1. This is an appeal arising out of a suit for declaration of title in respect of various moveable and immoveable properties, for partition, for accounts, and for other reliefs.
2. The suit has been dismissed by the Subordinate Judge of Bhagulpore, upon the ground that the plaintiff has not included in the suit all the joint family properties.
3. The appeal is by the plaintiff, and certain cross-objections have been raised by the defendants to the judgment of the Court below. The family of which the plaintiff and the Thakur defendants are members, is governed by the Mitakshara School of Law.
4. The facts which led up to the suit may shortly be thus stated. One Madan Mohun Thakur had three sons, Jugo Mohun Thakur, Brojo Mohun Thakur and Krishna Mohun Thakur. Jugo Mohun and Krishna Mohun predeceased their father, the latter died childless, but the former left a son, Hari Mohun Thakur, who died in April 1890, leaving two sons, Dgra Mohun Thakur and Pran Mohun Thakur. Brojo Mohun Thakur had four sons, Hero Mohun Thakur, Sri Mohun Thakur, Chander Mohun Thakur and Indra Mohun Thakur. This last mentioned individual as also Hero Mohun Thakur and Chunder Mohun predeceased their father, Indra Mohun died childless, while Hero Mohun left three sons, Nursing Mohun Thakur, Kishore Mohun Thakur and Bhoobun Mohun Thakur, who are the defendants Nos. 2, 3 and 4 in this suit and Chundra Mohun Thakur had a son Nundo Mohun Thakur. In the year 1890 there was a separation in estate between Hari Mohun Thakur, the son of Jugo Mohun Thakur and Brojo Mohun Thakur, and while Brojo Mohun Thakur was still living, a dispute seems to have arisen between several members of his branch of the family. At one time, we find the present plaintiff Srimohun Thakur petitioning the District Judge saying that his father was old, and asking for the appointment of a common manager under the Bengal Tenancy Act. This was naturally opposed by Brojo Mohun, and the application was rejected. Brojo Mohun died in May 1896; and a dispute then again broke out between the members of his family, and we find upon an order of the Collector of the District bearing date the 10th August 1896 that the parties arranged between themselves for the appointment of a common manager. On the 18th September 1896, the District Judge appointed the defendant Macgregor, guardian of Nundo Mohun Thakur, then a minor. This was followed by a general Power-of-Attorney executed by Srimohun Thakur, the plaintiff, Nursing Mohun Thakur, Kishore Mohun Thakur, and Bhoobun Mohun Thakur, the defendants on the 1st October 1896, in favour of Macgregor appointing him manager in respect of the joint properties belonging to themselves and the said Nundo Mohun Thakur for a period of seven years. Macgregor held the position of manager on behalf of all the parties concerned until Nundo Mohun Thakur's death, which took place on the 9th February 1897. Upon this event happening the plaintiff wrote a letter to Macgregor on the 10th February 1897, stating that he was heir to the separate property belonging to Nundo Mohun Thakur, and that he was not agreeable to continue in a state of jointness with the other members of the family, and asking him to open a separate book in respect of his half share of all the collections made of the joint properties.
