1. Ganesh Chandra Shaw, a Hindu, governed by the Bengal School of Law, died in 1685 leaving him surviving eight sons and his widow, Nittyakumari Dassi. The second son, Gour, brought a suit in this Court (No. 73 of 1885) for partition. The suit was referred to arbitration and resulted in an award which was confirmed by the Court on the 18th August 1887. By that award the arbitrator 'divided and partitioned the said estate into nine equal parts' and 'allotted one of such parts or shares to each of the parties, as per schedule G hereto annexed, to be held and enjoyed by them absolutely separately, but as the defendants Hari Narain Shaw, Kauai Lal Shaw, Ranoo Lal Shaw, Rashbehary Shaw and Panna Lal Shaw are infants and they have expressed a desire by their mother and natural guardian, Srimati Nittyakumari Dassi, that they will continue to live together joint is food and estate. I have only declared their shares to be Rs. 9,890-5 10 each, but have not divided the same by metes and bounds (the said Srimati Nittyakumari Dassi being only entitled to a widow's estate in such shares).' The schedule to which reference is made in the passage just quoted shows that of the adult sons of Ganesh, Gour had already received more than his share and Sashi and Nangteswar were now being given certain specific properties and moveables to hold in severalty; whereas to the mother and her five infant sons, taking those six people as one collective whole, certain other assets were allotted without any distribution of such assets between the six so as to answer individual shares, Each of the infant's shares as well as each adult's share is defined by money value in an addendum described as 'Explanation of schedule G,' which shows the arithmetic of the arbitration. It is not on the facts really contestable that Nittyakumari Dassi and her infant sons did in fact continue to live together as members of one family as contemplated by the a yard, nor that the three elder sons became separate therefrom and from each other in fact as well as in law, Nittyakumari having recently died intestate, two questions now arise upon this position.
2. The first question is as to the nature during her lifetime of the right of her sons to take her share among them at her decease. It is contended by the eldest son that until her death there was no more than a mere apes succession is as regards her share, that no son of hers in her lifetime had an interest in the reversion of her share but only a change nr possibility within the meaning of Section 6, sub-clause A, of the Transfer of Property Act, On this point, Counsel for the younger sons tendered an issue whether the share allotted to Srimati Nittyakumari Dassi by the award of the 12th August 1887 was held by her as a Hindu widow or as a Hindu mother, but as Counsel for all parties were agreed that it was held by her as a Hindu mother it became unncessary to frame this issue. In my opinion neither epithet is precise, but there is no room for dispute as to how and why she obtained her share; and the effect of authority binding upon me is, that the share in question is an interest in lieu of the right to maintenance which upon partition amongst sons is carved out of the son's shares and at the death of the mother goes back to and becomes part of the shares out of whish it came, I accept as the law upon this question the decision in Sorolah Dossee v. Bhoobun Mohau Neoghy 15 C. 292 : 7 Ind. Doc (N. S.) 779, and I think it inconsistent with the contention that is now put forward on behalf of the eldest son.
