1. These appeals arise out of suits for partition, and the Courts below have dismissed the suits upon a preliminary point, namely, that the plaintiffs had not acquired any such interest in the properties as to entitle them to maintain a suit for partition. It appears that one Madhusudan Das left four sons, Mohini Mohan Das, Radhika Mohan Das, Lal Mohan Das and Khettra Mohan Das. Khettra Mohan's interest devolved upon Mohini Mohan, Radhika Mohan's interest devolved upon his widow Gobinda Rani and Lal Mohan's interest was inherited by his widow Priya Moyee. Mohini Mohun Das obtained a loan of Rs. 2,50,000 from the Eastern Mortgage and Agency Company under a deed of mortgage dated the 27th September 1890. One of the conditions upon which and subject to which the said Company agreed to grant the said loan was that the mortgaged properties should be managed entirely and without any interference from the said mortgagor by Mr. Garth and Mr. Weatherall and Mohini Mohan executed a power-of-attorney in their favour. Mohini Mohan died on the 28th December 1896, and Letters of Administration of his estate were granted to one Sashi Bhusun Guha on the 29th January 1897. The mortgagee, it appears, subsequently found that there were difficulties in the way of management of the estate and in the conduct of lawsuits which could be avoided if the properties were vested in trustees. An indenture transferring the mortgaged properties to Messrs. Garth and Weatherall as trustees with powers to manage them which included the power to grant perpetual leases was accordingly drawn up and submitted by the Administrator to the District Judge of Dacca, who sanctioned 16 on the 18th May 1897. On the 3rd April 1897 the indenture was executed between the Administrator, Sashi Bhusan Guha, representing the estate of the mortgagor Mohini Mohan Das, the Eastern Mortgage and Agency Company the mortgagees and Messrs. Garth and Weatherall the trustees, transferring the properties to the latter as am-mukhtars, managers and trustees. Priya Moyee executed an usufructuary mortgage in respect of her share in favour of the said Messrs. Garth and Weatherall for a term of years and also a trust deed with similar powers. These trustees granted certain permanent leases, dar shikmi tenures in two of the cases and a patni taluk in the third, in favour of the plaintiffs in 1903 in respect of certain shares in some properties and the plaintiffs remained in joint possession of those shares with the other co-sharers since 1903; and in September 1910 the plaintiffs brought these suits for partition against those other co-sharers.
2. It may be mentioned here that on the death of Mohini Mohan and Priya Moyee, their estate devolved upon Sham Peari.
3. The Court of Appeal below held that Section 90 of the Probate and Administration Act does not empower an Administrator appointed under the Act to delegate his powers to others; that even if the trust deed was valid, Sashi Bhusan being dead his administration ceased many years ago, and the 'Sub-trustees' could not grant leases after their own trusteeship ceased; and that in any case they had no right to grant permanent leases it being nowhere provided that their possession was to be permanent.
4. As regards Priya Moyee the Court below observes that it was not the case of the plaintiffs that she executed the leases for legal necessity, and she having died, any permanent leases granted in respect of her share by the said trustees are voidable.
5. That Court accordingly held that the leases set up by the plaintiffs were voidable and that it is clearly then undesirable that a partition should be effected until it is definite that such leases are not so voidable'.
6. It is unnecessary to consider in the present cases whether the leases obtained by the plaintiffs from Messrs. Garth and Weatherall are valid or voidable at the instance of the reversioner after the death of Sham Peari. The plaintiffs are in joint possession of the shares with the defendants as co-sharers under leases which purport to be permanent leases granted to them under an arrangement sanctioned by the Court. The only person at present interested in challenging their right is Sham Peari who is a party to the suit, and she does not contest the suit. The contending defendants have no interest whatever either present or future in the shares in respect of which the plaintiffs claim to be lessees and the plaintiffs have been in possession jointly with them ever since 1903 without any objection on the part of the defendants. In fact in some rent suits these defendants made the present plaintiffs parties defendants as co-sharer landlords. We think that under the circumstances the principle laid down in the case of Sundar v. Parbati (3) applies. In that case two Hindu widows were in lawful possession of properties of their deceased husband and one of them brought a suit for partition against the other. There was a question in that case whether there had been a valid adoption made by the deceased husband and whether the estate had been given to the said adopted son by a Will of the deceased. The Judicial Committee held that apart from those questions, the fact of joint possession by the two widows of the estate which belonged to the testator ever since the death of the adopted son appeared to them sufficient for disposing of the suit in favour of the plaintiff. Referring to the possession of the widows their Lordships observe: 'Their possession was lawfully attained in this sense, that it was not procured by force 'or fraud, but peaceably, no one interested opposing. In these circumstances it does not admit of doubt that they are entitled to maintain their possession against all comers except the heirs of Prem Sukh (the adopted son) or of Baldeo Sahai (the deceased husband), one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title. But neither of these possible claimants is in the field, and the widows have, therefore, each of them, an estate or interest in respect of her possession, which cannot be impaired by the circumstance that they may have ascribed their possession to one or more other titles which do not belong to them.'
7. The same consideration applies to this case.
8. It is contended on behalf of the respondents that the Court ought to take into consideration the fact that on the death of Sham Peari, the reversioner may bring a suit for setting aside these alienations, and if he succeeds in doing so the partition would have to be set aside. That we think is not a sufficient ground for refusing the plaintiffs the right to partition which they have at present in respect of their possession. In the case of Bhagwat Sahai v. Bipin Behary Mitter (4) it was held by this Court that the mokararidars (the plaintiffs in that case for partition) had not such a permanent interest as to ensure that any partition then effected would be of enduring effect, on the ground that the mokararidars in that case might incur forfeiture in certain contingencies mentioned in the lease. Their Lordships in overruling the decision observed as follows:
But those learned Judges held that the right of partition, which would otherwise have belonged to the appellants, the mokararidars, was lost by reason of the fact that their mokarrai is liable to forfeiture in certain contingencies and, therefore, is lacking in the permanence of interest necessary to support a claim for partition. Their Lordships are of opinion that the distinction thus introduced cannot be supported.
The title of the appellants is a permanent title, though liable to forfeiture in events which have not, occurred, and the rights incidental to that title must, in their Lordships' opinion, be those which attach to it as it exists, without reference to what might be lost in future under changed circumstances.
9. Having regard to the circumstances already stated and to the fact that the only person who is now interested in challenging the title of the plaintiffs has not contested the suit at all, we think the Courts below are wrong in dismissing the suit upon the preliminary ground mentioned above.
10. The decrees of the Courts below are accordingly set aside and the cakes sent back to the Court of first instance in order that they may be tried on the merits.
11. Costs of these appeals will abide the result.