P.C. Mallick, J.
1. This is a suit in which the plaintiff seeks to reopen a previous partition effected in 1920. The properties in suit along with a number of other properties belonged to one Dwarkanath Ghose. Dwarkanath Ghose died in 1892 after having published a will. By his will Dwarkanath created an absolute debutter in respect of two of his properties, namely, premises No. 40/1 and No. 41 Grey Street and bequeath the rest to his two sons Rajendra and Jogendra in equal share. Rajendra predeceased his father after having published a will. By his will, Rajendra appointed his brother Jogendra as the executor and bequeathed his properties to his four sons in equal shares subject to the payment of an excess amount to his youngest son Nagendra. His other sons are, Sidheswar, Bhupendra and Jnanendra. Jogendra applied for and obtained probate both of the will of his father Dwarkanath and of the will of his elder brother Rajendra. On 4-9-1909, Bhupendra, Jnanendra and Nagendra the three sons of Rajendra then alive instituted a suit in this Court against Jogendra and others for construction of the wills of Dwarkanath and Rajendra and for partition. This was suit No. 969 of 1909. This suit ended in a consent decree on 24-11-1910. By the consent decree the parties had the entire estate of Dwarkanath including the two premises No. 40/1, Grey Street and No. 41, Grey Street partitioned amongst themselves on the footing that the said two properties were also secular. By this decree, all the properties belonging to the estate of Dwarkanath were divided into two parts, one part including premises No. 40/1, Grey Street, was allotted to Jogendra and the other part which included premises No. 41, Grey Street was allotted to the three sons of Rajendra jointly. Sidheswar the only other son of Rajendra died long ago in 1903 leaving him surviving his widow, Padma Dasi, as his sole heir. The three sons of Rajendra subsequently in 1920 had the properties jointly allotted to them by the decree in Suit No. 969 of 1909 partitioned amongst themselves by one Kedarnath Ghose who was appointed arbitrator to effect the partition. Kedarnath's award is dated 12-10-1920, which was accepted by the parties in writing and was registered. To Nagendra was allotted premises No. 41, Grey Street subsequently renumbered No. 41/A, Grey Street. To Jnanendra was allotted premises No. 40, Grey Street and premises No. 86 Raja Baba Kissen Street. To Bhupendra was allotted premises No. 24/2, Nalin Sarkar Street, Padma Dasi was given no property but provision was made for her maintenance which: was charged on the properties allotted to the parties. It is recorded that the moveables have been divided amongst the parties. Only one item of joint property was not partitioned and this is the royalty payable in respect of the Rajendra jute mark from the packers. It was directed that it would remain joint property and the royalty realisable would be divisible among the three brothers equally. The property allotted to Bhupendra had since thereafter been sold in execution of a decree passed against him on 4-5-1923 and was purchased by Upendranath Sarkar and others. Nagendra mortgaged the properties allotted to him, for Rs. 4,500/-. The mortgagee Snehalata enforced the mortgage and the property was ultimately sold on December 9, 1936 and purchased by Haricharan, Haripada and Durga Charan Dutts for Rs. 19,000/-. There has been subsequent transfers made by the Dutts.
2. The plaintiff Debendra is the only son ofNagendra who died sometime in June 1931. In1948 the plaintiff as the next friend of the familydeity Sri Sri Ishwar Sreedhur Jew instituted a suitin this Court being Suit No. 3379 of 1948 to establish the title of the deity in the premises No. 41/Aand 42 (formerly 40/1 and 41, Grey Street) whichwere created debutter by Dwarkanath but secularised by the consent decree in Suit No. 969 of 1909as previously stated. This suit was heard by H.K.Bose J. and by his judgment and decree dated 15-6-1950, the learned Judge dismissed the suit asagainst the heirs of Jogendra in respect of premisesNo. 42, Grey Street but declared premises No.41/A, Grey Street to be absolute debutter property of the deity. Bose J. held that the consent decree in suit No. 969 of 1909, the award made byKedarnath Ghose in 1920 and the various conveyances and mortgages so far as it affected premisesNo. 41/A. Grey Street were invalid, inoperativeand not binding on the deity. The judgment ofBose J. has been confirmed on appeal by the Appeal Court and subsequently by the Supreme Court.In the result, (sic)at at all material times the premises No, 41/A, Grey Street was andstill is debutter property notwithstanding the decree in the suit above referred to and notwithstanding the parties treating the same to be secular property.
