1. This is an appeal by the defendant in a suit instituted by the plaintiff for partition by metes and bounds of her eight-annas share in a large number of properties which are described in the schedule to the plaint. She has also prayed for a declaration of title to eight-annas share in two touzis Nos. 2575 and 2576 which are known as the Syamagram properties and are included in item 4 of the plaint. The facts admitted are these:
2. The common ancestor was Harikishore Roy who died leaving two sons, Ramani Kishore Roy and Nalini Kishore Roy. Ramani was the eldest. His son Ranada is the defendant in the suit. Nalini Kishore Roy died on 3rd March 1902 when he had just attained majority. He left him surviving a childless widow Swarnamayee Debi who is the plaintiff. He had executed on 11th May 1901 a will by which he appointed his brother Ramani Kishore, executor. By the will, his widow Swarnamayee was given the power to adopt a son. Ramani took out probate of this will in the year 1902 shortly after the death of Nalini. In this case we need not go into the question as to whether a permission to adopt had also been given to Swarnamayee orally by her husband or not. In any event, she had the power of adoption whether by virtue of the permission given by the will or by virtue of the oral permission alleged to have been given to her by her husband. In 1908, Swarnamayee adopted the youngest son of Ramani Kishore and named him Narmada Kishore. The adopted son died unmarried in the year 1915. The position therefore is that the beneficial interest in the estate which was not admittedly disposed of by the will of Nalini Kishore belonged to Swarnamayee from the date of the death of Nalini till the adoption. After the adoption the beneficial interest vested in the adopted boy and on his death Swarnarnayee, his mother, inherited the beneficial interest from him. She has from the date of the death of her adopted son a widow's estate in the properties which may be found to be properties joint between him and Ranada. Ramani Kishore died on 9th January 1922. During his lifetime he was in possession of a half-share of the joint estate in his own right and the other half-share as executor to the estate of Nalini Kishore Roy. It appears that after the death of Ramani, differences arose between Ranada and Swarnamayee. In September or October 1924, there was a separation between the two and Swarnamayee and Ranada began separate collection of rent. There was also by this time separation in mess. It was probably in December 1924. On 7th January 1925 Swarnamayee instituted a suit for accounts against Ranada. That suit terminated in a compromise decree passed by this Court on 7th July 1931. The compromise decree is an exhibit in the case (Ex. 24, Vol. II, p. 321 of the paper-book). We will have to deal in some detail with the terms of this compromise decree and with the proceedings in execution which followed' this compromise decree in a later part of the judgment when we will be dealing with the merits of the contentions raised by the parties before us as to the plaintiff's title or share in some of the properties to which she has laid a claim to the extent of 8 annas share. The defendant raised many points in his defence. The written statement is a prolix document. The contentions of the respective parties however appear clearly from the judgment which has been delivered by the learned Subordinate Judge.
3. The first defence which raised a preliminary point was that the suit for partition by the plaintiff is not maintainable inasmuch as it was not a bona fide suit at all. The second defence was that the suit was bad for non-joinder of parties. The third defence was that certain properties were the self-acquired properties of Ramani and in some other properties the share of Ranada was more than the share of the plaintiff. The difference in the shares according to the defendant was brought about by reason of the acquisition by Ramani for his own benefit and advantage from out of his own funds of certain shares which belonged to others. We have quoted above the defences which are material for the purpose of considering the points which have been raised before us in this appeal. Those contentions are : (1) that the suit is not maintainable; (2) that mouza Koyedi which? is item 1 of the plaint belongs exclusively, to defendant 1. In any event the plaintiff is not entitled to claim more than 5 annas-share in the said property; (3) that a partition of mouza Koyedi cannot be made in. this suit as necessary parties have been left out; (4) that the plaintiff has not eight-annas share in Muktirkandi which is item 12 of the plaint; (5) that the Bhayabapa Kutchery which forms a part of item 2 of the plaint belongs exclusively to the defendant; and (6) that touzi No. 2575 belongs-exclusively to the defendant and touzi No. 2576 exclusively to the plaintiff. The plaintiff cannot have eight annas share in both those touzis on the footing that both of them are joint properties of the plaintiff and the defendant.
