Someshwari Prasad Narain Deo vs Maheshwari Prasad Narain Deo

Ross, J.—Both parties have filed objections to the findings of the Subordinate Judge on the three issues sent down for trial on remand.

Before considering the properties in detail, I shall deal with certain preliminary questions.

First, as to the effect of the judgment of this Court on the scope of the present inquiry. In their plaint the plaintiffs stated that the joint family properties owned and possessed by the plaintiffs and defendant 1 consisted of moveable and immovable properties, lists whereof, so far as the plaintiffs had been able to ascertain, were given in Schedules 1 and 2 annexed to the plaint. The first prayer was that an account be taken of what the joint property of the said family now consists and the defendant be ordered to make discovery of all the properties and documents and other papers which are in his charge as head and karta of the said family. Schedule 1 was a list of immovable property and Schedule 2 a list of moveables. Schedule 1 consisted of four parts: 1(a) was a list of nankar villages, i.e., revenue-free properties comprised in Mahal Argali, Tauzi No. 229, Pargana Kharagdiha, with the names, 267 villages. 1(b) was a list of revenue-paying (khalsa) villages comprised in Mahal Bangaro Tauzi No. 215, Pargana Kharagdiha, with the names, 199 villages. Schedule 1(c) was a list of villages other than those mentioned in Schedules 1(a) and 1(b), with the names, 13 villages. Schedule 1(d) is immaterial for the present purpose. Schedule 2 was a list of moveables. It was decided by this Court that the Dhanwar estate was impartible; but that this did not conclude the case so far as the self-acquisitions were concerned. It was held that on this point it was not necessary to discuss further the nankar or khalsa villages which were not self acquisitions and were impartible and that the question was serious only with regard to the later acquisitions which were set forth in Schedule 1(c) to the plaint; and it was with respect to these properties which were acquired in the time of Ran Bahadur Narain Deo that the first two issues were framed. Issue 3 was framed as to the cash balance at the death of Ran Bahadur. When the case went back the plaintiffs filed three successive lists as they gradually obtained information about the property.

The petition of 5th September 1928, contained a list of 63 properties; that of 8th October 1928, a further list of 86 properties; and that of 23rd November 1928, an additional list of 28 properties. The defendants objected that the plaintiffs should be confined to their original list in Schedule 1(a). The Subordinate Judge excluded from his consideration all villages in these lists which were included in the original Schedules 1(a) and 1(b) and allowed the plaintiffs to go into evidence on the others. Both parties applied to this Court in revision against the order of the Subordinate Judge. This Court affirmed the order, observing that the reference to Schedule 1(c) was not intended to be taken as excluding from the inquiry villages which were not in any of the schedules, but on the other hand the inquiry could not extend to villages which had been included in Schedules 1(a) and 1(b) which it was never suggested at any time were incorrect. Thereafter the plaintiffs applied for an amendment of the plaint by a petition of 22nd March 1919. According to the amended list the nankar villages of Schedule 1(a) were reduced to 17, the khalsa villages of Schedule 1(b) to 53, while the self acquisitions in Schedule 1(c) became 676. The learned Subordinate Judge refused to allow the amendment; and it is contended in this Court that the amendment ought to have been allowed in view of the tentative nature of the plaint already referred to and it is argued that it will be a hardship to the plaintiffs if they are not allowed to correct their original lists in this way. Now, while it is true that amendment of the plaint may be allowed at any stage, it seems clear to my mind that this amendment cannot be permitted. It would involve a second remand and if the plaintiffs had been in earnest in this matter, they ought to have come to the High Court against the order refusing the amendment. But they submitted to the order and the inquiry was limited accordingly; and in principle it does not appear to me that the right to amend the plaint can extend to such a case as this. The parties went to trial on the basis that Schedules 1(a) and 1(b) properties were the nankar and khalsa villages of the estate. The plaintiffs'' case was that the whole estate was partible. The decision was that the nankar and khalsa villages were not partible. The plaintiffs now seek to alter the content of this decision by removing from its scope the great bulk of the properties which it covered. That, it seems to me, is impossible. If an amendment of this kind were permitted then it would be possible for a plaintiff to escape the consequences of an adverse decision by changing the subject-matter of the suit after the decision had been given; for that is what the proposed amendment amounts to.

On 5th April 1929, the plaintiffs prayed for an order on the defendants to produce their account-books "and title-deeds relating to the properties comprising the Dhanwar estate." The Subordinate Judge required a more specific application and then the plaintiffs obtained a copy of the list of papers contained in the document under which the Court of Wards made over charge of the estate. They applied for production of the documents mentioned in that list and they complain that these title-deeds were not produced. In my opinion the plaintiffs were not entitled to an order for discovery on an application of this kind. They did not furnish the Court; with any materials to support their vague claim which might have been founded on mere surmise or suspicion: and discovery of a party''s title deeds is not ordered upon what may be a mere fishing application: Phillips v. Phillips [1879] 40 L.T. 815. in my opinion the plaintiffs have no just grievance on this head. At the same time, where they have laid a foundation for it, a presumption may be available to them against the defendants from nonproduction of title-deeds in some cases.