3. The second question is, whether the infant sons remained united and undivided in spite of the partition suit brought by Gour in 1885. In a case which was one of partition by agreement without reference to any Court, the Privy Council in Balabux v. Rukhmabai 30 C. 725 (P. C.) : 30 I. A. 130, 7 C. W. N. 642; Bom. L. R. 469 : 8 Sar. P. C. J. 470 (P. C.) said: 'There is no presumption when one coparcener separates from the other, that the latter remain united. In many cases it may be necessary, in order to ascertain the share of the outgoing member, to fix the shares which the other coparceners are or would be entitled to, and in this sense the separation of one may be said to be the separation of all. And their Lordships think that an agreement among the remaining members of a joint family to remain united or to re unite must be proved like any other fact.' In the present case the question is one of partition by authority. The mother and the infant sons were impleaded as defendants in a partition suit and when partition was sought against them that arbitrator purported to give effect to their desire, that they will continue to live together joint in food and estate.' He made no reference to worship and nothing has been said about it to me either in evidence or in argument. Living together may certainly be consistent with a severance of interest and a joint enjoyment of property may not mean a complete junction of estate, but in this case the evidence, in my opinion, shows an intention to remain joint. The defendants are resisting partition inter se; the Court refuses to thrust it upon them; and in the presence of the elder sons declares this position. The award states the full intent of jointness as theretofore and the conduct of the parties is, in my judgment, consistent with that, It is true that the wording of parts of the award and also the wording of that part of the order confirming the award which appointed a Receiver of the shares of the infants is, from this point of view, not absolutely accurate and precise. It does seem to me, however, that the part of the award which must be given effect to is that part in which the arbitrator expressly declares the intention which be has in making only partial partition and I find it very difficult to suppose that the phrase 'they will continue to live together joint in food and estate' could have been need save with the intention of stating that these parties were to remain undivided. I think, therefore, that that was the position created by the award which was confirmed, The elder sons by their Counsel object that the mere issue of a writ by one co-parcener claiming partition effects a separation by itself and that a minor cannot make an agreement to re unite. This, if it be sound, is a contention which carries with it very serious and far reaching consequences---consequences which I do not find to be laid down as law in the text books or decided safes. If the fall logic of this contention be correct, then any single coparcener entitled to partition can always by issuing a writ compel the minor co-parceners into separation from all the others and all the other co-parceners into separation from the minors. Farther, no adult co-parcener in such circumstancess can become divided even if he so desires save upon the terms of bringing about such consequences as between the minor and other parties, and the Court itself would have no way of preventing this.
4. Now, the ob ervation as to minors which was made in the Privy Council case already sited is to be read in connection with the assumptions of fast upon whish it was made. These were that the minors' father had separated from his brothers by agreement and died not long thereafter, whereupon his widow and child went to live with one of the brothers. This latter fact was put forward as a basis for a case of re union and it was with reference to that that the observation was made, No case, certainly no Bengal case, be far as I san find, has pushed abstract logic to colclusions so wide and so serious as I have indicated. The question here is, whether the infant sons remained undivided inter se, What then is the position? As I understand it, any co-parcener under the Bengal School bag a right to partition. It is not necessary that there should be an agreement because it is a right capable of being exercised by any one of the parties who has the right to separate his share from the share of all the others, and in that sense the issue of a writ being an unequivocal declaration of intention carried out in condust may be said to effect the partition by itself. But the claim of one member to have a partition does not mean that the other so-peceners are ipso facto divided as between themselves. On the contrary, the position of the minor in such cases is this; a partition is in general not in the interests of a minor; when one co-parcener claims to separate, it is the duty of the guardian of the minor, who has not any right to object to such separation, to make as good and beneficial arrangement in the minor's interest as he possibly sin. If the arrangement be fair in method and result, the arrangement will bind the minor's estate. By arrangement the partition may be partial as regards the parsons separating. Because the right of A to become separated from B and C is absolute, one would suppose prima facie as the mere converse of this, that if B and C bsing adults so desire they remain joint with each other, and if both are minors the Court in decreeing partition may direct that they continue undivided inter se. If I am right in my construction of this award of the 12th August 1337 and of the conduct of the parties thereafter, I sea no reason to doubt that this matter having been submitted to arbitration, the question is a question not of agreement to reunite on the supposition that all parties were divided, but of an arrangement made with proper sanction under whish aspiration claimed by the elder brother was partial as regards the persons interested in the family property. I think, therefore, that the infants remained in the position of undivided brothers and that the elder sons became divided from the infants and in particular from Rashbehary, Apart from the transaction whish is the main subject of contention and whish took place in 1904, three things have happened since the award of 1887 was confirmed. First, Rashbehary, one of the five infant sons, died in that same year intestate leaving Nittyakumari, his mother, as his sole heiress for the estate of a Hindu mother. Secondly, Nangteswar, the third of the elder brothers, who had attained majority before the award of 1887 was confirmed, died before Nittyakumari, but after the transaction whish I am about to consider. Thirdly, Nittyakumari herself died in 1919, I gather from the documents that Gour is also dead, but direst proof as to this is I think omitted from the evidence before me.
