1. On the 30th May 1897, Satya Doyal Banerjee, a Hindu resident of Tebnipara in the District of Hooghly, died possessed of an estate of considerable value in respect of which he had made a testamentary disposition on the 11th January 1897. He left a mother, a widow, three sons and four daughters. On the 14th August 1897, his first two sons, defendants in the present, suit, took out probate of the will of which they were the executors. The third son who at the time of the death of his father was an infant, attained majority in October 1905. In May 1904, the two major sons and the infant son represented by his father-in-law made a partition of a considerable portion of the immovable property left by the deceased. It was arranged between the parties at the time that the private partition would be subsequently affirmed by a decree of Court and that meanwhile the parties were to take and continue in separate possession of the properties partitioned. The plaintiff took possession of lot No. 3 as described in schedule A to the plaint; the first defendant., took lot No. 2 of that schedule and the second defendant lot No. 3. The plaintiff alleges, and his allegation is not disputed by his brothers, that since these allotments were made and possession taken by the parties, each of them has laid out capital for the improvement of his share, and has in some instances granted long leases of portions of his property. Subsequently in August 1904, other properties were similarly partitioned and possession was taken by the brothers, of the allotments made on the occasion. The plaintiff further alleges that in January 1906, the jewelleries of the estate were divided, before which some of the valuable gold and silver articles had already been distributed amongst them. The plaint recites that former deeds of partition have not been drawn up nor have the accounts of the estate been taken and adds that on account of the wilful default of the executors, portions of the estate have been either lost or destroyed and that they are consequently liable for devastavit. The plaintiff, accordingly, commenced this action on the 15th April 1907 for account of the administration of the estate, for confirmation of the private partition amicably effected between the parties, for a scheme under which suitable provision might be made for payment of the annuities and bequests mentioned in the will of the testator for partition of the properties which have not yet been divided and for incidental reliefs. In the alternative, the plaintiff prayed that if for any reason the allotments already made should not receive the sanction of the Court a partition of the whole of the estate might be directed. The plaintiff joined as defendants to the suit his two brothers who had acted, as executors, his four sisters who were entitled to certain bequests under the will and also his mother. The mother died during the pendency of the suit and as the grandmother, that is the mother of the testator died before the suit, no further reference need be made to them. The first and second defendants who are the brothers of the plaintiff, filed separate written statements remarkable for their prolixity. They did not deny the private partition nor the allegation that possession had been taken in accordance therewith. So far as we can gather from the written statements, there was no substantial defence to the suit, but allegations were made as to the extent of the properties comprised in the estate and it was urged that certain properties claimed by the plaintiff as included in the estate were the self-acquired properties of the second defendant. The defendants farther denied the charge of waste and mis-appropriation and also contested their liability to render accounts. The sisters filed written statements in which they put forward their claim to the bequests made in their favour in the will of their father. On these pleadings the Subordinate Judge raised thirteen issues. The third issue was to the following effect. What were the conditions under which the scheme of partition was made? Had they been com' plied with? Can the scheme be adopted? The other issues related to the question of the extent of the estate, the liability of the executors to render an ordinary account or account for wilful default and the provisions to be made for the payment of the legacies. No evidence was taken by the Subordinate Judge upon the third issue but the second defendant, who alone really contested the suit, made a statement in Court on the 20th July 1908. He admitted the preparation of the scheme for partition of the movable and immovable properties as alleged by the plaintiff, bat expressed his unwillingness to abide by the distribution which had been made because as he alleged, in the first place, there had been some mistake in the scheme discovered by him after the written statement had been filed; in the second place, the accounts had not been taken within six months from the 5th June 1904 on which date the first allotment was made and, in the third place, the accounts had not been taken in respect of the arrears of rent due for Zemindaris and houses and also in respect of litigation expenses. The Subordinate Judge on the 21st July 1903 decided the third issue and gave