1. This appeal has arisen out of a suit for partition. The property in question consists of the bahir barhi of the parties, including certain tanks. There were three parties,, having ejmali properties, which were originally partitioned in 1269. The plaintiffs have a raiyati right in the one-third share of the original joint property. At the partition in 1269, the properties now in suit were kept joint. Subsequently, in 1918, the plaintiffs brought a title suit in respect of five plots of land which they claimed on the basis of a chita of 1267 and the bantaknama of 1269, by which the original partition was made. That suit of 1918 was compromised in 1920 and a decree was passed under the terms of which the plaintiffs and the defendants down to their heirs and representatives in interest should for ever observe and carry out the covenants contained in the deed of compromise, Ex. 3, in which it was noted that, subject to the modifications made therein, the terms of the bantaknama of 1269 would be fixed and inviolable for ever. The present suit for partition of the bahir barhi and of the properties which were left joint in the original partition and by the decree of 1920 was decreed in the Court of first instance, but was dismissed in the lower appellate Court on the ground that the suit was barred by estoppel and res judicata. The question raised in this appeal is whether, in fact, this suit for partition is so barred.
2. For the appellants, it is contended that the suit is not barred by the decree of 1920 or by the compromise arrived at that time, because that compromise is void as transgressing the rule of perpetuity. The terms of the decree also, which go beyond the scope of the suit, are not valid without registration. Moreover, it is said that the decree is defective, in that all the parties to the suit did not join in the compromise. In support of the contention that the decree of 1920 was void, as transgressing the rule of perpetuity, the appellants relied on the case of Ramlinga v. Viru Pakshi (l883) 7 Bom 538, in which it was held that an agreement between co-parceners never to divide certain property is invalid under the Hindu law as tending to create a perpetuity. In the judgment of this case the case of Rajender Dutt v. Sham Chund Mitter (1880) 6 Cal 106 was referred to with approval. In Rajender's case (1880) 6 Cal 106 it was held that where, by an agreement entered into between five brothers, who formed a joint Hindu family, it was provided that none of the parties, nor their representatives, nor any person, should be able to divide the real and personal property, belonging to the family, into shares, the general scheme of the arrangement between the brothers was such as could only be binding upon the actual parties to it, not upon a purchaser from one of the parties. It was not therefore held that the whole of the agreement was void, but that it was only binding on the actual parties thereto and not on their representatives or descendants. In the present case it is admitted that, in 1920, there was an agreement between the parties and that, under the terms of that agreement, the bahir barhi was to be kept joint. Detailed arrangements were made, according to which it was to be jointly enjoyed by the parties, and it is clear, as the lower appellate Court points out, that the whole partition, which was made at that time depended upon the common use by all the parties of the bahir barhi.
3. There was a clear contract entered into between the parties at that time that the bahir barhi should remain joint. It would be entirely unjust to the defendants if the plaintiffs are now allowed to turn round and to go back upon the original arrangement, upon which that partition was founded. This is a case to which the doctrine of changed circumstances is applicable. At that time, according to the terms of the agreement then entered into, the defendants were induced to agree to a compromise of the suit on the condition that the bahir barhi should remain joint land it would not be right to allow the plaintiffs now to appropriate to themselves a separate portion of this property, which they contracted to keep joint. It is true that this joint property was not included in the suit of 1918 and therefore there is no question of res judicata. But the Court below was right in holding that the plaintiffs by their agreement at that time and the contract which was then entered into with the defendants were estopped from suing for partition of the properties now in suit which it was then agreed should be kept joint. The fact that the decree of 1920 went beyond the scope of the suit seems to make no difference, because there is no doubt that this agreement that the bahir barhi, etc., should remain joint, was a part of the consideration of that compromise and, as such, it formed an essential part of the decree against these defendants.
4. As regards the fact that some of the parties did not join in the compromise and the suit was decreed against them ex parte, the decree is still in force and, as far as the plaintiffs are concerned, it is certainly binding as against them. They cannot be allowed now to say that the compromise, which they then entered into with the defendants and the decree which was passed according to that compromise, have, no binding effect on them. This appeal is, accordingly, dismissed with costs.
5. I agree.