D.N. Mitter, J.
1. These two appeals arise cut of a suit for partition. Defendants Nos.1-3 are the appellants in Appeal from original Decree No. 90 of 1930, while defendant No. 4 has preferred Appeal No. 162 of 1930. The relationship between the parties to the suit will appear from the following genealogical tree:
SITARAM| _____________________________| | | Mohan Gangaram Prohlad. d. 1905 Padmabati.|______________________________________| | | Prosad Kali Prosad Biswanathd. 1910 d. 1901 (defendant| | No. 6)| ___________________ || | | | | Kenaram Rajani Debendra| (plaintiff) (defendant (defendant| = No. 5.) No. 8.)| Sarojini| (defendant No.| 7.)|_________________________ | ___________________________________________________ | | | |Trailokhya Bhupendra Narendra Satis(defendant (defendant (defendant (defendantNo. 1.) No. 2.) No. 3.) No. 4.)
2. It will appear from the said tree the Mohan Das was the plaintiff's grand father' He had three sons, the eldest Prosad Charan Das, the second Kali Prosad Das and the youngest Biswa Nath who is defendant No. 6. Defendants Nos. 1, 2, 3 and 4 are the sons and heirs of the late Prosad and the plaintiff and defendant No. 5 are the sons and heirs of Kali Prosad. The case stated in the plaint is that Mohan separated in mess and property from his other co-sharers in 1299 A.S., that Mohan died in 1312 A.S. 1905 and after the death of Mohan his sons continued in joint mess and property and that Prosad was the karta of the family; that during the lifetime of Prasad, a settlement of 1000 high as of land known as lot Surendraganj G plot within Sunderbans was obtained out of ijmali funds and that large sums of money were spent for reclaiming the Sunderbans jungle land out of ijmali assets; that the late Mohan Narayan Das left the immovable properties in Scheduled I in Mauza Doulbar formerly under Thana Contai in the Midnapore District; that these properties were acquired in the names of different members of the family from the profits of ancestral properties of the plaintiffs and defendants. It is stated in the plaint that Prosad died in Ashar 1317 B.S. and defendants Nos. 1,2,3 and 4 have succeeded him. In the properties of Schedules I and II (Sundarbans) the defendants Nos. 1 to 4 have got a third share, the defendant No. 6 a third share and the plaintiff has got an one-sixth share and defendant No. 5 has got an one-sixth share. It is further stated that after the death of Prosad, defendant No. 1, became the karta of the family. The plaint next recites that at a time when plaintiff was lying ill with typhoid fever, defendant got a deed of agreement of amicable partition executed by the plaintiff without disclosing to the plaintiff all the facts relating to the properties under the management of defendants Nos. 1 and 2. The defendants Nos. 1 and 2 took advantage of their position by stating falsely and by practising fraud and without giving the plaintiffs time to understand or opportunity to consult, got the deed of agreement registered; that notwithstanding the execution of the deed of agreement, the plaintiff and the defendants were owning and possessing and enjoying the usufructs of the properties of the 1st and 2nd Schedule in claim as before in ijmali, that the deed of reference to arbitration has become legally invalid and unenforceable on account of the death of the arbitrators. It is further stated in the plaint that the deed of agreement to partition contains many false recitals (see Paragraph 11 of the plaint).
3. It is further stated that of all the ijmali properties of plaintiff and defendants the lot at Sunderbans are the most valuable and the lands of Deolpata Syamchuk, etc., are first class lands and they, having been assigned to defendants Nos. 1, 2, 3 and 4 the agreement of partition has been extremely unfair and cannot bind plaintiff. The plaint sets forth in the third schedule the movable properties and the plaintiff prays for a division of the movables also. The plaintiff prays for (1) partition by metes and bounds of plaintiffs 1/6th shares in properties in the three schedules to the plaint and for possession (2) for accounts to be rendered by defendants Nos. 1 and 2 since 1317 Sraban B.S. and a decree for costs.