3. The present suit has been filed by the plaintiff, son of Nagendra, for partition of only such of the properties belonging to the parties as are still within the family. The defendants impleaded are Jnanendra and Labangalata, Nagendra's widow. It is pleaded that Bhupendra the other co-sharer has not been heard of since 1927. The transferees of the various properties allotted to Bhupendra and Nagendra have not been impleaded as defendants. It is pleaded that the award whereby partition was effected between the three sons of Rajendra are invalid, inoperative and is of no effect. This award purported to allot to Nagendra the properties which did not belong to the parties but belonged to the deity. The properties already alienated by the members of the family are alleged to be no longer capable of being partitioned and the only properties still left in the family are premises No. 40, Grey Street and premises No. 86, Raja Nabakissen Street allotted to Jnanendra by the partition of 1920. It is contended that these properties are still capable of being partitioned. The partition of the properties effected by the award of 1920 is contended to be invalid, inoperative and of no effect. It is alleged in paragraph 33 of the plaint that theplaintiff came to know of his rights on or about 16-11-1953 when judgment was delivered by the Supreme Court in Civil Appeal No. 201 of 1952 Certain declarations have been claimed, if necessary including a declaration that the award is invalid, inoperative and is of no effect and that the properties in suit jointly belong to the plaintiff and the defendant Jnanendra. It is also prayed that the award be cancelled and/or set aside. Jnanendra is contesting the suit and has filed a written statement. The substantial defence taken by him in his written statement is that ever since the award of 12-10-1920 each of the brothers, namely, Jnanendra, Bhupendra and Nogendra entered into possession of the properties allotted to each and ever since have been in possession of the properties so allotted as their own exclusively, openly and adversely to each other. It is also alleged that the partition effected by the award of 1920 is a perfectly good partition in law and the properties having already been partitioned, no second suit for partition lies in respect of the same properties. The suit is alleged to be barred by limitation. Pleas of non-joinder, estoppel, waiver and acquiescence have also been taken.
4. At the trial the plaintiff tendered no oral evidence. The pleadings and judgments in Suit No. 2379 of 1948, the judgment of H.K. Bose J., the judgment of the Appeal Court delivered by the Hon'ble Chief Justice and the decree of the Appeal Court as printed in the Paper Book were tendered. The Wills of Dwarkanath and Rajendra, the consent decree in Suit No, 969 of 1909, the award of Kedarnath Ghose made on 12-10-1920 and an affidavit of Nogendra affirmed on 17-5-1936 printed in part 2 of the Paper Book were also tendered. Some other court records and documents have also been tendered.
5. The defendant Jnanendra has also tendered a number of documents. He has' also tendered his own evidence and the evidence of three other witnesses, namely, Jatindranath Bose, Jagai Mohon Mitra and Sachindranath Das. These three other witnesses were called to depose that Bhupendra did not die in 1927 as alleged in the plaint but sometime in 1946. Jnanendra in his evidence supported the case made in the written statement and proved that ever since 1920 he has been in possession of the premises allotted to him exclusively, adversely to his other brothers. The Corporation assessment books and other receipts have been tendered in proof that Jnanendra was in exclusive possession of the other properties. These are substantially the evidence on record.
6. Mr. B. C. Dutt, learned counsel appearing for Jnanendra, submitted that a partition is liable to be re-opened only on the ground of fraud or mistake. In the plaint there is no allegation of fraud or mistake made so as to invalidate the partition of 1920. He, therefore, submitted that no case has been made for re-opening the partition and the plaint does not disclose any cause of action. The plaint, however, does indicate that the plaintiff's case is that the parties to the 1920 partition proceeded on the footing that the joint properties to be partitioned were inter alia premises No. 41/A Grey Street which was the only property allotted to Nagendra. It has now been authoritatively declared by the highest Court that the said premises 41/A, Grey Street was all along and still now is a debutter property and as such could not have been the subject matter of partition between Jnanendra, Bhupendra and Nogendra. This amounts to an averment that the parties to the partition of 1920effected the partition on the mistaken belief that 41/A. Grey street was not debutter but secular property and as such liable to be divided among the parties in partition. It has been alleged that such a partition is not valid and binding in law. It is true that no allegation of fraud has been made against anybody. While, therefore, agreeing with Mr. Dutt that no case of fraud has been made in the plaint, I am unable to hold that no case of mistake has been made in the plaint so as to invalidate the partition of 1920. On a fair reading of the plaint, I am satisfied that a case of mistake, has been made in the plaint and the suit is not liable to be dismissed on the ground that the plaint does not disclose a cause of action to re-open the partition.