5. On the 15th February 1897, another Power of Attorney was executed in favour of Macgregor by Nursing Mohun Thakur, Kishore Mohun Thakur and Bhoobun Mohun Thakur, the defendants, the plaintiff Srimohun Thakur being no party thereto, for a period of six years, the terms of this power being generally the same as those contained in the Power-of-Attorney of the 1st of October 1896, to which we have already referred,
6. On the 22nd February 1897, the plaintiff applied to the District Judge for Letters of Administration in respect of the separate estate left by Nundo Mohuu Thakur, upon the ground that he was heir of the deceased, in respect of such property. This application was granted on the 12th May 1897. In the meantime, that is to say, on the 23rd February 1897, the Thakur defendants wrote to Macgregor, in answer to a letter which the latter had addressed to them giving cover to certain letters from Srimohun Thakur, that the separation of the family and division of the property could not be affected without the consent of all the members of the joint family, and, therefore, no effect could be given to the request made by Srimohun Thakur. Shortly afterwards, that is to say, on the 7th March 1897, the plaintiff gave notice to the Thakur defendants, stating that he was not agreeable to remain joint with them, and declaring that from that date he had become separated from them in respect of all the properties in which he was entitled to a moiety share, that he had begun making separate collections in respect of his share of the rents and from that day the joint tehsil had ceased, that the Power-of-Attorney given to Maogregor on the 1st of Ootober 1896 had come to an end with the death of Nundo Mohun, that he did not want to employ him as manager in respect of his share of the estate and that he was going to dismiss him; on the same date the plaintiff wrote a letter to Mr. Macgregor stating that he had separated his share from the shares of his nephews (the Thakur defendants), that by reason of the death of Nundo Mohun Thakur, the power of management granted to him had terminated, and that he was desirous to manage his own share separately and that he gave him notice that from the 8th March following, his services as manager in respect of the plaintiff's share of the estate were dispensed with, and asking him to make over charge of his there therein. Notice to the same effect was given to the Tehsildars on the 8th March 1897, calling upon them to send to the plaintiff his share of the rent separately, and a petition was presented to the Collector of the District on the 13th March informing him about the dismissal of Macgregor.
7. In the meantime, that is to say, on the 10th March 1897, Macgregor wrote a letter to the plaintiff in answer to his letter of the 7th March, stating that, inasmuch as he had been appointed manager by all the members of the joint family, until he received notice from all of them, he was unable to accept the plaintiff's letter as a notice of termination of his management of the joint property, and that, therefore, he should continue to regard himself as manager of the joint family. The letter added that he (Macgregor) was not aware of any legal separation of the family; until such separation was effected, he must decline to accept his (plaintiff's) letter as a discharge of his personal liability under the agreement with him, and that he was unable to make over charge to the plaintiff of any portion of the joint estate.
8. On the 20th March of the same year, the defendants, in replying to the notice issued upon them, stated that they were unable to understand from it what his (plaintiff's) intentions were, that he could not become separate merely by his own choice, and that this could only be done by a formal deed of partition between themselves, or by a suit in Court, and that the manager could not be dismissed at that time, nor was it expedient to dismiss him.
9. It would appear that in the meantime, that is to say, since the issue of the notice on the 7th March 1897, the plaintiff collected some portion of the rents, and with reference to this matter, Maogregor, on the 20th March, that is on the same date that the defendants wrote the letter, to which we have just referred, wrote to the plaintiff saying that he (the plaintiff) had been acting in an unauthorized manner, and requested him not to take any portion of the rents from the Dehat, without his consent, and that if he did do, Macgregor would be compelled to apply to the District Magistrate to bind him down. To this letter, the plaintiff on the 25th March replied stating that he had taken the opinion of Counsel on the subject, that he had been acting in a perfectly legal manner, there being an entire severance of the joint family, so far as his share was concerned, but whether this was so or not, he had full right to determine his (Macgregor's) powers, and so forth.
10. We then find that there were certain proceedings in the Criminal Court between some of the parties in respect of possession of certain property, which the plaintiff claimed to be his exclusive property, and also certain proceedings in the Land Registration Department in connection with the application made by the plaintiff for separate registration of his name in the Collectorate, and they were followed by the institution of the present suit on the 31st August 1897, in which the plaintiff asks for a declaration of his right to a moiety share of the joint family property as specified in the Schedule, A, B, and C, and to the entirety of the properties mentioned in Schedule, D and F respectively, the former being stated to be property exclusively belonging to himself and the latter to Nundo Mohun Thakur; for partition of the joint family properties and for accounts, firstly, of the period covering the lifetime of Brojo Mohun Thakur; secondly, in respect of the period from Brojo Mohun's death to the appointment of Macgregor as manager, and, thirdly, since Macgregor's appointment; as also for accounts in respect of the separate estate of Nundo Mohun.