4. The substantial defences of defendants Nos. 1, 2 and 3 to the suits are (i) the agreement of December 1910, is binding on the plaintiff and partition should be on the lines of the said agreement, (ii) that some of the properties are the self-acquired properties of Prosad, father of defendants Nos. 1, 2, 3 and 4 must be omitted from the partition; that in particular Sunderband lands were the self-acquired properties of defendant No. 7 and must be left cut of partition. A schedule of the self-acquired properties of Prasad are given in the written statement at p. 101 Book A. With regard to the self-acquired properties the case made in the written statement is that they were admitted to he so in a previous deed of partition of the year 1893 between Mohan and his brother and Padmabati widow of the brother Ganga Das who was then dead (this deed has been marked as Ex. O and is printed at p. 48 of Book B). The defendants maintain that when the settlement operations commenced the plaintiff and defendants Nos. 5 and 6 had the entry in the settlement record made contrary to the agreement of December 1910 '(Ex. V). On discovering the evil intention of the plaintiff and defendants Nos. 5 and 6 the answering defendants intended to seek the protection of the Court but as the arbitrators named in the agreement (since marked as Ex. V, Book B, p. 144) had died, nothing could be done.
5. Defendant No. 4 filed a separate written statement and in Paragraph 14 of the said statement stated that he knew nothing of the agreement of 1910, that he was a minor at the time and that his mother as his guardian had the deed registered, but as his mother was illiterate purdanashin village woman, she did not get any independent advice (see p. III, Book A). The defendant No. 4 stated that as the agreement is prejudicial to the interests of the said defendant, he is not bound by the same. We will have to return to this defence for the defendant No. 4 has in his appeal before us changed his position and does not attack the validity of the agreement. On other points the defence is substantially the same as that of defendants Nos. 1 to 3.
6. On this state of the pleadings several issues were framed. The controversy in the present appeal has centred round Issues Nos. 7, 10 and 11 which run as follows:
Issue No. 7.--Whether the properties standing in the name of Prosad and defendant No. 1 form or ever formed part of the joint estate as alleged by the plaintiff or are they the self-acquired properties as alleged by the defence.
Issue No. 10.--Is the deed of agreement of 1318 A.S. fraudulent, invalid and inoperative on the grounds alleged in the plaint? Is the plaintiff entitled to impeach or attack the said, agreement?
Issue No. 11.--Was not the agreement in question executed in bona fide settlement of a family dispute? Is the plaintiff entitled to attack the same?
7. Oral and documentary evidence were adduced on both sides in support of their respective cases and after considering the same the Subordinate Judge has reached the following conclusions (1) that the deed of 1910 was properly executed by all the parties and there was no fraud or underhand dealing in the matter, (2) that the arrangement was wholly unfair and inequitable and was to the great disadvantage of plaintiff and defendant No. 6(3) that the agreement was not acted upon (4) that the Sunderbans lot standing in the name of defendants Nos. 1 to 4 really joint family property, (5) that the Nij jote lands standing in the name of Prosad are not his self-acquired properties, (6) that Ex. O the partition deed between Mohan, his brothers and his brother's widow is not a bona fide document, and (7) that there is no evidence to show that either prosad or defendant No. 1 acted as karta of the family. On these findings the Subordinate Judge has passed a preliminary decree for partition of the plaintiff's 1/6th share in respect of Schedules. I and II properties and for division of certain movables and has appointed a Commissioner to effect the partition.
8. It is against this decree that defendants Nos. 1, 2 and 3 have preferred one appeal and defendant No. 4 has preferred another and all the findings of the Subordinate Judge mentioned above have been impugned before us.