7. The case made is that the three brothers Bhupendra, Jnanendra and Nogendra sought to effect a partition amongst themselves of a number o properties including premises No. 41/A, Grey Street on the footing that they were all secular properties, in which each of them had a share. In the partition the only property allotted to Nogendra was premises No. 41/A, Grey Street. The remaining properties were allotted to the two other brothers Bhupendra and Jnanendra. Having regard to the judgment of Bose, J. finally affirmed by the Supreme Court it must be held that when premises No. 41/A, Grey Street was allotted to Nogendra, it was a debutter property and did not belong to the parties. The position, therefore, is that in the partition of 1920 the whole of the joint family properties were allotted to Jnanendra and Bhupendra to the total exclusion of Nogendra. The allotment of premises No. 41/A, Grey Street to Nogendra is not an allotment of joint property but a property belonging to a stranger, namely, the deity. This was bought about not as a result of fraud on the part of Jnanendra or Bhupendra but as a result of mistake of alt the parties concerned that premises No. 41/A, Grey Street was secular property belonging to the parties and as such liable to be partitioned amongst themselves. It is submitted by Dr. Das learned counsel appearing for the plaintiff that on these facts, it must be held that the partition of 1920 was a nullity and the properties continued to be joint properties in spite of the so-called partition and that the joint properties of 1920 or so much of them as are still within the family, are capable of being partitioned among the co-sharers according to their share. In any event, even if the partition of 1920 cannot be considered to be a nullity, the said partition was and is a very inequitable partition and it can be and ought to be re-opened so as to do justice to Nogendra.
8. Can the partition of 1920 be considered to be a nullity? It is submitted that it is on the same footing as that of a partition effected by leaving out a co-sharer. Such a partition has been held to be a nullity and the excluded co-sharer is entitled in law to claim a fresh partition by claiming that the partition effected by the other co-sharers by excluding him is a nullity and not binding on him. The reason is not far to seek. In law each one of the co-sharers has his defined share in each item of the joint property. A partition is a division of joint property into as many parts as there are co-sharers and allotment to each a share which the allottee will get exclusively instead of having a fractional share in all the joint properties. This cannot be effected unless all the parties join in effecting a partition by executing the necessary mutual conveyances. Some of the co-sharers, therefore, are not competent in law to give to each of themselves full share in any joint property in the absence of any co-sharer. The share of the excluded co-sharer remains undisposed of and in consequence none of the co-sharers can in a partition effected by leaving out one co-sharer have exclusive title in any joint property. It is because of this that a partition effected either by agreement or by a suit in which a co-sharer is left out and/or is not made a party, has been held to be invalid and a nullity. The other co-sharers in law cannot deal with the share of the excluded co-sharer and hence a partition effected by leaving out one co-sharer is no partition at all. This argument does not apply when all the co-sharers agree and effect a partition of their properties and include in the partition, properties belonging not only to themselves but to outsiders as well. In such a partition there is a consensus of all the parties so as to give title to each allottee exclusive right to the property allotted to him. It may be that in such a partition the allottee of property not belonging to the parties but belonging to a stranger, may be prejudiced and the partition may be inequitable. The Court of Equity may in such case interfere in the matter to do justice and in an appropriate case even re-open the partition. But this is not on the footing that there was no partition at all which cannot be recognised in law but on the footing that thought there was a perfectly good partition in law which operated in effecting transfer of title, the partition has proved to be inequitable by reason of inclusion of stranger's property in the hotch potch allotted to one co-sharer who is subsequently dispossessed. In such circumstances equity will intervene to compel the other other-co-sharers to do equity by distributing the burden of loss on all instead of on one. The most important point of distinction to be noted is that whereas in the case of partition by excluding a co-sharer, there was no consensus on the part of all co-sharers to effect the partition and no extinguishment of title in anyone of the joint properties of the excluded co-sharer, in the case where the mistake consists in putting in the hotch potch properties other than joint properties, there was a consensus on the part of all the co-sharers to effect a partition and to complete transference of title but that such a partition inevitably resulted in inequity to the co-sharer who has been allotted either partly or wholly not joint property belonging to the parties but property belonging to third party from which he was subsequently dispossessed. This last class of cases cannot be considered to be nullities and cannot be equated to partitions effected by leaving out one or more co-sharers. As I read the cases cited and to be noticed later, the law seems to be as stated above. The partition which included outside property is not invalid or a nullity but is merely an inequitable partition and the Court of Equity intervenes not because there was no partition effected which is valid in law but because the partition was inequitable and imposed hardship on one of the parties which should be corrected, if possible.
9. Parties when they effect a partition amongst themselves bargain for this contingency that there might be defect in title in some of the properties. In all cases of partition, therefore, there is an implied indemnity given by each co-sharer to the others. The law implies that the parties while effecting the partition had in contemplation the fact that the title in some of them might not be perfect and a co-sharer to whom such a property is allotted may subsequently suffer loss by reason of his title being displaced by one having a superior title. If the possibility of the title in the property being defective was within the contemplation of the parties, how can there be any mistake as to title so as to nullify partition? In the instant case, a case of mistake has not been made in the plaint in expressterms and from this point of view there is justification in the comment made by Mr. B. C. Dutt thatthe case sought to be made is not to be found inthe pleadings. I apprehend that the learned pleader who drafted the plaint did not intend to makea case that the partition of 1920 was a nullity butthough valid the same is liable to be re-opened onequitable consideration having regard to the factthat the title to the only property allotted to Nogendra has been found to be illusory and the deityhaving superior title had since obtained possessionof the property.