5. In 1899 Hari, the eldest of the five sons who in 1887 were infants, brought a partition suit in this Court (No. 85 of 1899) against his mother and his four younger brothers. By his plaint be alleged against his mother that part of the corpus of the collective share left undistributed by the award of 1887 had been improperly paid to Nangteswar, the third of the separated sons, by way of loan to him; but the eldest son, Sashi, plaintiff in the present suit, is not charged as implicated in any matter of complaint. All parties joined in a petition asking for payment to Hari and Ranoo (now of age) their one-sixth shares in the money and securities and for a direction that the mother should pay to Hari one-sixth of the net rents of the immoveable estate with certain adjustments. This was referred to the Registrar for enquiry and report as to whether an order as asked be for the benefit of the infants. Before the Registrar, the terms were modified and before the Court thereafter they were modified again. Kauai had by now attained majority leaving Panna as the only minor. The consent decree of 3rd January 1902 directed payment to Hari and Ranoo of their one-sixth shares of the money and securities and also that the immoveable properties should after the death of the mother be divided between the parties in equal shares. This decree has of itself no force or effect whatsoever as regards the elder brothers who were not parties. On the 27th August 1903 a petition in the same suit was presented by the mother and Panna who by this lime apparently had come of age. From this it appears that Hari, Ranoo and also Kanai had each been paid his one-sixth share of the money and securities. Panna now asks for payment of his share likewise and the mother asks for payment to her of the corpus of her two one-sixth shares in the money and securities, the one-sixth she got in 1887, and the one-sixth she inherited as heiress of Rashbehary. In addition, the Court was asked to confirm the provision in the previous consent decree as to the immoveable property, namely, that on the mother's death it be divided between the parties to this suit only' in equal shares. These orders ware sought on the strength of the consent of all the sons: and Soshi, Gaur and Nangteawar, the divided elder sons, signed their 'consent to the prayer of the foregoing petition.'
6. On the 28th August 1903 the Court ordered Panna's share in the immovaeble estate to be paid to him, but refused to make any farther order until further and better grounds were shown.
7. The mother returned to the charge on the 26th January 1904, By affidavit of that date she says that she wants the money in order that she may keep it till her death and make a Will providing for two young grand-daughters who are to live upon the interest, and as each dies, one half is to go book to the estate of Ganesh and become divisible among his heirs. This remarkable proposal was thought to be in some danger of meeting with criticism or possibly with incredulity on the part of the Court' and in any event affected in no way the immoveable estate. The affidavit states, however, 'I have received the consent of all my sons for the withdrawal of the said several monies and also for the purpose of the modification of the decree mentioned in the petition herein and they, my said sons, are alone interested in the said money.' Bashi, Gour and Nangeteswar, describing themselves as parties to the suit to 1835, swear a joint affidavit on the 12th January 1904 'that we have understood the contents and meaning of the foregoing affidavit of our mother and we consent to her obtaining the order she prays for should it please this Hon'ble Court to grant the same.' The order prayed for is that asked for by the previous petitions.