9. In the first place it has been contended that the deed of agreement to partition has been acted on and plaintiff cannot resile from the agreement and that the agreement Ex. V, Book B, p. 144, should be regarded as a preliminary decree for partition and the Court should direct a partition on the lines of the said agreement-It is further argued that the agreement was in the nature of a family arrangement and binds all the parties to the same. It is true that the plaintiff applied for the registration of his name in the Collectorate in reference to some of the properties in accordance with the agreement; see Ex. AA(2) Vol. B, p. 363 AA 1, Vol. B, pp. 366-368, but the evidence in the case discloses that notwithstanding the registration, possession was not in accordance with the agreement, The agreement to partition was not carried out. In Paragraph 26 of Ex. V (Book B, p. 144) it was stated that partition will be effected in accordance with rules in the previous paragraphs and that within six months from the date of the agreement, i.e., December 19, 1910, the parties shall get the properties divided according to shares by calling certain gentlemen and get the partition deed properly executed and registered. This was never done till the date of the suit nearly sixteen years after. A suit to specifically enforce the agreement would be barred at the end of three years after the lapse of six months from the date of the agreement and such a suit surely is now hopelessly barred by the statute of limitation, see (Article ?) Section 113 of the Schedule to the Limitation Act of 1908. It has been strenuously argued by Mr. Amarendra Nath Bose, the learned Advocate for the appellants that the first 25 paragraphs should be treated as embodying agreement between the parties as to their respective rights and what remained to be done by the arbitrators might be done by the Court. The parties never agreed to such a course, and to accept this argument would be to allow the parties to substitute for the agreement in question another agreement which the parties never contemplated. The defendants were to blame if they did not in time take steps to have the agreement carried out. That there was some dispute between the parties which led to the execution of Ex. V is borne out by documentary evidence. There was an, application by the plaintiff on September 16, 19 10, before the Collector (see Book B, page 365). Plaintiff was opposed by Trollokyanath, defendant No. 1, and from Ex. E Book B, page 165, it appears that this family arrangement was entered into in the month of December 1910 and it was stated that it would be filed before the Deputy Collector; see Book B page 167. It is said that parties filed rent suits in accordance with this arrangement, and we have been referred to two plants Exs. M and M1, pages 259, Book B. We agree with the Subordinate Judge that so far as Exs. M and M1 are concerned, it has not been established that plaintiff and defendant No. 6 instituted the rent suits and it is significant that these suits were not followed by decrees. The Record of Rights, on which reliance was placed by the appellant to show that the agreement Ex. V was acted on is wholly inconclusive. It is admitted by the defendant that in some cases the entries in the Record of Rights are contrary to the terms of the agreement. Reference was made in the course of argument of the collection papers as showing division of paddy of the Nij jote lands in accordance with the agreement. The plaintiff and defendant No. 6 deny any such division and we cannot rely on the papers which do not bear the signature of plaintiff and defendant No. 6. We have examined the evidence as to separate division of paddy and we do not consider the evidence convincing. The deed, in our judgment, has not been acted on.
10. Great stress is laid in argument that if the deed of agreement is out of the way then properties which stand in the name of Prosad in the partition deed between Mohan and his brother (Ex. 0, page 48, Book B) should be excluded from partition. These consist of about 361 bighas of land: see Scheduled IV, p. 68, Book B. In that document no doubt Mohan, the father of Prosad, states that these were Prosand's self-acquired properties, and if this deed had stood alone, we would have had no hesitation in giving effect to this contention of the appellant. But the defendants are faced with the admission made by them in Ex. V of 1910 that all these properties are the ijmali properties of the family. In Paragraph 6 of the said agreement see page 145, Book B, it is stated that properties standing in the name of Prosad 'were and are in ijmali'. This admission by the defendants shifts the burden on them of showing that the properties were the self-acquisitions of Prosad for what a mm admits to be true must reasonably be presumed to be so; see Chandra Kunwar v. Narpat Singh 29 A. 184 : 34 I.A. 27 : 4 A.L.J. 162 : 9 Bom. L.R. 267 : 5 C.L.J. 115 : 11 C.W.N. 321 : 17 M.L.J. 103 : 2 M.L.T. 109(P.C.). The admission is not conclusive and may be shown to be wrong and may be shown to be made under circumstances which do not make it binding on the parson making the admission. The defendant Troilokhya has sought to explain the admission in his deposition at page 200, Book A last but one paragraph. He says--
The properties of Prosad were described to be ijmili properties in the deed as defendant No. 4 was a minor and that he may not claim any share on attaining majority. I first objected to such a statement but ultimately agreed as our disputes were settled thereby.
11. This is an explanation, which can hardly be accepted. The legitimate inference which can be drawn is that in Ex. O these properties were possibly shown as Prosad's in order to reduce the share of Padmabati, widow of Ganga, one of the brothers in the inheritance. This is a possible view and has been taken by the Subordinate Judge. It is said that Prasad was acting in the Salt Department and was earning money but evidence discloses that the Salt Department was abolished in 1271 = 1864 several years before the date of Ex. O.