10. The case of Maruti v. Rama decided by a Division Bench of the Bombay High Court and reported in ILR 21 Bom 333 has been cited by Dr. Das. This is a case in which the parties under a bona fide mistake included in the properties to be partitioned, a garden (Malas) which did not belong to the parties but was held in mortgage by the joint family. Subsequently, after 20 years the mortgage was redeemed and the owner of the property got back the property. As recorded in the judgment delivered by Parsons J. 'plaintiffs consequently lost their mala and they now bring this suit to make the defendants contribute towards the loss they have sustained, in other words, for repartition.' The Court held that the plaintiffs were entitled to the relief and at page 335 of the report I find the following observation :
'In his work on Hindu Law, at page 232, Sir P. Strange says : 'Whenever from any cause not understood at the time the division proves to have been unequal or in any respect defective, it may be set to rights notwithstanding the maxim 'Once is partition of the inheritance made'. 'In the case of Davloba v. Rayagavada 1883 PJ 227 a person claiming by a paramount right came in after partition and took away one-half of the property. The learned Judges decided that in such a case the parties 'were bound to bear that loss equally. They had divided under such a misapprehension of the true state of the case that the Hindu Law, like common equity, would correct the error by distributing the existing but unknown burden evenly where it was placed on one only of the sharers.'
This decision, in my judgment, does not lay down the proposition that when in a partition a property is included through bona fide mistake which does not belong to the parties but to a stranger, then the partition becomes void and illegal. This case is an authority for the proposition that on equitable consideration the Court would correct the error by distributing the existing but unknown burden evenly when it was placed on one only of the sharers. In this case, the mistake was detected some 20 years after and the Court felt that it still could do equities between the parties, even after the expiry of BO many years. Apparently, there has been no substantial alienation of the family properties even though years passed. At least, it does not appear from the judgment that there has been a substantial alteration. This case of ILR 21 Bom 333 was considered by a Division Bench of the Allahabad High Court in the case of Ganeshi v. Babu Lal ILR 40 All 374 : (AIR 1918 All 223). It has been pointed out that when a partition is effected, there is always implied a mutual right of indemnity or contribution in respect of any paramount claim by a third party which throws the burden of loss not contemplated in the partition proceedings on one of the parties. The partition is not bad in such cases and is not liable to be reopened as a whole. As observed by Walsh, J. at p. 381 of the report (ILR All) : (at p. 225 of AIR) :
'I do not think that it entitles him to open up the previous decision except in so far as is necessaryto apportion the loss which arises out of the new fact. This right is based simply upon this principle, that where parties arrive at a partition either by agreement, or by a decree (which after all is only a more solemn and binding form of agreement), there is an implied and mutual right of indemnity or contribution in respect of any paramount claim by a third person which throws the burden of a loss not contemplated in the partition proceedings unfairly upon one of the parties.'
I respectfully agree with the above observation. The case of Balaji Ganoba v. Annapurnabai, decided, by a single Judge of the Nagpur High Court and reported in AIR 1952 Nag 2, lays down the same proposition, namely, the parties having divided the properties under a mistake of their rights to it are bound to bear the loss proportionately. Such a claim is based on equitable consideration. The Court might well have added that it follows from the rule of mutual indemnity implied in every partition. The law has been stated by Mayne in his 'Hindu Law and Usage', 12th edition in the following terms at page 567 :
'Where at a partition intended to be final some part of the property has been overlooked, or fraudulently concealed, but is afterwards discovered, it will be the subject of a like distribution among the persons who were parties to the original partition, or their representatives. But the former distribution will not be opened up again. Conversely, where through a mistake as to, or ignorance of, the title, property has been handed over to one member for his share, which afterwards turns out to belong to a stranger, or is to be charged for his benefit, the person who has received such property will be entitled to compensation out or the shares of the others. Where, however, the whole scheme of distribution is fraudulent, whether as regards a minor or otherwise, it will be set aside absolutely, unless the person injured has acquiesced in it after full knowledge that it was made in violation of his rights.'
It is to be noticed that a partition in which a property belonging jointly to the parties is left out and a partition in which a stranger's property is allotted to the co-sharers from which the title of the allottee was subsequently displaced, have been treated on the same footing. None of them are considered to be illegal. In the first case, a second partition will take place of the property left out and in the other case, the allottee who suffers loss isentitled to be compensated out of the share of others. The point is made further clear from the comparison of these cases with the class of cases in which the Court will set aside a partition as stated in the last sentence quoted above.