effect to the objection of the second defendant on the grounds that the partition was invalid and ineffectual as it was not embodied in a registered instrument, and admittedly did not comprise all the properties of the estate. He farther held that it was unfair in that the amount of arrears due on each of the properties had not been taken into account. In this view the Subordinate Judge concluded that the entire estate should be. partitioned by a Commissioner, and three days later, made his preliminary decree. The judgment on which this decree is based is somewhat meagre and does not satisfactorily deal with the various questions which arise in the case, in particular the question of liability of the executors to render accounts, which is disposed of in such ambiguous terms that both the parties before us have expressed their inability to understand what the Subordinate Judge really intended to decide. The plaintiff has now appealed against the preliminary decree and on his behalf the decision of the Subordinate Judge has been assailed substantially on four: grounds, namely first, that the private partition effected between the parties is binding upon them and cannot be impeached on any substantial ground; secondly, that an enquiry as to what properties are comprised in the estate and are liable to be partitioned ought to have been made by the Court before the preliminary decree was made and should not have been left to the Commissioner appointed to make the partition, thirdly, that the properties claimed by the second defend-ant as his self-acquired properties have not been established to be of that description; and fourthly, that the liability of each of the executors to render accounts ought to have been specifically stated. The second defendant has also appealed against the preliminary decree and on his behalf it has been contended that the shares of the three properties Ultadingi, Manickotlla and Tiljala which have been directed to be partitioned have been erroneously calculated and, the shares acquired by him after the death of his father should have been treated as his self-acquisitions and consequently not liable to be partitioned. Both these appeals hare been heard together and as they are directed against the same decree, the questions raised may be discussed in one judgment.
2. In support of the first ground taken on behalf of the appellant which is the substantial ground in these appeals, it has been argued that the partition previously made should not have been ignored inasmuch as it was effected with the consent of the first and second defendants and the father-in-law of the plaintiff who acted as the guardian of his son-in-law. Our attention has further been invited to the circumstance that possession had been delivered in accordance therewith, that the plaintiff on attainment of majority had confirmed the transaction, that the parties had effected improvements on the property and granted long leases to tenants and that, even according to the case of the defendants they had since the time of the partition ceased to keep accounts of the joint estate. It has further been argued that the partition was in the nature of a family arrangement and that the Court ought to be slow to upset-an arrangement which had been carried out apparently with considerable care and caution. In our opinion there can be no question that this contention must prevail, the reasons given by the Subordinate Judge in favour of the view that the private partition should be ignored are all unsubstantial and the objections raised by the second defendant in the statement which he made before the Court are equally without foundation.
3. In the first place the Subordinate Judge appears to have held that as the partition was not effected by a registered instrument, it was inoperative in law. This view is entirely opposed to the decision of this Court in a case the correctness of which has not been called in question before us, namely Gyannessa v. Mobarakannessa 25 C. 210 : 2 C.W.N. 91 where it was ruled that a partition of joint property was not an exchange within the meaning of Section 118 of the Transfer of Property Act, and was not by law required to be effected by an instrument in writing. The same view had been indicated by their Lordships of the Judicial Committee in the case of Rewun Persad v. Musammat Radha Beeby 4 M.I.A. 137 at p. 168 : 7 W.R. 35 (P.C.) where their Lordships regarded it as undisputable that a division of joint property might be effected without an instrument in writing. Reliance was, however, placed by the learned Vakil for the second defendant upon the case of Suhramani Ayyer v. Savitri Ammal 4 M.L.T. 354 : 19 M.L.J. 228 and (Infra) 3 Ind. Cas. 321 as an authority for the contrary view. That case is clearly distinguishable. The learned Judges of the Madras High Court appear to have held that if a partition was effected by an instrument in writing and if the property was of the statutory value, the deed to be operative must be registered. They do not lay down that a partition can be effected only by a written instrument duly registered. We must hold, therefore, that the partition by the plaintiff and not denied by the defendants is not inoperative because it was not embodied in a registered deed.