4. The first question is whether the suit for partition is maintainable or not. We have-already stated that the plaintiff has only a widow's estate in the properties left by her adopted son and also in those properties which were subsequently acquired by Ramani on his own behalf and on behalf of the estate of his brother Nalini Kishore. She represents the estate fully. It is only that her powers of alienation are limited. Any decree-passed in her favour or against her in a bona, fide litigation fairly fought out or fairly compromised would bind the reversioner. These principles are well established. Under the circumstances it is necessary to see whether a person having such an estate is entitled to maintain a suit for partition against her cosharer or cosharer of her late, husband. This question was considered by a Full Bench of this Court in Janoki Nath v. Mathura Nath (1883) 9 Cal. 580. The judgment of the Full Bench was delivered by Ramesh Chandra Mitter J. It was held that a Hindu widow or a transferee from a Hindu widow is entitled to maintain a suit for partition against the co-widow and her husband's cosharers. Mr. Chowdhury appearing on behalf of the: appellant has cited before us a judgment-delivered by the same learned Judge in the same volume in Mohadeay Koer v. Harak Narain (1883) 9 Cal. 244. The passage on which reliance has been placed by the appellant is on pp. 250 and 251 of the report. The learned Judge points out that the right of enforcing partition is generally a common incident in a joint undivided property. Then he observes that from that it does not follow that a Civil Court would be bound to decree partition at the instance of a Hindu widow without a special case of necessity being established for partition. The interpretation put upon this passage by Mr. Chowdhury is that a Hindu widow ought generally to be refused partition unless she establishes special cause or necessity. That may be the correct interpretation of the passage, if it betaken out of the context. If that is what Mitter J., meant by this passage, he himself has expressed himself otherwise when delivering the judgment of the Pull Bench in the case which we have noticed above. In Mohadeay Koer v. Harak Narain (1883) 9 Cal. 244 referred to above the learned Judge then points out the peculiarity of a Hindu widow's estate. He rightly pointed out that she represents the estate yet the person who would take after her would not take through her but would take as the heir of the last male owner. It is also pointed out that till her death it is not certain as to who would be the next taker. Then, he says that under those circumstances, it would be the duty of a Court of justice to see, before decreeing partition, that the interest of the presumptive heir be not affected by its decree. This passage means that having regard to the fact that a Hindu widow represents the estate, the Court should be careful to see that by the partition the interest of the presumptive reversioner may not suffer. That means that a partition is to be decreed but in making the allotment, care should be taken that the allotments are fair, for the decree made would bind the next taker who does not take through the widow but through another: man, namely the last male owner. Then the learned Judge observes that before decreeing partition, the Court should be satisfied that the claim for partition is a bona fide one arising out of such necessity as renders partition desirable between two joint owners. The force of the last-mentioned passage, in our judgment, has been affected by the decision of the aforesaid Pull Bench. We think that the law has been put correctly by a later decision of this Court in Bepin Behari v. Lal Mohun (1886) 12 Cal. 209. The passage which is at p. 212 runs thus:
That a Hindu widow has a right to partition has been established by the Full Bench decision in Janoki Nath v. Mathura Nath (1883) 9 Cal. 580 and the assignee of a Hindu widow is in the same position. All that has to be secured in favour of the reversioners is that the partition should be so carried out as not to affect their rights.
5. This is exactly what we have said as the law on the subject. Even if the observation of Mitter J., in Mohadeay Koer v. Harak Narain (1883) 9 Cal. 244 to the effect that only when the claim of the widow for partition is a bona fide one arising from such necessities as render partition desirable between the two joint owners is still good law, we do think that on the facts of this case partition is desirable. Those facts are these that the claim of the plaintiff to a large portion of the properties was denied before the institution of this suit. In 1926, she laid a claim to eight annas share of taluk No. 2575 in a rent suit instituted by the defendant against a tenant claiming 16 annas share of the rent. Her claim was resisted by the defendant who got the judgment in his favour. Since then, she is being excluded from the rents and profits of all the lands of touzi No. 2575. Her claim to eight annas share of Muktirkandi was denied as also the share which she claims in Koyedi. Those claims were denied before the suit, they were denied in this suit while it was in the trial Court and has been denied even now. That itself is a ground why she should be allowed to maintain the suit for partition. There is no love lost between the plaintiff and the defendant and the defendant is obstructing her at every stage. We accordingly overrule the first point urged before us and hold that the suit for partition by the plaintiff, although she has a widow's estate, is maintainable.