11. Dr. Das' contention that the partition of 1920 was a nullity and void and gave no title to the parties to the properties allotted to them cannot be upheld either on principle or on authorities. I hold that the partition of 1920 was perfectly valid in law and Jnanendra acquired good title to the properties allotted to him on such partition.
12. Assuming that I am wrong and Dr. Das is right in his contention that in spite of the partition,of 1920, the parties continued to have their share in all the properties, which was the subject matter ofpartition, even then the plaintiff cannot succeed. Ever Since 1920, the defendant Jnanendra has been in possession of the property allotted to him openly as of right and adversely to the other co-sharers including Nagendra and his branch. The evidence tendered is conclusive on the point. There is the evidence of Corporation record and the realisationof rents from the tenants of the premises by Jnanendra alone, to the exclusion of all other brothers. Iaccept the evidence of Jnanendra on the point. There is no contrary evidence whatsoever. I hold, therefore, that even if by the partition of 1920, Jnanendra did not acquire exclusive title in the properties allotted to him in law, he has acquired good title by adverse possession, having been in exclusive possession for much more than the statutory period. It is proved beyond doubt that there has been a complete ouster of the other co-sharers from the property allotted to Jnanendra and which he is in exclusive possession of ever since 1920. Title of the other co-sharers in the said properties is therefore lost and the plaintiff as Nagendra's heir is debarred from setting up a title to this property as a co-sharer and claim partition on that footing. In the instant case, there is clear and unchallenged evidence of open assertion of hostile title against the other brothers coupled with exclusive possession and enjoyment by Jnanendra of the properties allotted to him by the partition of 1920. The Supreme Court decision in the case of Lakshmi Reddi v. Lakshmi Reddi, can hardly be of any assistance to Dr. Das.
13. In my judgment, it is impossible to hold in the facts of this case that in 1920 there was no partition in law and such part of the joint family properties as is still within the family can be partitioned over again. The plaintiff, however, as the representative of Nagendra. an admitted co-sharer whose title to the property allotted in partition has been displaced by the superior title of the deity, might still have a claim to be reimbursed for the loss of the property allotted to his father against the other co-sharers. The burden of loss in law is liable to be borne equally by all the co-sharers. Such a claim can be made and in proper cases this can be done by reopening the partition. The court of equity can and should intervene in the interest of the co-sharer who has suffered loss by reason of the displacement of title in the property allotted to him by a superior title. The Bombay, Allahabad and Nagpur cases cited above are clear authorities in support of this proposition. It now remains to be considered, therefore, whether the plaintiff as the heir of Nagendra is entitled to invoke the above principle to get any relief in this suit. As pointed out by Walsh, J. in the Allahabad case noticed before a co-sharer whose title to the property allotted to him is displaced, is not entitled to reopen the partition ex debito justicia. He is only entitled to be compensated for loss suffered and claim contribution from the other allottees. The first thing to induce a court of equity to intervene on behalf of a co-sharer whose title to the property allotted is displaced by superior title is that the court must be satisfied that the plaintiff seeking the assistance of the court of equity has suffered loss. In a case ' where the co-sharer after allotment sells or disposes of his share to a third party, the party who suffers loss is not the co-sharer but his transferee, when the title of the co-sharer is negatived in a subsequent suit. The co-sharer having received full value of the share from the transferee cannot be said to have suffered any loss. The loss falls exclusively on the third party. In the instant case exactly this has happened. Six years after partition and allotment, Nagendra executed a mortgage of premises No. 41A, Grey Street. In enforcement of this mortgage, the property was sold on 9-12-1936 and purchased by the Dutts. The sale was thereafter confirmed and the purchasers took possession. Long after this, the suit was instituted by the deity in 1948 claiming paramount title which claim has been upheld by Bose, J. and confirmed by the Supreme Court. On the face of these facts, how can it be held that Nagendra and/or his heir has suffered loss by reason of the displacement of title by the deity in respect ofthe property allotted to Nagendra? It has neither been pleaded nor proved that because of defective title Nagendra did not get full value of the property allotted to him. It must be held, therefore, on the evidence in this case that Nagendra suffered no loss by reason of the decree in the Suit No. 2379 of 1948 instituted by the deity, whereby the title of the deity in the said premises No. 41A. Grey Street was declared superseding the title of the Dutts. I hold that the plaintiff as Nagendra's heir has suffered no loss as a result of the decree in Suit No. 2379 of 1948. Such being the case, this court cannot intervene in favour of the plaintiff on any consideration of equity. No loss having been suffered by the plaintiff, the other co-sharers of Nagendra cannot be called upon to share the loss. There is no equity that the plaintiff can invoke to induce the court to do justice to him by reopening the partition or otherwise. The cause of action on which the plaintiff is entitled to come to court for relief and ask the other co-sharers to share the burden is the loss of property suffered by him. There being no loss of property to the plaintiff in the instant case, he has no case as against all or any of his former co-sharers for contribution and no right to have the partition reopened. In my judgment, a co-sharer who has sold away the property allotted to him on partition is not entitled to claim either compensation or repartition, if title to the property allotted to him is subsequently displaced by a paramount title resulting in the dispossession not of himself but of his transferee. I am not called upon in this case to decide whether a transferee has a right to claim compensation or repartition when his title in the property derived from a co-sharer is displaced by a superior title in a subsequent suit.