11. The plaintiff in his plaint refers to the appointment of Macgregor as manager, to his appointment as Administrator to the estate left by Nundo Mohun Thakur, to the notice of separation and dismissal as given to the Thakur defendants and to Macgregor respectively, and then states that the Thakur defendants and Macgregor in concert and collusion with each other, have put forward the claim that the plaintiff was not entitled to separate himself from the joint family without the consent of the Thakur defendants, or without sanction of a decree of Court, as also, that he was not entitled to dismiss the defendant Macgregor from his office as manager, and that the latter was entitled to continue as joint manager of the estate including the plaintiff's share; that the defendants had attempted to prevent, had prevented, and continued to prevent, separate collection of rents being made by the plaintiff in respect of his share; that he has been prevented from receiving his share of certain sale proceeds of indigo; that the Thakur defendants in collusion and concert with Macgregor, have raised various objections to the registration of the plaintiff's name in the Collectorate records, and that in consequence thereof, certain rent claims have become barred by limitation; that Macgregor in collusion with the other defendants; has refused to render any accounts to the plaintiff in respect of his share of the properties and also in respect of the estate of Nundo Mohun; that he has wrongfully collected and received various sums of money on account of the plaintiff's share; that the property Srimani Kita garden was in the exclusive possession of the plaintiff and that Macgregor, in concert with the defendants, set up the claim that it was a joint property and cut away certain bamboos and did other wrongful acts, the result being that the plaintiff has been damaged in connection with the said garden that Macgregor has allowed the Thakur defendants to do other unlawful acts which has caused damage to the plaintiff; that the Thakur defendants have taken wrongful possession of 11 bighas of land in the property, Hosseinbari Kita, which were in the exclusive possession of the plaintiff and out away certain Tal trees standing thereupon; that the plaintiff has thus sustained damage; that the plaintiff has also suffered damage to a considerable extent by reason of the wrongful acts of the defendants generally in connection with his share of the family property; that the Thakur defendants, in concert with Macgregor, have not settled accounts with the plaintiff in respect of the estate left by Nundo Mohun; that certain documents, which were in the plaintiff's possession, were unlawfully removed by the defendant Nursing Mohun in July 1896, but that Macgregor, though appointed a manager of the joint property, did not take any steps to have prepared a list of the said documents, when requested to do so. And the plaintiff states that his (plaintiff's) cause of action arose on the 7th March 1897, when notices were given to the defendants, and he accordingly asks for the various reliefs already indicated.
12. We ought here to mention that in one of the paragraphs of the plaint (paragraph 2) it is stated that Schedules A, B, and C contain a list of the joint properties which the plaintiff has been able to ascertain, but there are other properties both moveable and immoveable belonging to the joint family which he has not been able to ascertain. It will further be observed that though there is in one of the reliefs mentioned at the end of the plaint, a prayer to make a partition by shares, and not by metes and bounds, yet the plaintiff alternatively asks that all the joint properties might be partitioned, and an eight anna share thereof be allowed to the plaintiff in severalty, and as to such properties as are jointly owned with persons not parties to the suit, such directions might be given as to their separate enjoyment as should seem fit to the Court. This last mentioned matter refers to the properties mentioned in Schedule A. which are held by the family jointly with Woogra Mohun and Pran Mohun and in which the family is entitled to a moiety share.
13. Before this plaint was actually filed in Court, the plaintiff presented a petition to the Subordinate Judge on the 28th August 1897, stating that, inasmuch as his claim in respect of immoveable properties has been joined with the claim in regard to other matters, and also because his claims in his own right, and by right as heir of Nundo Mohun Thakur, have also been joined in the same suit, it is necessary to obtain leave of the Court under Section 44, rules (a) and (b) of the Code of Civil Procedure and this leave was granted.
14. The defendants before putting in their written statements in the case presented a petition to the Subordinate Judge, complaining of misjoinder of causes of action, and of parties, by the plaintiff in the same suit, but that officer made an order stating that the matter should be considered after the issues had been settled.