6. We now proceed to deal with the merits of the respective claims of the parties and we take up in the first instance item 1 of the plaint, namely Mouza Koyedi. The position is this : this mouza along with other mouzas formed part of the parent estate, touzi No. 4734 of the Mymensingh Collectorate, and in the said parent estate the common ancestor of Nalini Kishore and Ramani Kishore had a share. The parent estate was partitioned under the provisions of the Estates Partition Act in the year 1857. Other lands of the parent estate were divided and formed into separate allotments. Those allotments were given separate touzi numbers. Two of these touzis so created at the said partition were Nos. 6154 and 6155. These two touzis were allotted to the common ancestor of the parties. Mouza Koyedi was then covered with jungle and was uninhabited. That mouza was not partitioned by metes and bounds and allotted separately to the proprietors of the parent estate. It was kept ejmali between all the proprietors and in the butwara papers it was recorded that taluk No. 6154 had 1 anna, 13 gandas, 1 kara, 1 krant share therein and taluk No. 6155 had a similar share. The other co-proprietors who had shares in the said mouza which was left joint were the proprietors of the allotments which were numbered as touzi Nos. 4734, 6153, 6156, 6157, 6158 and 6159. (Ex. P, p. 1, Vol. 2 and the deposition of Rajendra Nath Chakrabarty, D.W. 5, Vol. 1, page 203 of the paper-book.) The plaintiff's case is that Ramani Kishore and Nalini Kishore were entitled half and half to 3 annas, 6 gandas 2 karas 2 krants share in the said mouza as a result of the allotment in the butwara proceedings of the year 1857.
7. The plaintiff's further case is that Ramani Kishore on behalf of himself and as executor to the estate of his brother Nalini Kishore ousted the remaining co-sharers who had interest in this mouza as a result of the butwara proceedings and acquired the remaining shares by adverse possession. The case of the defendant also is that the remaining co-proprietors of the said mouza who were proprietors of the aforesaid six taluks which we have mentioned above had lost their title. According to the plaintiff therefore, the plaintiff and Ranada, the defendant, are the only persons who have interest in this mouza. According to the defendant, he alone has 16'annas interest in this mouza. The defence of defendant 1 with respect to this mouza was put before the lower Court on this basis that as the lands were jungle lands and incapable of possession, the lawful title even to the 3 annas 6 gds. 2 karas and 2 krants share of the common ancestor of the parties was lost because that common ancestor did not exercise any act of possession. Neither in his written statement nor in the evidence is it alleged that the common ancestor was ousted by anybody else. On no principle of law could that extreme position be maintained and that position accordingly has not been sought to be maintained before us by Mr. Chowdhury. Mr. Chowdhury puts his argument in three compartments. He says that the plaintiff is entitled to 1 anna 13 gds. 1 kara 1 krant share in this mouza and the remaining share must be taken to belong to Ranada. 1 anna 13 gds. 1 kara 1 krant share belongs to him as lawful owner and the rest belongs to him because his father acquired for himself title by adverse possession to a good portion of the remaining share and he himself had acquired by adverse possession title to the remaining 6 annas share.
8. With regard to his contention that the plaintiff should not be given any share in excess of 1 anna 13 gds. 1 kara 1 krant he is met by a document which is conclusive against him. In the year 1910, Ramani Kishore for self and as executor to the estate of his brother Nalini Kishore sued a collecting agent of his of the name of Jamini Kishore Mallik for accounts. In para. 1 of the plaint, he made a clear admission that 10 annas of Samagram belonged in equal shares to his estate and to the estate of his brother. That is a clear statement that he prescribed against the other lawful owners both in his individual capacity and as executor to the estate of his brother. There is evidence on the record that for the purpose of acquiring title by adverse possession money had to be spent. There were the costs of reclamation and other costs which had to be incurred for the purpose of putting out the other lawful owners who had the remaining share in the land. The evidence is conclusive that Ramani had no separate funds of his own. Whatever came from the estate of his brother and of his own estate were pooled together and formed one fund and all moneys used to be spent from this common fund.
9. There remains however the question as to whether the defendant has exclusive title to the remaining 6 annas share which according to him he himself had acquired for his own benefit by adverse possession after his father's death. It is admitted that such adverse possession commenced while Ramani was alive but that it was completed after his death. That is the case of the defendant. It cannot be said on the evidence that Ramani had a different intention in possessing this 6 annas share from the intention with which he began to possess the remaining share in which he perfected title by adverse possession during his lifetime. The costs of reclamation and other costs which were necessary for the purpose of acquiring in course of time a title by adverse possession came from the same source as in the other case. The evidence however points out to the fact that even with regard to this 6 annas share it was not Ranada but Ramani who had completed title. In 1929, Ranada instituted a suit for accounts against his Gomasta, Nikhileswar Chakravarty. He claimed accounts in respect of mouza Koyedi also (item 2 in Schedule 2 of the plaint). In para. 1 of the plaint he made the statement that his father was 'in ownership and possession' of the said mehal No. 2 in Khamar right in his own right and with right acquired by adverse possession. These statements prove that it was not he but his father who had perfected the title by 12 years' adverse possession. We accordingly hold that in mouza Koyedi the plaintiff has a share which is equal to the share of the defendant. In view of the fact that it is the both sides' case that no other person has any subsisting right in this property, we do not see how the owners to the other 6 touzis mentioned at p. 203 of the deposition of the defendant's witness No. 5 are necessary parties. According to both sides, they have no subsisting interest in this property. No doubt, they are not bound by any adjudication and they would not be bound by any finding in this suit that they have lost their title. The learned Subordinate Judge has made the necessary provision by directing that mouza Koyedi ought to be treated as an independent unit and to be partitioned half and half between the plaintiff and the defendant. This is, we think, a clear direction and we uphold it. This disposes of the second and third points raised by Mr. Chowdhury.