4. The second reason given by the Subordinate Judge against the validity of the private partition is equally untenable. He appears to have held that because some of the properties were left joint, the partition was partial and consequently inoperative; a view clearly based upon a confusion of ideas. He has lost sight of the distinction that although there cannot be a partial partition by a suit, partial partition by private arrangement is allowable. The cases of Hari Das Sanyal v. Pran Nath Sanyal 12 C. 566 and Jogendra Nath Mukerji v. Jugobundhu Muherji 14 C. 122 are authorities for the proposition that a partition suit must embrace the entire property jointly owned by the parties and a suit for partition cannot be entertained for the division of a portion only of the joint property. These oases, however, do not support the proposition that a partial partition by private arrangement is inoperative in law. It was ruled by their Lordships of the Judicial Committee in Rewnn Persad v. Musammat Radha Beeby 4 M.I.A. 137 at p. 168 : 7 W.R. 35 (P.C.) that a division may be effected without an instrument in writing and maybe either total or partial. The same view is indicated in the judgment of their Lordships of the Judicial Committee in Katama Natchiar v. Raja of Shivagunga 9 M.I.A. 539 at p. 614 : 2 W.R. 31 (P.C.) and Ghintaman Singh v. Nowlahho Konwari 2 I.A. 263 : 1 C. 153 at 161 : 24 W.R. 255 The identical view was followed in the cases of Gavrisankar Rajaram v. Atmaram Prabhuram 18 B. 611 and Bhawani Prasad v. Juggernath 9 C.L.J. 133 : 13 C.W.N. 309 : 3 Ina. Cas 241. In the latter case it was pointed out that if the private partition was partial, the property which had been excluded from partition continued to be joint and so liable to be partitied.
5. The third reason upon which the Subordinate Judge has refused to give effect to the private partition is also unsustainable. He observes generally that in his opinion the distribution of property alluded to in the scheme cannot be said to be a fair one. This may be taken in connexion with the first reason assigned by the second defendant in support of his refusal to adhere to the partition, namely, that since his written statement was filed he has discovered some mistake in the scheme not specified up to the present time. It is manifest upon the authorities that a partition of family properties as was made in the present case must be treated as a family arrangement and cannot be. lightly set aside in this manner. The principles applicable to cases of this description were examined and re-stated in the case of. Helan Dasi v. Durgadas Mundal 4 C.L.J. 323. It was there pointed out that a partition or family arrangement made in settlement of a disputed or doubtful claim by arbitrators appointed by the parties, effecting a division of the family properties and drawing of a list of them, which was carried out and acted upon by them for sometime, was a valid and binding arrangement which the parties to it could not deny, ignore or resile from. This view is supported by the decision of the Judicial Committee in Sri Gajapathi Radhika Patta Malia Devi Garu v. Gajapathi Nilamani Paita Maha Devi Garu 13 M.I.A. 497 at p. 512 : 6 B.L.R. 202 : 14 W.R. 33 (P.C.); Mantappa Nadgoda v. Baswunt Rao Nadgoiuda 14 M.I.A. 24 at p. 30; Greendor Chunder Ghose v. Troyluckho Nath Ghose and Muhammad Imam Ali Kkan v. Husain Khan 25 I.A. 161 : 26 C. 81 at p. 100. It was further pointed out in the case just mentioned upon the authority of Williams v. Williams L.R. 2 Ch. App. 294 that a family arrangement might be upheld although there was no right actually in dispute at the time of making it, and the Courts would not be disposed to scan with much nicety the quantum of consideration. It was a mistake to suppose that the doctrine of family arrangement extended no further than to arrangements for the settlement of doubtful or disputed rights. The principle is applicable not merely to cases in which arrangements are made between the members of a family for the preservation of its peace but also to cases in which arrangements are made between them for the preservation of its property. No doubt a family arrangement may be set aside on the ground of mistake, inequality of position, undue influence, coercion, fraud or any other similar ground, but any such allegation must be clearly established. The leading decision on the effect of mistake in affecting the validity of a family settlement is that of Gordon v. Gordon 3 Swanston 400 : 19 R.R. 230. In this case, which was repeatedly argued before Lord Eldon in the course of five