14. Mr. Dutt submitted that the plaintiff is not entitled to ask for rescission of the contract to partition and the partition resulting therefrom on the ground of mere mistake unless he is prepared to restore all the benefits received and to put the other parties to the partition in the same position as before Nagendra enjoyed the usufruct of the property till the property was sold, utilised the mortgage money or the balance of sale proceeds, if any, for himself. The plaintiff has neither offered to restore all these benefits derived by him from the partition nor is he in a position to restore it, There are other difficulties in restoring the parties to the position when the partition was effected. Bhupendra has sold his share and his share is no longer available for partition. The only party who still retains his share is Jnanendra and he also was required to pay and did pay owelty money to Padma. In this state of fact it is impossible to restore the parties substantially to the same position as occupied by them when the partition took place in 1920. Mr. Dutt relies strongly on rule of equity embodied in Section 36 of the Specific Relief Act in support of his argument. Dr. Das contended that it is true that Nagendra enjoyed the usufruct of the property and utilised the mortgage money for his own purpose. But it cannot be said that the other members of the family have been deprived in any way. The property belonged to the deity and the party deprived is the deity and the purchaser in the mortgage sale. None of the members of the joint family are entitled to make a grievance that they have been deprived. The point, however, is not whether the other co-sharers have been deprived or not. The point is whether Nagendra derived benefit under the partition of 1920. The property allotted to Nagendra was and is no doubt debutter property. But ever since the consent decree dated 24-11-1910 in Suit No. 969 of 1909, all the three brothers, namely, Bhupendra, Jnanendra and Nagendra, have been jointly enjoying the usufruct of the said property onthe basis that the property was secular joint property belonging to them. It is because of the partition of 1920 that Nagendra was in a position to get the whole usufruct for himself, to the total exclusion of his brothers Bhupendra and Jnanendra and raise money on the mortgage of that property for his exclusive benefit. The fact that legal title in the property was in the deity or that the three brothers as sebaits were entitled to get the usufruct for the benefit of the deity cannot obliterate this fact that Nagendra got benefits under the partition of 1920, which he could not have got without it. In equity, therefore, he is not entitled to retain this advantage and, at the same time, claim that he has been damnified for which he ought to be compensated by getting a share in the properties allotted to Jnanendra. Further, in the events that have happened since the partition, it is impossible for the plaintiff to restore the parties in the position occupied by them in 1920 without bringing back all that Nagendra got under the partition of 1920. The plaintiff's, claim for reimbursement out of Jnanendra's share without bringing back all that he got under the partition of 1920 can hardly be sustained.
15. The question can be looked at from another point of view. All the parties including Nagendra were parties in secularising debutter property. This fact cannot be ignored by a court of equity. If after being a party in secularising a debutter property, he is compelled to restore the property to the deity its rightful owner, will he be permitted to complain that by reason of this deprivation he has suffered loss vis-a-vis his other co-sharers who should contribute to this loss? For such a party a court of equity can not and should not interfere. The court assists a party who suffers by reason of a stranger's property being allotted to him in partition through bona fide mistake. When, however, a shebait secularises a debutter property along with other coshebaits, each one of them are guilty of a wrongful act. It is neither a mistake, far less a bona fide mistake. It is a clear case of breach of trust. On principle and on authorities, a plaintiff is entitled to claim compensation or reimbursement only when there is a bona fide mistake of all the co-sharers that a stranger's property has, through mistake, been included in the scheme of partition. When the sebaits are guilty of breach of trust in converting a debutter property into secular and then dividing the property amongst themselves, there is no mistake, far less a bona fide mistake. No court will come to the assistance of such a fraudulent shebait when he is compelled to restore the property to the deity, its lawful owner. He will not be permitted to plead that there is a bona fide mistake in the transaction.
16. On these findings, this suit in so far as it seeks to reopen the partition of 1920 is liable to be dismissed. Certain other points, however, have been canvassed in this case and I may shortly record my views on them.
