any of them to set aside the partition at all, and as pointed out by the learned District Judge, they have acted upon the partition and treated it as good, by dealing with their respective shares, as each liked, by executing sale-deeds in respect of them: sea Exhibits E and F(1). Exhibit E is a sale dead executed by the first defendant himself, who is the sole appellant before me. The learned Judge has also considered, whether there was anything to show, that the division was unusual or unfair, and has held that there is nothing to show it. la fact, it is not alleged that the partition has been either unusual or unfair, and the fact that the parties are standing by it, and acquiescing in it, is a strong circumstance, against the partition being in any way unfair.
9. In these circumstances, I am not prepared to differ from the learned District Judge, who held that this partition was a good partition It is true that the partition is not evidenced by any document, but the evidence in the case is sufficient to support the finding that there was a partition between Varadarajulu Naidu and defendants 1 to 3, before the former's death.
10. That being so, his will, Exhibit F, under which his mother Kanniammal got the property, is a valid will, and, if she was entitled to the properties, plaintiffs must now be held to be entitled to those properties, after her death. It was no doubt stated in the written statement that the will was not true in fact when the defendants took objection to its validity as well, but, in the issues, I find no question raised as to the factum of the will. There is nothing before ma to show that the defendants insisted upon their plea in their written statement that the will was not genuine being tried. Issues are framed not only with reference to written statements, but also with reference to statements made at the time, when they are framed. The fact that the will is a registered will may very likely, as stated by the learned vakil for the respondent, have led to the defendants giving up their plea as to the factum of the will. There is no substance in the plea now urged that I should raise an issue for the first time as to the factum of the will and call for a finding thereon. If there was anything wrong with the issues framed, it was for the defendants then and there to have applied to the trial Court to amend the issues and put them right; nothing of that sort was done.
11. On the evidence, I must hold that the decision of the District Judge is correct. The Second Appeal fails and is dismissed with costs.