years, it was ruled that family agreements without fraud must be established, though founded in mistake but they would not be supported if founded on mistake of either party to which the opposite party was an accessory. A family arrangement concluded in honest error, is binding, but not so if either party has been misled by the concealment of material things, for the family agreement requires communication of all material circumstances. The Lord Chancellor stated that where family arrangements had been fairly entered into without concealment or imposition, on either side, with no suppression of what is true or suggestion of what is false, although the parties might have greatly misunderstood the situation and mistaken their rights, a Court of Equity would not disturb the quiet which was the consequence of the agreement; but when the transaction had been unfair and founded upon falsehood or misrepresentation a Court of Equity would have very great difficulty in permitting such a contract to bind the parties. To the same effect are the decisions in Latvian v. Campion 18 Boav. 87 and Bentley v. Mackoy 31 Beav. 143 : on Appeal 4 De G.F. and J. 278. The latter of these cases shows that where a deed of family arrangement has been acted upon for many years and no fraud is imputed, the Court will not set aside or alter such a deed upon the mere allegation by some of the parties to it that its provisions did not carry out their intention. The essence of the matter is, as Lord Justice James puts it in Moxon v. Payne L.R. 8 Ch. App. 881 that to make a compromise of any value, the parties must be at arm's length, on equal terms, with equal knowledge, and with sufficient advice and protection Reference may also be made to the case of Fane v. Fane L.R. Eq. 698, which shows how a family settlement will not be supported if founded on a mistake of either party to which the other party is an accessory, although such mistake may have been innocently made. Tested in the light of these principles the second defendant has really no substantial grounds to urge against the partition. He vaguely asserts that he has discovered some mistake which he does not even specify, He does not allege that the mistake was induced by any representation made by the other parties to the partition. The Subordinate Judge states in general terms, that the partition cannot be regarded as fair. Obviously there is no tangible ground upon which the partition can' be disregarded.
6. The fourth and last ground upon which the Subordinate Judge ignores the partition turns out on examination to be as unsustainable as the others. He considers that as the arrears due upon the different properties were not taken into account, the partition cannot be treated as operative. In this connection we may notice the third objection of the second defendant that the partition is not conclusive because accounts have not been taken of arrears of rent of zemindaris and houses and all expenses of litigation. The obvious answer is that if the accounts have not been taken, they have to be taken in this suit, and indeed, it is one of the primary objects of the present litigation to have the accounts taken. The second defendant also urged in his statement before the Court that the accounts of the executors had not been taken within six months from the 5th June 1904 when the partition was effected. If there was an arrangement that the account should be so taken, failure to carry it out does not, in our opinion, invalidate the partition. The executors are bound to render accounts of their management of the estate. So far as we can gather from the materials on the record, they have not up to the present time shown either willingness or readiness to render such accounts, and it is obvious that their failure to discharge their duty cannot in any way affect the validity of the private partition. It follows consequently that all the reasons given by the Subordinate Judge and urged by the second defendant against the conclusive character of the private partition completely fail. The plaintiff is, therefore, entitled to ask that the allotments already made be adopted by the 'Court and that the rights of the respective parties in the properties covered thereby be declared accordingly. It is further clear that the owelty money due in connection with the allotments should be paid and received as provided therein. The partition will, therefore, take place only in respect of properties movable and immovable, not previously divided. The first ground taken on behalf of the appellant must consequently be decided in his favour.