Another question is whether the plaintiffs are required to prove that the self-acquisitions where acquisitions in the time of Ran Bahadur Narayan Deo. It is argued for the plaintiffs that this is not necessary and that they are entitled to partition of any properties which had been acquired before that time and which have been acquired in the time of the successor of Ran Bahadur, namely Iswari Prasad Narayan Deo. In this Court at the time of the hearing of the appeal the only question raised was as regards acquisitions in the time of Ran Bahadur. There was no question of earlier or later acquisitions. This may have been because the question of incorporation was a peculiar question so far as Ran Bahadur was concerned because of his insanity. But whatever the reason may have been, the fact remains that the enquiry suggested was an enquiry into the acquisitions only in Ran Bahadur''s time and the issues settled in the presence of the parties were confined to that period. In my opinion it is impossible now to extend the scope of that enquiry. But the plaintiffs claim that as members of the joint family of Iswari Prasad they are entitled to a share in the acquisitions made in his time. This however by no means follows, because he may have incorporated his acquisitions in the impartible estate. In my opinion therefore the properties with which this enquiry is concerned must be shown to be properties which were not included in Schedules 1(a) and 1(b) of the original plaint and which were acquisitions made in the time of Ran Bahadur. (His Lordship after considering the cases of each set of properties proceeded). The result is that of the 177 properties in the throe lists the plaintiffs fail as to 69, namely, of the first list, Nos. 17, 19, 20, 21, 25, 30, 36 to 44, 45, 46 to 48 and 58 to 63; of the second list, Nos. 6, 66, 68, 69 to 73, 75 and 78 to 86, and of the third list Nos. 1 to 7, 9 to 16, 17, 18 to 22, 23, 24 to 26 and 28. Subject to the question of incorporation in the impartible estate the plaintiffs succeed in respect of 98 properties, namely of the first list, Nos. 1 to 16, 18, 22, 23, 24, 26 to 29 32, 33, 34, 49 to 54, 55 and 57; of the second list, Nos. 3, 5, 7 to 65 and, of the third list, Nos. 8 and 27 (one house); and, subject to the question of merger, they succeed in respect of ten properties, namely of the first list, Nos. 31, 35 and 36; and, of the second list Nos. 1, 2, 4, 67, 74, 76 and 77.

I shall first take up the question of incorporation. The decisions of the Judicial Committee in Parbati Kumari Debi v. Jagadis Chunder Dhabal [1902] 29 Cal. 433, Murtusa Husain Khan v. Muhammad Yasin Ali Khan AIR 1916 P.C. 89 and Jagadamba Kumari v. Wazir Narain Singh AIR 1923 P.C. 59, show that the income from impartible property belongs to the owner and that acquisitions from that income follow the ordinary rule of succession unless the facts show that the owner intended to incorporate that property with the impartible estate.

Ran Bahadur was born in January 1824. He attained majority in 1842; but his estate appears from the documentary evidence to have been always managed by his mother and stepmother until 1864 when there was an inquisition under Act 35 of 1858 as the result of which he was declared a lunatic and his estate came into the hands of the Court of Wards where it remained until his death in October 1900. The question of incorporation is therefore twofold: first, whether Ran Bahadur himself showed any intention to incorporate the acquisitions in the impartible estate; and, secondly, whether the Court of Wards could and, if so, whether it did, show such an intention. It is conceded by the defendants that the only property with regard to which there is evidence of Ran Bahadur''s intention is Sheor Muhammadabad; and, as this is the most important property in dispute, the evidence must be considered in some detail. The first question is whether Ran Bahadur had lucid intervals so as to be capable of forming an intention to incorporate.

On this part of the case the defendants have a grievance. The question of self-acquisition with the connected question of intention to incorporate was never raised or suggested at the trial when the defence would have been in a much better position to give evidence about the state of Ran Bahadur''s mind. They had examined Mr. Glair Smith who was manager for eight years, Tinkari Bose who was also a manager, Darbari Lal, an old servant of the estate and Hukum Narain Deo, an agnate. All these witnesses had died before evidence was taken after remand and this has undoubtedly prejudiced the defence.