8. Now, Hari and Panna have given evidence before me. Hari in his evidence says that after he had instituted his suit in 1899 he got information that Sashi and Gaur had after his father's death misappropriated certain stock in trade belonging to his father's wineshops; that he had some evidence, or at least soma witness upon this; that he threatened to have the partition of 1885 re-opened; that this was a real and bona file claim on his part and that after many family discussions, the abandonment thereof was part of the consideration verbally arranged for the agreement by Sashi and Gour to give up all claims to the mother's two sixths share after her death, Another part of the arrangement was that Hari would sink his claim pleaded in Lib suit in respect of Nangteawar's improper borrowing from the undivided estates. Hari's evidence in no way suffices to establish the truth of the allegations which he says he made. As to his having made them and as to the verbal dissuasions and alleged verbal agreement, Hari's evidence is sadly leaking in precision and the evidence of his younger brother is very faint corrobaration. I view the evidence of both with great suspicion not merely because of the way in which it was given but because of the difficulty in making real or probable to myself the story as it is told. The dates in this case are very important, and when I some to consider the documents in connection with the suit of which I have just been speaking, I find that in no single document was it ever put forward to the Court that there claims were being compromised as part of the agreement in connection with the reversion to the immoveable estate, This part of the story is no more than verbal evidence of a verbal bargain many years ago that these brothers would release their claims to the mother's share after her death.
9. On the 14th April 1914 the Court made the order asked for, prefacing the same by a recital of the consent of Sashi, Gour and Nangteswar to the petition and of their subsequent affidavit repeating their consent. It ordered that the rights conferred by the consent decree of 3rd January 1902 as to the division of the immoveable property after the mother's death 'between the parties to this suit only in equal shares' do stand.
10. The question for decision is restricted to the share which the mother took in 1885 on the partition amongst her sons. As to that share, is the consent order of 14th April 1914 valid and binding as against the elder brothers or their representatives in favour of the younger brothers?
11. I have to consider the matter in the light of Section 17, Sub Section 15 C. 292 : 7 Ind. Doc (N. S.) 779, Clause (b) and of Section 49 of the Indian Registration Act (XVI of 1908). The first question must be whether the consent order operates as an estoppel by record or res judicata. Special reliance is placed by Counsel for the elder brother upon the decisions in this Court where parties to a suit have compromised matters in issue in the suit together with other matters in difference between them. These authorities are said to show that even when both classes of matters are dealt with together as one compromise, so that the arrangement of the matters not in suit is part of the consideration for the arrangement of the matters that are in suit, and even when both classes are put before the court to be dealt with by its order, the order when made is without jurisdiction and wholly ineffectual in so far as it deals with matters not comprised in the pleadings. There is a considerably body of judicial decision upon this branch of the law. Of cases technically binding upon me, there are two decisions of the Privy Council, but what is said on this matter is not in either case the actual basis of decision.
12. The two cases are Bindesri Naik v. Ganga Saran Sahu 20 A. 171 : 2 C. W. N. 129 : 25 I. A. 9 : 7 Sar. P. C. J. 273 : 9 Ind. Dec. (N. S.) 471 (P. C.), Franal Anni v. Lakshmi Anni 22 M. 508 (P. C.): 1 Bom. L. R. 394 : 3 C. W. N. 485 : 26 I. A. 101 : 9 M. L. J. 147 : 7 Sar. P. C. J. 516; Ind. Dec. (N. S.) 363. These eases, however, have been interpreted in this Court in the light of a somewhat strict construction of Section 375 of the Cede of 1882 and of Order XXIII, Rule 3 of the present Code, in particular, there are two cases of great importance: Birbhadra Rath v. Kalpataru Panda 1 C. L. J. 388, and Gurdeo Singh v. Ohandrikah Singh 1 Ind. Cas. 913 : 36 C. 193, 5 C. L. J. 611. Somewhat difficult to reconcile with these last two cases are the eases which say that any arrangement as part of the consideration for the agreement as to matters in suit can be validly recorded and decreed as relating to the suit whether they otherwise relate to the suit or not. For this proposition there is the decision in Gobinda Chandra Pal v. Dwarka Nath Pal 35 C. 837 : 7 C. L. J. 492 : 12 C. W. N. 849, and the safes there sited. Now, in my opinion, the part of the decree which purported to deal with the rights in the mother's shares after her death is not, upon any fair construction of Section 875, matters which relate to the suit. The suit was a partition suit for the purpose of dividing up a given collective share left undivided by the award. That