7. The second ground taken on behalf of the appellant raises the question, whether the properties to be partitioned ought to have been determined by the Court before the preliminary decree was made. The second defendant filed a petition on the 21st July 1908 in which he gave a list of ten properties, which, according to him belonged to the estate of his father. When he was examined in Court, he asserted that there were other properties also in the shape of Government promissory notes and ornaments which formed part of the estate, The Subordinate Judge raised an issue on the point as to whether any properties, movable or immovable, had been excluded from the list of joint properties annexed to the plaint, and, if so whether the suit was maintainable. At the trial, however, he omitted to decide the question thus raised. The plaintiff has offered to include in the suit any property which may be proved to be joint property, but he does not admit that he has, to his knowledge, left any property out of the suit. As pointed out in the cases of Hari Narain Brahnie v. Ganpat Rao Daji 7 B. 272 and Ram Lochun Pattuck v. Rughoobur Dyal 15 W.R. 111 all properties established to be joint properties must be included in the suit. But the question, whether a particular property, alleged to be joint, really possesses that character has to be determined before the preliminary decree is made. This is fairly clear from the terms of Section 396 of the Code of 1882 and Order 26 Rules 13 and 14 of the Code of 1908. These provisions of the law contemplate that by the preliminary decree should be ascertained the property to be divided, the parties interested, and their several rights therein. If any authority were needed for such an elementary proposition, reference may be made to the decision of the Chief Court of Punjab in the case of Kanshi Nath v. Bulalei Das 124 P.R. 1893 where it was ruled that the specific properties to be partitioned must be ascertained before preliminary decree is made. The reason for this rule is obvious; as all questions involving the title of the parties and their right to any relief within the issues, are judicial in character and must be determined by the Court, such determination must be ordinarily made by the Court, and incorporated in the interlocutory decree before any partition is made or directed. It need not be denied, that in exceptional circumstances, partition may properly be directed, reserving some question for further and future consideration. But if, as a general rule, the properties to be partitioned are not determined before the preliminary decree but are left to be determined by the Commissioner it may lead to great inconvenience and endless confusion, for instance, after the Commissioner, has made his return, if the Court should hold that a particular property was not liable to be divided because it was not joint property, the whole of the allotments might have to be re-cast. We must consequently hold that before the preliminary decree is made, the Subordinate Judge should determine upon evidence whether the properties alleged by the second defendant to be joint properties and belonging to the estate of his father, are really properties of that description. If this is answered in the affirmative, the properties will be included in the suit. The second objection taken on behalf of the appellant must consequently be upheld.
8. The third objection taken on behalf of the appellant raises the question, whether the properties claimed by the second defendant as his self-acquired properties have been established to be such. The evidence on the point is meagre and inconclusive, and it is impossible to hold that the second defendant has proved conclusively that the properties acquired by him after the death of his father were acquired with his separate funds. In this connection, we may also consider the ground taken by the second defendant in the appeal separately preferred by him, in which he has urged that shares in certain properties, directed to be partitioned, are his self-acquired properties. Upon this part of the case also the evidence is very vague. It might have been necessary under these circumstances to direct a fresh investigation into this point. The parties, however, appreciated that even if it was established that the money applied in the purchase of the properties alleged to be self-acquisitions, were proved in part to be monies belonging to the estate of which the second defendant was an executor, questions of considerable nicety might arise as to the precise rights of the parties. The question might, for instance, arise, in view of the principles laid down in Knatchbull v. Halletl 13 Ch. D. 696 whether the beneficiaries were entitled, at their election, to take the properties so acquired or to have a charge on the properties for the amount of the trust money. Under these circumstances, the parties have agreed that the properties acquired by the second defendant after the death of his father should be retained by him, but that he should account to the beneficiaries for all monies he might have spent out of the estate for the purpose of such acquisition. The third ground taken by the appellant must, therefore, be allowed, and a direction inserted in the preliminary decree as to the liability of the second defendant to account for all sums spent out of the estate for the acquisition of these properties.
9. The fourth ground raises the question of the liability of the executors to render an account. The, direction which the Subordinate Judge has given on this behalf is not quite intelligible. There is no dispute that the executors as such must render the ordinary accounts; that is they must account for all profits that have accrued in their own time either Spontaneously or by their '. acts out of the estate of the deceased. But the executors, especially the second defendant, are further charged with devastavit. If this is established, that is if it is proved that there has been a waste of the assets and mis-management of the estate and effects of the deceased because the executors have squandered and mis-applied any portion of the assets contrary to the duty imposed upon them, they must be held answerable as _for wilful default. In this connection, the question arises whether the two executors, the first and second defendants to this suit, are jointly and severally liable. The principle applicable to cases of this description is thus stated in a work of high authority (Williamson Executors Vol. II p. 1467):
A devastavit by one of two executors or administrators will not charge his companion provided he has not intentionally or other-wise contributed to it; for the testator's having misplaced his confidence in one, shall not operate to the prejudice of the other.