10. With regard to Muktirkandi, it is admitted that Nalini and Ramani had small shares therein. Later on, shares were acquired by purchase from the stranger cosharers. One of such conveyances was taken in the name of the plaintiff. It is admitted that in that, both the plaintiff and Ranada had equal shares. Five other conveyances ?were, however, taken in the name of Ramani Kishore alone. They are respectively Ex. B-1, dated Pous 1312, Ex. B-2, dated Magh 1312, Ex. B, dated Ashar 1315, Ex. B-3, dated Ghait 1319 and Ex. B-4, dated Aswin 1324. They are printed in Vol. II pages 59 to 62. The question is to whom the shares so purchased in the name of Ramani belong? The best thing in such cases would be to trace the source of the purchase money. We have in this case the admitted fact that the plaintiff was joint in property, mess and worship with Ramani who was her brother-in-law. The learned Subordinate Judge has disbelieved the case of the defendant that Ramani had a separate Tahabil. Nothing has been said before us by the appellant's advocate which would entitle us to revise the finding of the learned Subordinate Judge, for which he has given very cogent reasons. It is proved that all the moneys which came from the properties which were in the possession of Ramani on his own behalf and as executor, of his brother's estate was entered into one account book and formed a common fund. In the year 1925, the plaintiff brought a suit No. 1 of 1925 for accounts against Ranada. In that suit, the ejmali account-books for the years 1309 to 1328 had been, filed. That appears from page 376 of Vol. II of the paper-book. The account suit was compromised in this Court. The compromise decree is Ex. 24 at page 321. By the: compromise, Ranada agreed to pay Rupees 10,000 to Swarnamoyee in instalments. The compromise decree further provided that the plaintiff Swarnamoyee would have the account books of odd years filed in Court, namely of the years 1309, 1311, 1313, 1315, 1317, 1319, 1321, 1323, 1325 and 1327 and the defendant Ranada would take out from Court and retain in his possession the account books of the remaining years, namely 1312, 1314, 1316, 1318, 1320, 1322, 1324, 1326 and 1328. The compromise decree was made on 17th July 1931. There was a direction that all the account books and papers would remain in Court for one year from that date and after the expiry of one year, the plaintiff and the defendant would be entitled to take out from the Court the account books falling to their respective shares. Proceedings in execution were started by Swarnamoyee for taking out the account books which were given to her by the compromise decree. These proceedings were started in July 1934. In those proceedings Ranada preferred objections and his case was that the plaintiff was not entitled to withdraw from Court all papers to which she was laying claim.
11. From these proceedings, it is quite clear that all the account books, namely, from the year 1309 to 1328 which had been filed in Court remained in Court at least up to February 1935. On 16th February 1935, the Court overruled the objection of Ranada and directed the account books of the odd years to be delivered up to the plaintiff and directed Ranada to take out of Court account books of the even years. Ranada, therefore, got back the account books of the years 1312 and 1324 which are relevant to the question which we are discussing after February 1935. The present suit for partition had already been instituted then. It was instituted on 8th January 1934. He has not produced the account books of the years 1312 and 1324 which would have indicated from what source the money for the conveyances, Exs. B-1, B-2 and B-4 was paid out. The plaintiff, however, has filed the account books which she withdrew in pursuance of the said compromise decree, namely the account book of the year 1315 and the account book of the year 1319. In the account book of the year 1319 under the entry of 12th Chait 1319 there appears an entry to the effect that the whole of the consideration money for Ex. B-3 was paid out of the common fund. In the account book of the year 1315, some pages of Ashar 1315 are missing. The conveyance Ex. B is dated 2nd Ashar 1315. That page is missing. Therefore, the payment of the consideration money Rs. 440 cannot be found in the said account book for that reason. But there is an entry later on in the same account book which shows that the costs of registration were paid on a date in Sravan from out of the common till. This proves conclusively that the conveyances Ex. B and Ex. B-3 although they stand in the name of Ramani were acquired for the family out of the family funds. No credible explanation has been given why the defendant has not produced the account books which had been taken out of Court by him after February 1935 after the institution of the suit and it is a legitimate comment of the other side that if these account books had been produced by the defendant they would have shown as is shown by the entry of the account books of the years 1319 and 1315 that the whole of the consideration for the other conveyances was paid from the joint till. We accordingly hold that the plaintiff has equal interest with the defendant in the land of this mouza.