15. The plaintiff subsequently on the 27th November 1897 applied to the Court for amendment of the plaint in respect of certain matters and added certain properties to the schedules annexed to the plaint, and this was accordingly ordered.
16. On the 6th January 1898, the defendants put in their written statements.
17. The defendant Macgregor stated that the suit was bad for misjoinder of causes of action and of parties, that he did not act in concert or collusion with the Thakur defendants, that he bond fide believed that he was bound to continue as manager in respect of the joint family property, in spite of the declaratien made by the plaintiff on the 7th March 1897, and that he the (plaintiff) had no authority to dismiss him from his position as manager before the expiry of the period stipulated in the Power of Attorney. And he also referred to some of the matters mentioned in the plaint as to the sale-proceeds of indigo and so forth and justified his own conduct in relation to those matters and concluded by saying that the plaintiff had no cause of action against him and that his suit should therefore be dismissed.
18. The other defendants, in the first place, averred that the plaintiff bad been managing the joint family estate upon the death of Brojo Mohan Thakur, and also after his death till the appointment of Macgregor as manager and that the suit could not be maintained, until the plaintiff rendered an account in respect of his managership. It was also stated that the plaintiff had omitted to mention in the Schedules A. B. and C. certain properties which ought to have been included therein and included certain other properties which ought to have been excluded, that in the Schedules D. and F. certain properties had been wrongly included which should have been excluded therefrom and included as joint properties of the family, that certain Government Promissory notes as also ornaments left by their grandmother had been left out, that it was not open to the plaintiff as an individual member of the joint family to effect a separation without the consent of the other members and that indeed no separation had yet been effected, notwithstanding the declaration by the plaintiff on the 7th March 1897. They denied any collusion or concert with Macgregor and their liability to account to the plaintiff and also that the property Srimani Kita and eleven bighas of land in Hosainbarri Kita belonged to the plaintiff exclusively. And they averred that the suit was bad for misjoinder and submitted that in the event of a partition being ordered, the properties should be divided by metes and bounds, and not by shares.
19. Upon these pleadings the Subordinate Judge on the 14th January 1898. laid down certain issues for trial. On the 24th of the same month, the plaintiff put in a petition asking that one of the prayers in the plaint, namely, the prayer (O) which related to the accounts during the managership of Macgregor might be amended so as to make Macgregor liable for such sums of money as might be due from him on an account being taken, and, that the issue No. 18, which related to the matter of accounts, might also be amended, and this was accordingly ordered. On the 29th January 1898, the defendants put in a petition for amendment of certain issues, but the Subordinate Judge on the 7th February 1898 declined to accede to this prayer. He, however, at the same time directed a new issue No. 23, being added and that issue was as follows: ' In the event of a decree for partition, if passed in favour of the plaintiff, is it necessary and possible to make a division of any property the subject of the suit by metes and bounds? If so of what property? If not, can there be any special directions as to the separate enjoyment of any property? If so, what and of which property?'
20. The case then seems to have been transferred to the file of another Subordinate Judge, and it would appear that when the plaintiff was examined he was asked certain questions as to certain properties, both moveable and immoveable not being included in the plaint, and as to the ornaments of the defendant's grandmother and certain other moveable properties such as the Government Promissory Notes; and the plaintiff's pleader thought that those properties were not the subject-matter of the suit, and the Subordinate Judge seems to have taken the same view. But notwithstanding this, that officer allowed the defendants' pleader to cross-examine the plaintiff with reference to those matters. This, we may here mention, took place on the 24th August 1898. On the same day a petition was put in by the defendants stating that the plaintiff having asked for a partition, it would be necessary that an issue should be framed to the following effect: ' Whether the plaintiff's suits covers all the properties of the joint family, or some of the joint family properties have not been included in the suit? If the latter, is the plaintiff's suit liable to be dismissed '
21. On the 26th August 1898 the plaintiff put in a petition stating as follows:
That in this suit the plaintiff has sued for declaration of separation and other reliefs as regards all joint properties and in the schedules to the plaint he mentioned them so far as he was able to do. The defendants now contend that some joint properties have been omitted from the schedules to the plaint, but they have not stated what they are. In schedule A of their written statement they mentioned one property, and the plaintiff then informed the Court that the said property was joint, and had been inadvertently omitted from the schedule A of his plaint. Subsequent to the filing of the plaint he amended the schedules to the plaint, and included therein some joint properties which he subsequently was informed had been omitted and were joint properties. The plaintiff has no objection to the Court dealing in this suit with all joint properties, and he, therefore, prays that a Commissioner be appointed to enquire and report whether there are any joint properties, which are not admitted in the pleadings to be such, and if so, what they are, and whether there are any separate properties of the plaintiff and the defendants the Thakurs, which are not admitted to be so. This prayer is in accordance with, and is supported by prayers (D), (3) and (F) of paragraph 28 of the plaint.