17. Mr. Chatterjee, learned counsel appearing with Mr. Dutt on behalf of the defendant, contended that this suit challenges the validity of an award. Such a suit does not lie under Section 33 of the Indian Arbitration Act which provides that the validity of the award can only be challenged by an application under Section 33 of the Act. The award in the instant case was made on 12-10-1920, long before the Indian Arbitration Act, 1940, came into force. In the case of Manji Ranji v. H. M. Mehta and Co., AIR 1943 Bom 463, a Division Bench of the Bombay High Court, consisting of Beaumont C. J., and Rajyadhakshya, J. held that the Arbitration Act of 1940 does not apply to awards made before the Act came into force. It only applies to an award made under it.With this decision and the reasoning given I respectfully agree. The award in the instant case having been made long before the Indian Arbitration Act, 1940, came into force, the instant award is not liable to be challenged only by an application under Section 33 of the Indian Arbitration Act 1940.
18. It was contended by Mr. Dutt that all the parties to the partition and/or their representatives have not been impleaded as defendants. The parties to the partition of 1920 were Bhupendra, Jnanendra and Nagendra and Padma-dasi, the widow of Sidheswar. The suit has been instituted by the plaintiff who is the only son of Nagendra who died in 1931. Nagendra's widow Labanyalata has been impleaded as a defendant. The only other defendant is Jnanendra. It is alleged in the plaint that Bhupendra has not been heard of since 1927 and, therefore, may be presumed to be dead. Bhupendra would only be presumed to be dead seven years after 1927, when he was last heard of. The suit has been filed on the footing that Bhupendra is dead. It is claimed in the plaint that Bhu-pendra's heirs would be Jnanendra and the plaintiff. Both of them are parties to the suit. The transferees of Bhupendra and Nagendra's share are not impleaded. If the 1920 partition is nullity, then a co-sharer is entitled to institute a suit for partition of so much of the joint family properties as are within the family, ignoring those that have been alienated. In that view only, the members of the family as co-sharers are necessary parties interested in the partition. In that view, the necessary parties are before the court. I have held, however, that the partition was not a nullity. The partition of 1920 is perfectly valid in law. All that a co-sharer who has been displaced by paramount title from the property allotted to him is entitled to is reimbursement and contribution from the other co-sharers. In appropriate cases the court, in order to distribute the burden equally on all the co-sharers may direct a repartition. Reopening of partition, in my judgment, properly can only be directed when substantially all the properties which were the subject matter of a previous partition are still available for partition. When all the other co-sharers have disposed of their property and only one co-sharer retains the property allotted to him, the court will not reopen the partition, but will try to adjust the equities, if possible otherwise. This is, however, a point of substance and a party claiming repartition in such cases will fail on merits. I do not, however, consider that for the purpose of maintaining the suit it is necessary to implead the transferees as defendants. If the partition of 1920 was a good partition, the co-sharers transferring the shares allotted to them were competent to give good title to the transferee and the transferees's title to the properties which were the subject matter of previous partition cannot be challenged in a suit by the co-sharer who has lost the property allotted to him. I do not think that the transferees are necessary parties in this suit.
19. There is a dispute between the parties as to when Bhupendra died. The plaintiffs case is that he was last heard of in 1927. The defendant's case is that he was last seen in 1946 and was not heard of after the riots. The evidence is one-sided to the effect that Bhupendra was seen in 1946 and not after that. There is no contrary evidence. On the present evidence, it must be held that Bhupendra did not die before 1946. If he is presumed to have died after 1946, at his death, his heir would be Jnanendra. Bhupendra, however left no property after his death.
20. Is the plaintiff as Nagendra's heir competent to institute this suit? It is argued by Mr. Dutt that according to the plaintiffs own averment made in paragraph 4 of the plaint, Nagendra, prior to his death, executed a deed of settlement appointing his wife and Samarendra as trustees, the plaintiff being one of the beneficiaries only. According to Mr. Dutt, the only parties competent to institute the suit are the trustees and not the plaintiff who is a mere beneficiary. Though one of the trustees, namely, Nagendra's widow has been impleaded as a defendant, she has not been imleaded as a trustee. The other trustee has not even been impleaded as a defendant. The suit must, therefore, fail on this ground. The settlement, however, is with reference to premises No. 41A, Grey Street allotted to Nagendra which at the date of settlement dated 23-2-1927 was subject to mortgage. The property conveyed to the trustee was premises No. 41A, Grey Street, subject to mortgage. The trustees under the document could hardly be construed to have been authorised to claim compensation and/or repartition from the co-sharers on the title of Nagendra being found defective in premises No. 41A, Grey Street. In my judgment, the right of the plaintiff as Nagendra's heir has not been affected by the deed of settlement. The plaintiff was competent to institute the suit and the suit is not bad for non-joinder of parties.
