1. Under these circumstances an application was made to me with a view to having such proceedings directed as might be necessary for the purpose of terminating the suit, and upon the hearing of that application I came to the conclusion that the only course open to the parties in the event of their not agreeing to the appointment of another arbitrator to determine all matters left undetermined was to proceed with the suit according to the ordinary course of the Court, and I accordingly directed that the suit should proceed and that any of the defendants, if so advised, should be at liberty to tile written statements. Written statements have been filed by two of the parties, viz., the Administrator General of Bengal who now represents the deceased Indra Chunder Singh and on the part also of Srish Chunder Singh.
2. Upon the case coming on for hearing a question was raised as to what matters remained to be determined in the action. There was some suggestion that evidence might be necessary, but I do not understand that the parties want this, and this question was discussed at considerable length.
3. The question, therefore, for my determination is what matters remain to be determined in this action for the purpose of having this suit wound up. So far as regards the matters in difference which have been determined by the arbitrators they have been embodied in decretal orders and cannot be disturbed. It is admitted that portions of the joint property of the parties have not yet been partitioned. As to this there must be a reference to the Registrar to enquire and report what property, moveable and immoveable, remains joint and unpartitioned and a division and partition of this property must be directed so far as the same is partible. There is no dispute as to this.
4. The defendant, Srish Chunder Singh, who is an infant, has through his guardian filed a written statement and in this statement he alleges that no account has been taken of the dealings with the joint property and of the rents and profits thereof on behalf of the estate of his father, the late Grish Chunder Singh, who died on the 13th of October 1877, and he claims that such account should now be taken up to the time when a Receiver was appointed. Mr. Hill on behalf of the infant asks that an account should be taken to ascertain whether the minor's share of the surplus profits were credited to the minor, and also an account of the arrears of rent of the zemindaries.
5. The learned Advocate-General, on behalf of the plaintiff, contends that the minor could not have asked for the account which he now seeks when the matter was referred to arbitration inasmuch as in the plaint the plaintiff only asked for accounts of the dealings with his property and of the rents issues and profits thereof respectively from the month of August 1888, and that it would be to enlarge the scope of the suit to direct such accounts for any period anterior to the month of August 1888.
6. It appears to me that it is not an enlargement of the scope of a partition suit to direct the accounts to be taken from a date anterior to a day named by the plaintiff for the taking of the accounts in his prayer, for relief. The suit is a suit for partition and it is the duty of the Court in such a suit to ascertain and determine what are the proper accounts to be taken and over what period the accounts should extend. If the date from which the accounts were to be directed depended on the wish of the plaintiff, as expressed in the prayer of his plaint, the result would be that any party to such an action who might be aggrieved by the fixing of an improper date for the taking of accounts, would be obliged to institute a fresh suit in order to have the accounts taken for any anterior period of time.
7. Then it is argued that the accounts have been waived and abandoned. It appears that Indra Chunder Singh on the 17th of March 1886 filed a plaint in which the other co-owners of the Pykeparah Estates were the defendants. In this plaint the plaintiff alleged acts of waste and misappropriation of the family property on the part of Protap Chunder Singh, who was then dead, and he prayed for an account of the property which belonged to the family at the time of the death of Issur Chunder Singh, and also for an account of the dealings of Protap Chunder Singh with the property, and the rents, issues and profits thereof, and for a partition. He also among other things sought that in taking the account all sums and property which might be found to have been wasted, lost or misappropriated by Protap Chunder Singh might be debited to his share in the property. This action was withdrawn by leave of the Court on the 16th of January 1888 on terms that the plaintiff' should be at liberty to institute a fresh suit only for partition of the joint properties, but not for any account of the estate or for any accumulations of income thereof for any period prior to the date of the withdrawal, the plaintiff having abandoned his claim in respect thereof. Before this order was made it had been referred to the Registrar to inquire and report whether or not the settlement was for the benefit of the minor Srish Chunder Singh and the Registrar had reported that it was for his benefit. This order is now relied upon as in effect a settlement of the accounts now sought for and as precluding the minor from seeking for an account anterior to the 16th January 1888.
8. I do not so construe the order. The sole matter which was referred to the Registrar for his report was whether or not it was for the benefit of the minor that a suit brought against him and others for the accounts, the nature of which I have stated, should be withdrawn. For the purpose of his report upon the reference it was not necessary, I think, that the Registrar should inquire whether the minor had any cross claims against the plaintiff or to consider such claims, if any, before he could arrive at a conclusion upon the reference. He was not asked to consider whether it was for the benefit of the minor that there should be a mutual abandonment of claims to account. Such a reference would have entailed much larger considerations than the matter which was referred and obviously could not be properly dealt with by the Registrar without a consideration of materials, which from his report were evidently not placed before him or considered.