22. Upon that, the Subordinate Judge directed that an additional issue, that is the 24th Issue, should be framed as follows:
23. 'Whether the suit covers all joint properties, and whether the plaint is comprehensive (enough) to include all such properties, or the suit is in respect of a portion and not the whole of the joint properties? If the latter, whether the suit is tenable?' And he recorded at the same time that the prayer for the appointment of a Commissioner 'would be considered after the principal issues in the case were determined.
24. The Subordinate Judge, it would appear from the proceedings, took evidence on all the issues, with the exception of certain of them whioh related to the accounts, and in his judgment, he dealt with issues 1, 2, 3, 4 and 24, Upon the issues 1, 2, 3 and 4 his judgment is, as we understand it, practically in favour of the plaintiff, but so far as issue No. 24 is concerned, it is against him. He has accordingly dismissed the suit upon the ground, as already mentioned, that the plaintiff has not included in it all the joint properties.
25. Against this decree, the plaintiff has appealed before us on the ground that the claim for partition was in respect of all the joint properties, and not in respect of any portion of the properties as are mentioned in the schedules annexed to the plaint, and as already mentioned, the Thakur defendants have raised certain cross objections to the judgment of the Court below; and these objections as stated by Mr. Hill, Counsel on their behalf, are as follows:
1st,--That the suit is bad for misjoinder of parties and causes of action, and the claim for damages arising out of individual acts of the defendants could not be included in such a suit.
2nd.--Assuming that every member of a joint family is entitled to claim partition without the consent of the other members, the plaintiff is debarred, having regard to the terms of the Power-of-Attorney in favour of Macgregor, from claiming such partition during the period of seven years for which the power of management was given to that person.
3rd.--That the notices given by the plaintiff to the defendants on the 7th March 1897 did not ipso facto create a severance of the joint estate, and such severance being the basis of the suit, the plaintiff cannot now get a decree for partition by definition of shares.
4th.--The plaintiff having refused to bring in the whole joint estate in this suit for partition, and having asked for a partial partition thereof, the suit cannot succeed.
26. The points raised by Mr. Hill embrace the whole of the matters that have been argued before us by the learned Counsel on either side and it would be convenient to deal with them in the order in which we have stated them.
27. First, as to the misjoinder of parties and causes of action. Looking at the plaint as a whole, there can, we think, be no doubt that the real relief which the plaintiff asks is partition, whether that partition be by definition of shares or by metes and bounds, and so far as this matter is concerned, there can equally be no doubt, upon the evidence in this case, as also upon the attitude taken both by Macgregor and the Thakur defendants, that the plaintiff has a common cause of action against both sets of defendants. They evidently made a common cause to defeat the claim of separation and severance made by the plaintiff, and it is their common case, that during the seven years for which the power of management was given by the plaintiff and the Thakur defendants, the former is not entitled to bring to a termination the said power of management, and to separate himself from the family so as to obtain a separate share in the family property. This is perfectly plain, not only by the letters which they wrote in reply to the notices given by the plaintiff, but also by their conduct in the criminal cases, and in the Land Registration oases, to which we have referred already, as also from the deposition of Macgregor himself.
