Brijraj Singh and Another vs Sheodan Singh and others

Moulton, J. 1. This is a suit brought by two brothers, Rao Karan Singh and Kunwar Sheodan Singh (with whom are joined as plaintiffs their respective sons Kunwar Shibraj Singh and Kunwar Ranbir Singh), against the widow and son of their eldest brother Rao Sultan Singh, claiming a partition of certain properties which they allege to be the joint and undivided property of the family to which they belong, in which they are entitled to a two-thirds share. The defence is that the properties originally belonging to the family were the subject of a division by a family arrangement made and acted upon in 1895 during the lifetime of the father of the plaintiffs, and that thenceforward the properties ceased to be held jointly, and that those properties of which the defendants are in possession came to them under that family arrangement and became and still remain their separate property. 2. The principal subject of dispute is village property. But the suit relates also to certain other property, as to which different considerations arise. It will be convenient in the first instance to determine the questions in issue so far as they relate to the village property only and to consider subsequently the effect of the facts thus found on the rights of the parties in respect to the other property. 3. It will be seen from the foregoing that the real issue in the case is whether or not the alleged family arrangement was in fact made and assented to by the parties interested. The defendants'' contention in this respect is exceptionally clear and precise. It leaves no doubt as to the terms of the arrangement even in the minutest details, and is equally definite as to the date when and the circumstances under which it was made. 4. The father of the three brothers was Rao Balwant Singh. In 1895 he was the head of the family which was then joint and undivided. The village property under his management, and to which this case relates, has been held by the Court of first instance to have been ancestral property, and that finding is acquiesced in by the parties. He was at that date in advanced years and indifferent health, and determined to free himself from the labours of business and devote the remainder of his life to pilgrimages and travel in other countries. Accordingly, on November 26, 1895, he drew up and executed a document (which he calls a will) setting out a division of the family property among the members of the family, reserving nothing for himself. This is the family arrangement set up by the defendants. 5. Their Lordships incline to the view that the term "will," as applied to this document, was a complete misnomer. It is manifest that it differed from a will in the crucial characteristic that it was intended to speak from the date, at which it was written, and not from a future date, namely, the death of the writer. It was, in fact, and was intended to be viewed as, a record of a family arrangement then and there made and carried into effect partitioning the family estate among those interested. Indeed, in anticipation of this formal partitioning, the sons had been put into possession of their shares some two months previously. All this appears from the concluding passage of the document, which reads as follows: "All the three sons were put in separate possession of the estate in the beginning of the year 1303 Fasli" (September, 1895). "I have no other heir having a right besides those mentioned in this will. I have therefore executed this will in order that it may serve as evidence." 6. There is no doubt whatever as to the authenticity or date of this document. But the property was ancestral, and therefore Rao Balwant Singh, although head of the family, had no right to make a partition by will of that property among the various members of the family except with their consent. They had independent rights in it with which he could not interfere. The main question, therefore, is whether there is evidence sufficient to establish the consent of the plaintiffs Rao Karan Singh and Sheodan Singh to this family arrangement. If they accepted it, their acceptance would bind not only them but also their sons, who are the remaining plaintiffs, as they would be representing in the transaction their respective branches of the family. 7. Their Lordships are of opinion that the evidence of their acceptance of the partition is overwhelming. To appreciate it fully it will be necessary to examine in some detail the contents of the document itself and the acts of the parties consequent thereon. 8. Their Lordships'' judgment, after dealing at length with the terms of the document and the evidence above stated, continued: 9. The claim of the plaintiffs in this action evidently arose from the suggestion of the pleaders whom they consulted after quarrels arose in the family, and was based on the fact that the document which evidences the partition is termed a will. It is obvious that such a partition could not have been made by Balwant Singh by will strictly so called. But, as has been already pointed out, the document is much more than a will (if indeed it is in any sense a will at all), for it describes and witnesses to a family arrangement contemporaneously made and acted on by all parties. Every one treated it as such at the time. The mutations of names shew this beyond controversy. There is nothing, therefore, in the fact that the document is called a will which invalidates the partition, which was undoubtedly made in fact, and which was acted on by all parties for ten years without any dispute or misunderstanding as to their respective rights under it. 10. Counsel for the plaintiffs have endeavoured to support the contention that the partition was not intended to take effect in praesenti by reference to a provision to be found in this document. It reads as follows: "If I at any time come back from pilgrimages and find mismanagement or character of any one bad, then I shall have power to cancel this will, which shall be enforced from the date of its execution." 11. Their Lordships are of opinion that the highest effect that can be given to such words is that this evidences a contractual condition which the sons accepted in order to obtain the partition which gave them immediate possession of the property, and viewed thus, the contractual acceptance of a power of forfeiture in case of bad behaviour would not, in their Lordships'' opinion, be sufficient to prevent the partition operating in praesenti. But the true interpretation of the provision is probably that it was merely put in as a threat in order to keep the sons in good behaviour, and that it could not have been enforced specifically, or oven at all. It is certainly quite insufficient to outweigh the overwhelming evidence that this was a family arrangement accepted by all parties. 12. The above considerations relate only to the village property. In addition to this there were two buildings, one in Aligarh and the other at Sahaoli. The disposition in the document relating to these buildings is peculiar and did not in the opinion of the learned judge of first instance amount to an absolute disposition of them, and their Lordships are not prepared to differ from his views on this point. 13. There remains the movable property. As to this the family arrangement is absolutely silent. The plaintiffs are therefore entitled to their share of these movables as inherited property. 14. It will be seen, therefore, that their Lordships are of opinion that the judgment of the learned judge of first instance was right on all points. Both plaintiffs and defendants appealed from his decision to the High Court. That Court allowed the plaintiffs'' appeal and dismissed that of the defendants. The defendants appealed from both of these decisions. In their Lordships'' opinion the High Court ought to have dismissed both appeals. They will accordingly humbly advise His Majesty that the order of the High Court allowing the plaintiffs'' appeal should be discharged with costs, and the decree of the Subordinate Judge restored, and that the order of the High Court dismissing the defendants'' appeal should be affirmed. The plaintiffs must pay the costs of the defendants'' appeal to His Majesty in Council, and the defendants must pay the costs of their unsuccessful appeal.