12. With regard to the ejaras which were acquired in the name of Ramani they stand on the same footing. We accordingly hold that the defendant's contention in respect of Mouza Muktirkandi cannot stand and it must accordingly be overruled. The last point that remains to be considered is whether the plaintiff's claim to half share of touzi Nos. 2575 and 2576 is maintainable. The plaintiff's claim proceeds on the basis that the lands of these two touzis are still joint between the parties. The facts which have been proved are these. There was a parent estate touzi No. 119 of the Tippera Collectorate, in which the common ancestor Hari Kishore Roy had a share. After his death a partition under the Estates Partition Act was started. It was at the time of Ramani Kishore and Nalini Kishore and the evidence is to this effect. In 1896 when Nalini was a minor an application was put in on his behalf for an allotment separate from the allotment of his brother Ramani Kishore. This partition under the Estates Partition Act of the parent estate No. 119 was completed on 31st August 1908. Some lands, namely pathways and so forth, were left joint between the proprietors but in respect of the remaining lands separate sahams were formed. Saham No. 4 which was formed into touzi No. 2575 with a revenue of Rs. 10-6-0 was allotted to Ramani Kishore Roy and Saham No. 5 which was formed into touzi No. 2576 with the same revenue was allotted to Ramani Kishore Roy as executor to the estate of his deceased brother Nalini Kishore Roy. Other co-proprietors got other sahams. In Saham No. 4 was included the whole of the ancestral dwelling-house of Ramani and Nalini. This partition became effective from the September kist of 1908. These facts appear from Ex. 31, Vol. 2, pp. 405 to 410. The position in law therefore is that from September 1908 Ramani had no interest in touzi No. 2576 and Nalini's widow, the plaintiff, had no beneficial interest in touzi No. 2575. The lands were partitioned by metes and bounds and the common title which the parties had before in the lands of parent estate No. 119 was severed.
13. In the plaint the plaintiff puts forward various grounds in support of her case that the lands of these two touzi Nos. 2575 and 2576 must still be treated as joint between her and the defendant. It seems to us that they can only be treated now as joint property if it is proved by the plaintiff that since the partition lands of the said two touzis were again thrown into common Stock. It is on this principle and this principle alone that the plaintiff can support her claim. We will accordingly have to examine the evidence on the record in this light. (After discussing evidence their Lordships proceeded further.) After having considered the evidence on the point we do consider that the plaintiff has been able to produce such evidence as lay in her power for the purpose of proving her case that the two properties were thrown into the common stock and the defendant has purposely withheld documentary evidence which was in his possession on the pretext of an explanation which we cannot accept. We accordingly hold that the lands of touzi Nos. 2575 and 2576 are joint lands having been thrown into common stock after the partition of 1908. In both these touzis the plaintiff and the defendant have equal shares and they must be partitioned on that footing. During the course of the argument, Mr. Chowdhury who appears for the appellant did not persist in his client's claim to the Bhayabaha Kutchery which has been held by the learned Subordinate Judge to be a joint property of the plaintiff and the defendant. We accordingly do not discuss this point in our judgment. The judgment of the learned Subordinate Judge on this point is affirmed on the ground that the attack on this part of the judgment was ultimately not persisted in. The only portion of the decree which requires modification is about the direction of the lower Court for the appointment of a Commissioner for partitioning the revenue paying properties. The partition is to be effected by the Collector or by his subordinate in accordance with the provisions of Section 54 read with Order 20, Rule 18, Civil P.C. We declare the share of the plaintiff to be eight annas and of the defendant to be eight annas in the said revenue paying properties. If the Collector is unable or declines to effect the partition by metes and bounds on that footing then and then only will the Court appoint a commissioner to partition the same by metes and bounds. Subject to the above modification, this appeal is dismissed with costs, hearing-fee fifteen gold mohurs. The cross-objections are not pressed. They are dismissed but without costs.