28. Then as regards the accounts that have been claimed in this case from the defendants, as far as the period covered by the managership of Macgregor is concerned, he may be taken to be primarily liable, and it appears upon the evidence that he had been borrowing various sums of money from different individuals to pay the debts of the different members of the family, and also certain debts which are said to be joint, but not indisputably joint. The Thakur defendants are intimately connected with, and interested in the taking of these accounts, and it is obvious therefore that both Maogregor and the Thakur defendants should be joined together in one and the same suit.
29. Then as regards the accounts for the period not covered by the management of Maogregor, it may no doubt be said that Macgregor is not a necessary party to such accounts. But in this suit for partition (and the main object of the suit is partition), the whole of the accounts between the parties during the entire period of their jointness must be gone into, inasmuch as there could not be separate actions for accounts of the different periods of time. It is impossible to say that the suit is bad because the accounts for the said periods of time have been joined together. No doubt, in making a decree, after the accounts of the different periods of time have been gone into, the Court shall have to distinguish between the period for which Macgregor is liable, and the periods for which the defendants are liable. And we may here mention that there is a cross-claim by the Thakur defendants for accounts against the plaintiff and for this they brought a separate suit against him, which suit, we understand, is also now pending in appeal before this court.
30. As to the other reliefs claimed in the plaint, they do, as it were, arise out of the joint transactions between the parties, and though there are individual acts of the defendants of which the plaintiff complains in his plaint and for which he asks for damages in some instances against the Thakur defendants only, it may well be said that Macgregor is not concerned with such claim for damages. But at the same time it will be observed that the plaintiff also claims damages against all the defendants jointly by reason of their joint wrongful acts. Such being the case, it seems to us that it would not be right to hold that the suit must be dismissed by reason of the damages claimed against the Thakur defendants or one or other of them, that being rather an insignificant part of the case. At the same time, it does appear to us that it is necessary that the plaintiff should be called upon to withdraw his claim for such damages as have been claimed against the Thakur defendants only, or any one of them, and indeed Mr. Bonnerjee on behalf of the appellant stated before us that his client was prepared to withdraw his claim in respect of damages sustained by reason of the Thakur defendants having unlawfully out away certain tal trees.
31. Then as regards the claim for documents, these documents relate to the properties in respect of which this suit has been brought and, if the plaintiff'is entitled to maintain his suit against Macgregor and the Thakur defendants jointly, it is impossible to say that, though the documents are said to have been carried away from the plaintiff's possession by one of the Thakur defendants, yet the production thereof by such of the defendants as may now be in possession thereof is not a necessary part of this suit for partition.
32. We may here mention that so far as Nundo Mohun's separate estate is concerned, which the plaintiff claims as heir and administrator, Mr. Hill on behalf of the respondents very frankly admitted that the claim in respect of such separate estate was rightly joined with the claim in regard to the joint family properties We mention this matter, because the Subordinate Judge, in one portion of his judgment, seems to have a doubt whether this could be done:--Upon this ground we overrule the defendant's objection as to misjoinder.
33. We then turn to the second point urged by Mr. Hill. On turning to the Power-of-Attorney executed by the plaintiff and the Thakur defendants in favour of Macgregor on the 1st October 1896, we find that it provides as follows:
We hereby appoint William Ord Macgregor, Esquire, now of Bhagulpur, who has been appointed by the District Judge of Bhagulpur, guardian of the property of the said Babu Nundo Mohun Thakur, minor, under the Guardian and Wards Act, 1890, to be our manager and attorney, with power to manage and conduct our joint affairs as follows, and that notwithstanding this appointment or that of guardian as aforesaid by the said District Judge of the property of the said minor, we shall remain members of a joint undivided family together with the said minor Nundo Mohun Thakur.