9. I am of opinion for these reasons that the order of the 16th of January 1888 is no bar to the minor's present claim.
10. But then it is said that the whole course of the proceedings in this action and the conduct of the parties show, that there was a waiver and abandonment by all parties including the infant of their right to an account. 1 fail to see how this contention can prevail in a case where a minor is concerned unless such abandonment had been sanctioned and approved of by the Court as being* beneficial to the minor. No such sanction is here alleged or proved. It wag: merely found by the Court that it would be for the benefit of the minor that an arbitrator should be appointed for the purpose of determining all matters in difference in the suit between the parties and of effecting a partition of the joint estate, with the exception of such properties as in his opinion might be debutter or otherwise not liable to be partitioned.
11. But does the course and conduct of the arbitrators show that the claim to accounts was abandoned? I think not. One of the matters which Counsel for the minor now asks for is an account of the arrears of rent of the zemindaries. In his award of the 24th of June 1893, I observe that the arbitrator, Sir Romesh Chunder Hitter, deals with arrears of rent. In this award he directs, among other things, that the properties mentioned in the schedule annexed thereto, marked D, together with all arrears of rent due in respect thereof up to the date of the decree to be made on the award should be allotted to Indra Chunder Singh, and that Indra Chunder Singh should hold so much of the arrears as he should actually realize, or might with ordinary diligence realize, in trust for himself to the extent of eight annas, for Sarat Chunder Singh to the extent of three annas, for the representatives of Poorno Chunder Singh to the extent of three annas and for Srish Chunder Singh, that is, the minor, to the extent of two annas. He deals in the same manner with the properties allotted to Sarat Chunder Singh, the representative of Poorno Chunder Singh, Srish Chunder Singh and Puddomokhee Dasi, respectively. It thus appears that the arrears of rent were by this award dealt with.
12. This award was remitted to Sir Romesh Chunder Mitter by an order of the 7th of August 1893, and with respect to the properties and arrears allotted to Srish Chunder Singh the award was modified and these properties and arrears were by an award of the 19th of September 1893 allotted to Indra Chunder Singh and Sarat Chunder Singh, the surviving executor of the will of Grish Chunder Singh, in trust as to the arrears for Srish Chunder Singh to the extent of two annas, and as to the balance upon trust for the other beneficiaries as thereby provided.
13. It may be open to doubt whether this was a satisfactory way of dealing with the arrears, but it is not open to the parties now to question the award. It has been confirmed and a decretal order passed upon it. So far as regards the arrears of rent of the partitioned properties the respective parties to whom the properties were respectively allotted must account for the arrears as trustees in an independent proceeding. Such an account cannot be obtained in this action. It may be that if a separate action were brought upon the award and the decree therein that action and the present action might be consolidated or dealt with' at the same time. I do not see how the account of the arrears of the properties which have been already partitioned can be taken in this action unless it be by consent of all parties. It is unfortunate, I think, that the accounts were not disposed of by the arbitrators. The omission to deal with them will no doubt occasion a great expenditure of time and money.
14. As regards the properties which remain unpartitioned the minor is, in my opinion, clearly entitled to the accounts which he seeks. I shall direct accordingly.
15. As regards the income of the estate of Grish Chunder Singh, and of the minor Srish Chunder Singh of the joint properties no account has, up to the present time, been taken in this action. In my opinion he, Srish Chunder Singh, is clearly entitled to an account of the income up to the date of appointment of a Receiver and from the date of the death of his father Grish Chunder Singh in 1877.
16. Mr. Mitter.--Proceedings before the arbitrators by agreement of the parties to be taken as evidence in this case.
17. Very well, the plaint in Indra Chunder Singh's suit and the order of the 16th of January 1888 to be treated as evidence. I shall refer it to the Registrar to take these two accounts.
18. I direct that such Commissioner as the parties agree upon be appointed and in default as the Court shall direct All costs to be reserved. And then as to the costs of partition the usual rule, they shall be borne by the parties in proportion to their shares.
19. Infant's costs to be paid by the Receiver out of his share. Costs on scale 2 as this has been a hearing.
20. Mr. O'Kinealy asked the Court to decide the nature of the account to be taken and referred to the case of Damodardas Maneklal v. Uttamram Maneklal, I.L.R., 17 Bom., 271 (280), as deciding what books, etc., it was necessary to produce when a joint family account is ordered.
21. There being no objection on the part of the minor I direct that the books of account of the estate, so far as the same have been made up, shall be accepted as a statement of facts of the accounting parties, and in so far as the same have not been made up the accounting parties shall file written statements of facts; and the minor defendant is to be at liberty to take such objections to the accounts appearing in the books of account filed by the accounting parties as he may be advised.