AWADH SARJU PRASAD SINGH Vs. SITA RAM SINGH

JUDGEMENT

(1.) This is an appeal against a decree of the District Judge of Ghazipur, reversing the decision of the Court of first instance and dismissing the plaintiff's claim, and arises under the following circumstances. The plaintiff is a great-grandson of one Baij Nath Singh who died a number of years ago possessed of considerable property. He had two sons, namely, Ram Narain Singh and the defendant Ram Prasad Singh. The parties to the suit are his descendants. Before the execution of the agreement of the 27 of March 1888, to which we shall presently refer, the members of the family of Baij Nath Singh were undivided and joint, but owing to dissensions amongst them it was determined to have a partition of the joint family property. Accordingly an agreement was entered into, of date the 27 of March 1888, between the adult members of the two branches, namely, Ram Prasad Singh and his sons Ajudhia Prasad Singh and Sita Ram Singh, of the one part, and Ram Pargash Singh and Dwarka Prasad Singh, the sons of Ram Narain Singh, who was then dead, of the other part. It is recited in this agreement that the parties were equal sharers in a number of villages, the names of which are given, but that in certain other villages the names of the parties were entered in the jamabandis in respect of the zamindari and cultivatory rights, "contrary to facts and the shares entered in the pattidari khewat." It was then agreed between the parties that they should give the whole of an 8 anna 5 pie 15 kant 5 jau 41 1/4 til share in a village, named Gauritar, as also an 8 kant 4 jau 6 til share in the same village, which had formerly belonged to one Tilhar Rai, to the plaintiff Awadh Sarju Prasad Singh and it is recited that this agreement was carried out and that the plaintiff was put in possession of the same. In the document it is stated that this village was given to him "by right of primogeniture." He is the eldest son of Ram Pargash Singh, son of Ram Narain Singh, who was the eldest son of Baij Nath Singh. Then follows a recital that the share in this village jointly with two other villages had been hypothecated to Dayal Pande and Sheolojak Pande under two hypothecation bonds, one executed by the first parties to the agreement and the other by the second parties respectively on the 24 of November 1884, and that the executants were liable to pay the amount of their respective bonds. Then follows a provision that "this property (that is, the village of Gauritar) shall be considered free from the said debt as well as every sort of debt due by us (that is, the executants). If the said property be jeopardised on account of the said amount due under the hypothecation bonds executed either by the first or the second parties, Babu Awadh Sarju Prasad Singh aforesaid or his guardian will have power to recover the money from the person and property of that party in a proper way to the extent of the injury done, i.e., the party on account of whose debt secured by the bond executed by him the property in the said Gauritar shall be jeopardised will be liable to pay Rs. 1,250. If the property be jeopardised on account of the amount due under the bonds executed by each of the parties, each of them will be liable to pay Rs. 1,250." The remaining villages were then divided between the two parties to the agreement in equal shares. No reference is made to any disputes between the parties in regard to the joint properties in the earlier part of this agreement, but from a passage which occurs at the end of it we gather that there were disputes pending. The passage is as follows: "Now there remains no sort of dispute between the parties. The settlement has been made after understanding the account up to 1295 Fasli." The executants of the agreement failed to pay the mortgage debts due to Dayal Pande and Sheolojak Pande, and in consequence two suits were instituted by the mortgagees to enforce payment of the mortgaged debts by sale of the mortgaged, property and the shares in Gauritar which had been settled upon the Plaintiff were sold by auction on the 28 of November 1898. of the defendants share in that village a 4 anna share had been mortgaged by them to the mortgagees. This left a 3 pie 2 kant and 23 3/4 til share unencumbered. The plaintiff instituted the present suit against the defendants to recover the loss which he had sustained by reason of the sale of the 4 anna.

(2.) The Court of first instance decreed the claim, holding that the agreement forming the basis of the suit was a family arrangement and was binding upon all the members of the family.

(3.) The learned Subordinate Judge further held that the agreement fell within the purview of the last portion of Clause (c) of Section 23 of the Specific Relief Act, and that according to it the plaintiff, although not a party to the agreement, being beneficially entitled under it, was entitled to sue under that section. Upon appeal the learned District Judge held that the agreement was not "a compromise of doubtful rights," and therefore did not come within the meaning of that section, and that he was therefore "bound to hold that plaintiff has no right to sue." He accordingly dismissed the plaintiff's claim. It appears to us that the decision of the learned District Judge is erroneous, and for these reasons. The agreement of the 27 of March 1888 was not so much a compromise of doubtful rights between members of a family as an agreement entered into by the adult members of a joint Hindu family for the partition of the joint family property. It is settled law that a partition so made during the minority of members of a joint family will be valid, and if just and reasonable will bind the minor members of the family. Of course the interests of minors must be regarded. A minor on attaining full age may sue to have a partition set aside on the ground that the same was fraudulent or prejudicial to his interests. But if the partition be just and equitable it will be binding on him. In this case the plaintiff was represented in the transaction by his father and natural guardian Ram Pargash Singh, and the partition has been acted upon and the property the subject of it, except the village Gauritar, enjoyed in accordance with the rights of the parties as declared in the agreement. Now if a partition so effected is binding upon a minor, it seems to follow that the minor must have the correlative right of enforcing his claims under the partition. The plaintiff was, it seems to us, somewhat in the position of a cestui que trust for whom, in satisfaction of his interest in the joint family property, provision was made by the partition.