12. The bone of contention is the property in the Sunderbans which is said to be the most valuable of all the properties. In the agreement of 1910 it is admitted to be ijmali property and the burden is on the defendant to show that it is the self-acquired property of defendants Nos. 1 to 4. The admission has been sought to be explained by defendant No.1 at pages 205, 626-'Sunderbans lot was described as ijmali property lest my brother may claim in it hereafter.' It is difficult to follow the explanation. The admission is prejudicial to the interest of the brother as it reduces his share. Evidence has been given in this case to show that some money was borrowed by defendant No.1 to pay the premium of the pottah by which lease of the Sunderbans in favour of defendant No. 1 was created. The lease is dated December 16, 1908. The original pottah is lost and Ex. Q, Book B 107, is the certified copy. It is stipulated in the said lease that, within two years the work of reclamation was to be completed. It is said that a sum of Rs.18,000 was spent in clearing the jungles, see defendant No.1's evidence page 204 (21-22,Vol. A). Where did he get this money from? He was aged 23 years and had no means of his own. He said that he borrowed money from others. Many of the creditors are alive and not any one of them has been called, and when the defendant with holds the best evidence in the case, an inference adverse to his case must be drawn. The creditors are named in defendant's evidence at page 199, Book A, line 42, where he says 'I took money from Hiralal, Abinash Mitter, etc.' Besides it appears from Ex. 2, Vol. O, page 25, that Troilokhya had borrowed a sum of Rs. 1.000 on January 16, 1911, for meeting the expenses required for cutting jungles and raising embankments of the lands in G plot Surendragunj and as securty for the loan he was hoyotheticating admittedly joint family properties by handing over deeds of title of such joint properties. The evidence as to defendant No. 1's borrowing money for paying the premium is not of a very satisfactory character and Ave agree with the Subordinate Judge that the evidence is not very reliable. Be that as it may, Ex. (2) conclusively shows that the money spent on reclamation was borrowed on the security of joint family properties showing that reclamation was made with money borrowed on pledging joint family assets. This destroys the theory of self-acquisition of the Sunderbans by defendant No.1, it is true that the lease stood in his name but this is of no consequence seeing that other admittedly joint properties stood in the names of other members of the joint family. Another point was taken, viz., that with regard to Sunderbans property as all labour that was employed in reclaiming was by defendant No. 1, he was entitled to a double share in the Surendraganj property and our attention was drawn to the decision in a recent case to which I was a party, viz., the case of Nanilal Das v. Nut Behary 38 C.W.N. 861 at p. 895. It is true that this point was indicated in the written statement of the defendant but no issue was joined on it and it would not be right to allow this point to be raised for the first time in appeal as it was submitted to the judgment of the Court below. If this point had been raised in the Court below, evidence may have been forthcoming to show that all exertion was not on the part of defendant No. 1 alone. We have not allowed this point to be raised in appeal.
13. It has been pointed out by their Lordships of the Judicial Committee in Secretary of State for India v. Jyoti Proshad Singh 53 I.A. 100 at p. 107 : 94 Ind. Cas. 974 : A.I.R. 1926 P.C. 41 : 30 C.W.N. 745 : 24 A.L.J. 761 : 53 C. 533(P.C.), that 'Courts of final appeal, whether it be the House of Lords or this Board have long established it for themselves as a principle of wisdom and prudence that they should be very chary of entertaining an argument which has not been sifted in the Courts below.
14. All the grounds taken in the appeal No. 90 fail which must be dismissed with costs. As this is a partition appeal, the hearing-fee is assessed at 15 gold mohurs to be divided between the parties in the following way, plaintiff to get 7 gold mohurs, defendant No. 6 seven gold mohurs and defendant No. 8 one gold mohur.
15. It remains to consider the appeal of defendant No. 4, No. 162. It is rested on the same grounds as the other appeal. But it is significant that this defendant who was a minor in 1910 has attacked the said agreement as prejudicial to his interest as has already been pointed out. He has in appeal, however, so far as this part of his defence is concerned, joined hands with his brother defendants Nos. 1, 2 and 3. For the reasons given in Appeal No. 90 this appeal must also be dismissed but without costs as there has been no separate argument in this case.
16. The cross-objection of the plaintiff is dismissed without costs.
Narsing Rau, J.
17. I agree.