10. Williams v. Nixon 2 Beav. 472. It is, however, the duty of all executors to watch over, and, if necessary, to correct, the conduct of each other, and an executor who stands by and sees a breach of trust committed by his co-executor, becomes responsible for that breach, of trust Styles v. Gery Macfly 422 (423); Horton v. Brocklehurst 29 Bev. 504. When, therefore, the accounts of the estate are taken, with regard to each disputed transaction, the conduct of each of the executors must be examined and his special liability, if any, determined. With reference to this part of the case, it is necessary to add that all the parties before us have agreed to render an account of all collections from joint funds which might be proved to have been received by them, and the plaintiff has consented to account for monies, if any, received on his behalf by his father-in-law and which he was not entitled to receive under the private partition. In other words, the parties have agreed that arrears and outstanding of the estate which have not been partitioned, should be accounted for by the parties who might have realised any portion of them. The order of the Court below upon the question of accounts must, therefore, be varied in the manner indicated.
11. Two other points of minor importance which were discussed in the course of the argument addressed to us, now require ex-lamination. As regards the order for costs made by the Court below, it has been contended that it is manifestly unjust as it directs each of the parties to bear his own costs up to the date of the preliminary' decree. There is considerable force in this contention. No doubt ordinarily in a suit for partition, pure and simple, as pointed out in the cases of Shama Soonduree Debia v. Messers Jardine Skinner & Co. 12 W.R. 160; Nawab Dildar Khan v. Bhowani Sahai Singh 5 C.L.J. 642 the parties are to bear their own costs of the suit up to the stage of the preliminary decree. But where, as here, the defendant contests the right of the plaintiff to claim partition, he maybe made liable for costs unnecessarily incurred by reason of his unfounded opposition Porter v. Lopes 7 Ch. D. 358 at p. 367. Under these circumstances, in the present case where a large number of disputed matters arise, the question of costs may be reserved till the final decree is drawn up and an order made therein consistently with the justice of the case. As regards the bequests in favour of the daughter it was contended that provision ought to be made in the decree for payment of Rs. 3,000 to which the fourth defendant was apparently entitled and the annuities payable to all daughters of the testator should be secured upon portions of the estate. It is conceded by all the parties that proper direction in this behalf ought to be inserted in the decree.
12. The result, therefore, is that this appeal must be allowed and the decree of the Court below discharged. The case will be remanded to the Subordinate Judge with the following directions:
(a) that the several allotments made in the course of the amicable partition between the parties be adopted and the rights of the respective parties in the same be accordingly declared in the decree.
(b) that the owelty money due in connection with the allotments be paid and received by the parties as provided therein.
(c) that the question of the extent of the properties included in the estate of the testator be determined before the preliminary decree and in particular that the title to the properties alleged by the second defendant to be joint properties be investigated upon the evidence.
(d) that the properties which were not in existence at the time of the death of the testator and have been subsequently acquired by the second defendant and are claimed by him as his self-acquisitions be retained by him, on condition that when accounts of the estate are rendered, sums, if any, spent out of the estate for the acquisition of such properties be debited against him.
(e) that after the properties which are liable to be partitioned have been ascertained and the rights, and interests of the parties therein have been determined, a preliminary decree be made for partition by metes and bounds and a Commissioner appointed for that purpose under Order 26 Rules 13 and 14.
(f) that the preliminary decree do contain a direction for the taking of accounts: that the first and second defendants be called upon to render the ordinary accounts of an executor up to the time that they were in possession of the estate, and also to render accounts as for wilful default for any devastavit committed by them, that in this latter respect, the conduct of each of the executors be separately considered and his liability ascertained. Let it. be farther declared that each party including the plaintiff has agreed to account for any joint moneys received by him since the private partition.
(g) that in the final decree provision be made for due payment of bequest in favour of the fourth defendant and the annuities payable to all the daughters of the testator, and that these be charged upon such portions of the estate as may be sufficient to secure their due payment.
(h) that the question of costs be reserved till the stage of the final decree.
13. As regards the costs of this Court, we direct that the second defendant do pay the costs of the plaintiff. We assess the hearing fee at Rs. 500.
14. Only one decree will be drawn up in both the appeals.