34. 'The said manager is appointed for a term of seven years from the 1st September 1896, and he will receive a monthly consolidated salary of Rs. 1,000 inclusive of house-rent and travelling and other allowances,' and so on, ' and we shall not be entitled to dismiss the said manager during the said period of seven years, except for gross misconduct or dereliction of duty, and should we dismiss him within that period for any other cause the said manager shall be entitled to receive from us six months salary at the rate aforesaid from the date of such dismissal.' Then the document states the authority given to the manager, which it is not necessary here to mention.
35. The question here arises, in the first place, whether the parties agreed that they should remain joint for seven years. Now it seems to us that there is no such distinct covenant The first portion of the document no doubt uses the words: ' Notwithstanding this appointment or that of guardian as aforesaid by the said District Judge of the property of the said minor, we shall remain members of a joint undivided 'family together with the said minor Nundo Mohun Thakur,' but, as we understand it, it was merely meant to indicate that the joint and undivided estate of the family should not be disturbed by reason of this appointment of a common manager. We do not think that beyond this, the parties intended to covenant that they should remain joint after such appointment, and it would not be competent to them to sever that jointness. Then it will be observed that the document does not debar the parties from dismissing the manager, though it provides that should they dismiss him at any time within the seven years, he would be entitled to receive six months' salary from the date of such dismissal. There is nothing, so far as we can see, in this document which debars any one of the parties from putting an end to the management, though it may be that he would, in that event, be bound to make good the whole six months' salary, unless such dismissal is agreed to by the other persons concerned.
36. Turning then to another branch of the matter, suppose there was a covenant between the parties that they should remain joint for the full term of seven years for which the manager was appointed, is it not competent to any one of the parties to withdraw from that covenant, and to claim a portion? Though it may be said that it is competent to parties to enter into an agreement not to divide their joint properties for a limited period of time, and not in perpetuity, yet such an agreement must be for sufficient consideration (see Badha Nath Mukerjee v. Tarak Nath Mukerjee (1876) 3 C.W.N. 126) Now what was the consideration for this agreement. All that appears upon the evidence in this case is, as already mentioned, that for sometime together the parties had been disputing amongst themselves, and this eventually led to the appointment of Macgregor as manager for seven years. It may be said that there was a good consideration for this appointment, but it could not be said that there was any consideration for the agreement, which is now set up, that the parties should not separate from each other for seven years together.
37. Upon this ground, we think that the agreement could not now be insisted upon so as to debar a partition, and we may here add that Nundo Mohun having died it is extremely doubtful whether it could be rightly said that the agreement continued to subsist.
38. We now proceed to deal with the third point raised by Mr. Hill, namely, as to the effect of the notices given by the plaintiff on the 7th March 1897. The learned Counsel has argued that a bare declaration by a member of a joint Hindu family without anything more by way of a suit and decree obtained in such suit could not create a severance of the joint estate, and a larger number of authorities have been quoted on both sides upon this matter. But we do not think it necessary to discuss this question as a matter of law, for it has been stated by Mr. Bonnerjee on behalf of the appellant that, if the plaintiff is not held bound by the debts contracted by the Thakur defendants and by Macgregor for their benefit since the 7th March 1897 he would not insist upon a declaration that he became separate in estate on that date by reason of the notices given by him. It appears upon the evidence that since the 7th of March 1897, the plaintiff had been attempting to collect his share of the rents and conducting his business separately, while, on the other hand, the Thakur defendants have been contracting debts on their own account. Mr. Macgregor has also been contracting debts with the view to enable him to pay the debts of those defendants, as also as he states, to pay joint debts, though those debts are not undisputed debts. That being so we think that, in the event of a decree for partition being made in this case, and an account being ordered, such debts as the parties have since the 7th March 1897 contracted on their own account, or on their own responsibility, should not be recognised as joint debts, nor should such debts as Macgregor has incurred for the benefit of the Thakur defendants only, be so regarded, though no doubt if any debts have been incurred by him for any purpose of all the members of the family, including the plaintiff, such debts should certainly be taken into account in adjusting the rights of the parties.
