SATYA KUMAR BANERJEE Vs. SATYA KIRPAL BANERJEE

JUDGEMENT

(1.) On the 30 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 11 January 1897. He left a mother, a widow, three sons and four daughters. On the 14 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 15 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 20 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 5 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 21 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/s. 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/s. 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/s. 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.