21. It is last contended that the suit, in any event, is barred by limitation. Repartition is claimed on the ground of mistake and the mistake, according to the plaintiff's own averment in the plaint in Suit No. 2379 of 1948 became known to the plaintiff on 19-7-1948 when the suit was filed. The plaintiff instituted the said suit as a next friend of the deity and the case made was that the property was the debutter and was wrongly treated as secular. This averment in the plaint was verified as being true to the knowledge of the plaintiff. It must be held, therefore, that the mistake to the effect that the property was debutter and could not be allotted to one of the co-sharers on that basis became known to the plaintiff on or before 19-7-1948, the date of filing the plaint in the debutter suit. The instant suit has been instituted on 3-7-1954, long after the expiry of 3 years from the date of knowledge. Hence the suit is time-barred under Article 96 of the Limitation Act which is the appropriate Article applicable to this case. It has been held by a Division Bench of the Madras High Court in the case of Ramakotayya v. Sundaramayya AIR 1931 Mad 707 that such a suit for repartition, on the ground that certain properties wrongly allotted to the share of the plaintiff really belonged to a third party who obtained a decree for possession of these properties from the plaintiff is governed by Article 96 and not by Article 127 or Article 1144 of the Indian Limitation Act. The time runs when the plaintiff is dispossessed. In the case cited the plaintiff was dispossessed after 3 years, but before 12 years and it was contended that Article 127 or Article 144 would apply. In the instant case, the plaintiff having long been dispossessed pursuant to the sale in the mortgage decree, there is no question of the plaintiff being dispossessed from the property in execution of the decree in Suit No. 2379 of 1948. He cannot, therefore, claim that the instant suit is governed by Article 127 or by Article 144 of the Limitation Act. To cover this difficulty as to limitation, it is pleaded in paragraph 28 of the plaint that pursuant to the Supreme Court judgment and decree dated 16-11-1953, the deity has since about 6-7-1951 and still is in exclusive possession of premises No. 41A Grey Street. Thisis obviously a mistaken averment, the decision of the Supreme Court being anterior to the deity's taking possession. The point relevant is not, however, when the deity came into possession but when the plaintiff was dispossessed. The date of dispossession as appearing in the previous paragraph, is more than 12 years before the institution of the instant suit.
22. Dr. Das submitted that Article 98 would apply to a case when the plaintiff is dispossessed as in the Madras case cited above, by reason of a claim to title by the superior claimant. When the plaintiff was not in possession at the date of dispossession by the claimant having superior title, neither Article 96 nor any other Article of the Limitation Act would apply. Such cases would be governed by the residuary Article, namely. Article 120, Limitation would be 6 years from the date when the right to sue accrues. Right to sue accrues when in fact the transferee from the co-sharer is dispossessed. In the instant case, dispossesion took place on 6-7-1951 and this suit has been instituted well within 6 years. The argument may have some plausibility, but it is hardly convincing. The language of Article 96 is very wide and all suits wherein the relief is sought on the ground of mistake must be governed by this Article. Whether the co-sharer was dispossessed, or his transferee buy one claiming superior title has relevance in determining whether the plaintiff has any cause of action to institute this suit. But it is wholly irrelevant for the purpose of deciding whether Article 96 would apply or not. In the Madras case the plaintiff had been dispossessed and suffered loss and he had the cause of action to institute the suit. In the instant case, the plaintiff has not been dispossessed but his transferee and it is the plaintiff's transferee who has suffered loss and not the plaintiff. The plaintiff, therefore, has no cause of action to institute the suit. But if the plaintiff has cause of action to institute this suit, the basis of action and the ground on which relief is sought would be mistake. The proper Article would, therefore, be Article 96. There being this special Article governing a suit based on mistake, the residuary Article 120 cannot be taken recourse to by Dr. Das. I am, therefore, unable to agree with Dr. Das that Article 120 should be made applicable in this case. I have held that a co-sharer who, prior to the discovery of mistake, sold away the property to a third party cannot be said to have Buffered any loss for which he is liable to be indemnified by other co-sharers. In other words, he has no cause of action to institute a suit for repartition or compensation. The partition of 1920, therefore, cannot be reopened.
23. One property, however, was left joint bythe partition of 1920 namely, royalties receivableby the parties in respect of Rajendra Jute Marksfrom the packers. The right to realise royaltiesis, according to Mr. Mustafi, not of much valueand he is agreeable that this right may be whollyallotted to the plaintiff. That will obviate the passing of a preliminary decree. The plaintiff is prepared to waive accounts against the defendantJnanendra. I, therefore, direct that the royaltypayable in respect to Rajendra Jute Marks wouldbelong to the plaintiff exclusively. He will havethe right to recover all arrear royalty. I make itclear that he wall have no claim as against Jnanendra on account of this royalty. Parties, being relations, there will be no order as to costs. Certifiedfor two. Counsel.