39. As to the question raised by Mr. Hill whether the plaintiff could get a decree for partition by definition of shares and not by metes and bounds, all that we need say is that the plaintiff did ask for partition by metes and bounds as an alternative relief though no doubt he primarily asked that such partition should be by definition of shares. Mr. Bonnerjee, however, on behalf of the appellant, has stated before us that his client would be prepared to take a decree for partition by metes and bounds in respect of all the properties which are held jointly by the plaintiff and the Thakur defendants, and in which the other branch of the family, namely, Woogra Mohun and Pran Mohun, has no interest; but that, in regard to those properties to which the other branch of the family is jointly entitled the only decree that could be made would be for partition by definition of shares, there having been no partition by metes and bounds between the two branches of the family. We think that this is the proper course to take. We do not think that upon the plaint as framed we could refuse the plaintiff a decree such as Mr. Bonnerjee has now asked for supposing he is entitled to a decree for partition in this case.
40. Lastly, we come to deal with the question upon which the Court below has dismissed the suit, and this is the last point raised by Mr. Hill.
41. We think, upon a consideration of the plaint, that the claim was for partition of the entire joint family properties though no doubt certain properties only were specifically mentioned in the schedules annexed to the plaint; and though no doubt, at one stage of the case, to which we have already referred, that is, on the 24th August 1898, the plaintiff's pleader was rather of a different opinion so far as regards the properties not specially so mentioned in the schedules, yet we find that two days afterwards, namely, on the 26th August, the plaintiff presented a petition to the Subordinate Judge stating that he had no objection to the Court dealing in this suit with all the joint properties, and asking that a Commissioner might be appointed to enquire and report whether there were any joint properties which were not admitted in the pleadings to be such, and, if so, what they were and whether there were any separate properties of the plaintiff and the Thakur defendants, which were not admitted to be so. The Subordinate Judge, however, contented himself by simply adding the 24th issue as one of the issues to be tried out, and saying that as to the appointment of a Commissioner an order would be made afterwards. But no order seems to have been made at any time after. It seems to us that though the conduct of the plaintiffs or of his pleader might be open to the observations which have been made before us by the learned Counsel for the respondents, yet we are unable to say that the claim for partition was not in respect of the entire joint property, and that before the Subordinate Judge dismissed the suit, he ought to have acceded to the prayer of the plaintiff for the appointment of a commissioner for the purposes mentioned in the petition of the 26th August 1898.
42. As regards the ornaments belonging to the plaintiff's mother, his case seems to have been that they belonged to him by succession and that the defendants have no concern with them. Whether that is the right view or not it is not necessary to express any opinion at the present stage. The matter is one which has to be enquired into and determined.
43. Then as regards the Government Promissory Notes, the plaintiff made no secret of the matter and the only thing that was necessary to be done was to include such Promissory Notes in the suit; and we are unable to say that the plaintiff at any time declined so to include them. Nor do we think that the omission on the part of the plaintiff to make a formal application to amend his plaint, such as the Subordinate Judge says he ought to have done, is a circumstance which by itself makes it necessary to dismiss the suit, when we find that on the 26th August 1889 he stated that a partition might be made of all the properties, which should be found to form the joint estate.
44. Upon these grounds we think that this point cannot be supported.
45. For these reasons we are of opinion that the decree of the Subordinate Judge as it now stands, cannot be maintained, and that it should be set aside, the case will be sent back to the Court below with direction that evidence upon the issues, which have not been taken, may now be taken, and all the questions arising between the parties, except such as we have dealt with, may be determined, and a decree such as the plaintiff may be entitled to, be made. But it must at the same time be understood that before the Subordinate Judge commences the enquiry the plaintiff must put in a petition excluding from the suit any claim for damages which is not directed against all the defendants jointly and also a petition specifying all the joint properties of the family which have been omitted from the schedules to the plaint, and ask that such properties may be regarded as the subject matter of the suit. Other properties, which upon investigation, will be found to partake of the same character, namely, that of joint properties must also be brought into the hotchpotch and a decree made.