snit was brought in the mother's lifetime, and the ascertainment of what would be rights of the sons or other persons after the mother's death was no part of its scope. So much so is this true, that when it was thought desirable to bring that question into the ease, the parties necessary for so doing were not before the Court. At a time when none of the elder eons had been made a party, what happened was that in dealing with the question of payment by the Receivers to the mother of the corpus of the moveable estate, this other matter was put in as an entirely foreign matter introduced not by the consent of the parties jointly but by the consent of persons not parties at all, Unless decisions which say that compromise decree is to be confined to so much as is necessary in order to dispose of the conclusions of the suit, are to be abrogated altogether, I cannot bring this part of the compromise decree within the scope of Section 375. There is no question here of the Court granting a form of relief which has not been asked in connection with the subject matter of the suit. I thick this is a bad case of the abuse of an existing legal process for the furtherance of ends with which the suit as a suit was in no way concerned. In some of the decisions, Section 875 has been applied by making a distinction between property in suit and properly extraneous to the litigation. Where a suit is merely for the recovery of specific properties, that distinction will be adequate and will be equal to the distinction between matters which relate to the suit and matters which do not. In come eater, however, suits are not for tie recovery of property but to establish particular rights and I certainly prefer the opinion expressed in the case reported as Gobinda Chandra Pal v. Dwarka Nath Pal (7) to the effect that the facts have to be locked at as a whole in order to decide whether matters have been introduced into the suit that do not relate to the suit. In the view that I take of this matter, it seems to me that the conclusion according to the cases is that this part of the decree was without jurisdiction and does not operate as res judicota. The next Question is whether the infant tens can found upon the petition and affidavit, as being an agreement which operates in their favour, a release of the elder brothers' rights. According to the Calcutta authorities, if such a petition and affidavit do purport to have that effect, they are not (?) valid as part of a judicial proceeding but invalid for lack of registration; it, therefore, seems to me that the position of the case becomes this. There is no evidence in the petition or in the affidavit of a family arrangement such as is spoken to by Hari; and his younger brother's evidence of that family arrangement is extremely weak, vague and unreliable. I do, not hold and I do not think that the agreement pleaded was a sale or exchange within the meaning of the Transfer of Property Act, Assuming it to be open to me to give effect, in the circumstances, to a verbal agreement if I find it to be proved, I have no hesitation in saying that in a case where one brother alleges against another that by a verbal agreement his rights in reversion to a share have been released I should require much better proof than I have here, I would only act secundum allegata et probata; the evidence and the pleading here are very discrepant. In my view, there is no reason for thinking that anything more happened, according to the documents, than that the brothers gave their consent to get a decree which I now think to be an invalid, decree. I find that the younger brothers fail altogether in so far as they go outside the documents and endeavour to prove to my satisfaction a family arrangement alleged in the written statements of Hari, Kanai and Ganesh.
13. It appears to me that, in these circumstances, in spite of the decree in the suit of 1889, the direct result upon the evidence and upon the law is this, that so far as regards one-sixth share reserved to the mother by the award of 1897, all the brothers out of whose shares that share was carved out must be allowed in this suit to make their claim.
14. As a matter of fact, I think the contest has been occasioned by the acts to which the elder brothers were parties. I think they have done very well in getting out of the consent decree that they so carefully endcavoured to get into, I shall not interfere with the ordinary terms, as to costs.
15. I declare the shares as set forth on the piece of paper which I shall now sign for identification and I shall direct the Commissioner of Partition to take an enquiry and account against the defendant, Hari, as to the rents, profits or income of any part of the properties in the plaint mentioned which have some to his hands sin'e the death of Srimati Nittyakumari Dassi, as to what are the properties belonging to the undivided share referred to in the award and what now represents that collective share. Then, this division into shares will be of the estate as so ascertained.
16. I will give a direction to the Commissioner of Partition authorising him in his discretion to carry-out an immediate sale by public auction with liberty to the parties to bid at the sale.