The case of the defence is that although for a great part of his life Ran Bahadur was incapable of managing his own affairs he had lucid intervals; and the evidence must be examined and first the oral evidence. Mr. Clair Smith at the original trial was not questioned on this point by the defence, because the question had not been raised. In cross-examination by the plaintiffs he said at p. 340 of the original paper-book, Part 1, that the ward had lucid intervals. At that stage nothing turned on this question and there was no reason for the witness to depose falsely. Dr. Gobind Chandra Misra was also questioned in cross-examination by the plaintiffs and he said that he did not find Maharaja Ran Bahadur a lunatic or insane. He saw the Maharaja many times for five or six months in 1900, the year of his death. He says that ha would not generally speak to his people but he would speak to his servants. That was all the evidence on this point at the original trial. After remand evidence was given by D.W. 1 an old servant of the Raj since the year 1884, whose village is one mile distant from Dhanwar. He says that Ran Bahadur used to have lucid intervals and that he talked sensibly during his lucid intervals. These intervals used to last for two or three hours and he used to talk with the estate amlas. He deposes to conversation that he had with Ran Bahadur who asked him why the manager was trying to sell Sheor and said:

We are purchasing for increasing the bulk of the Raj and instead of purchasing two or four villages more why should the manager sell this village.

and he said that he would write to the manager on the subject. Witness 2 for the defence is an advocate, Ran Bahadur Gopi Krishna, a grandson of the estate Diwan, Mahadeo Dutt. He says that he sometimes found Ran Bahadur a pucca lunatic and sometimes he found that he had lucid intervals and was in good sense. He also says that he was present at a conversation between his father and Ran Bahadur about the proposed sale of Sheor and the Maharaja said that he would try his best to induce the authorities not to sell this property. He said in effect that he did not like to alienate the property as this was the ancestral seat of the Raj and the Raj owed its name to that village Sheor. The witness''s father and the Maharaja both said that Sheor was acquired by the Raj with difficulty, because it was the ancestral seat of the Raj and therefore this should not be parted with. D.W. 3 is the son of the Manager Tinkari Bose. He speaks of seeing Ran Bahadur on the occasion of his going to his son''s marriage at Sheohar and he had conversation with him. He was not then insane and he says that he remembers the conversation. This witness when he gave evidence had no concern with the estate. D.W. 4 who was formerly a clerk in the Court of Wards but has now no connexion with the estate, says that it was not on every occasion that he found Ran Bahadur of unsound mind. He found him quite sane and of sound mind on two occasions. He also says that there was some talk of selling Sheor Muhammadabad and the Maharaja and Maharani both objected to the sale and that the sale did not take place on account of their objections. D.W. 5 was a clerk of Maharani Rambansi Kuer. He says that Ran Bahadur was of unsound mind with long lucid intervals and that for four or five years before his death he was not insane at all. He deposes that the Maharaja said that it was very improper that an old riasat like Sheor should be thought of being disposed of by sale and that Sheor was acquired to preserve the name of the Raj. D.W. 7 says that he had conversation about Sheor with Ran Bahadur who said that he was himself anxious to prevent the sale as it was purchased with great difficulty. Plaintiffs'' evidence is as follows: P.W. 1 says that Ban Bahadur never had sense to understand his own business or manage his properties. But after referring to various properties including Sheor he says that these properties were acquired for enlarging the estate of Dhanwar or the ambit of the Raj. This witness is an agnate of the family. Witness 2 says that he was of insane mind and never used to have lucid intervals. Similar evidence was given by P. Ws. 3 and 5. Witness 5 admits that Ran Bahadur accompanied a marriage party from Dhanwar to Sheohar although he says that he did so in a state of insanity.

The earliest document on the subject is Ex. J., a letter from Col. Ouseley, Agent to the Governor-General, dated 9th January 1844. He visited Dhanwar in 1843 and then he was struck with the peculiar manners and deportment of the Raja when he visited him; but at the time he thought that this might arise from ill health. When he visited Dhanwar again in 1844 he feared that total derangement of intellect had taken place. He endeavoured to draw him into conversation but he was quite unable even to elicit a reply to the commonest questions, whilst his strange manners, the appearance of his countenance and unsteadiness of his eyes seemed clearly to denote a derangement of intellect. The people about him said that he was sometimes better and sometimes worse. The next document is Ex. 105 a letter of 24th July 1865, from the Deputy Commissioner of Hazaribagh which contains the following passage:

The state of mind of the Zamindar of Dhanwar having been questioned by his wife Rani Rambansi Kuer-who alleged that her husband had entirely recovered the use of his faculties and was able to manage his estate, although for many years previously the zamindar had been considered incapable owing to mental imbecility to look after his estate which had during that period been under the management of his mother, and stepmother it had become necessary to institute a proceeding in the civil Court to discover the real state of the zamindar''s mind. By a decision of the Zillah Court dated 24th December 1864, the zamindar was declared to be utterly imbecile and incompetent to manage his affairs and his estate was directed to be placed under the charge of the Court of Wards.

It does not appear that Major Boddam himself saw Ran Bahadur and the judgment of the Zillah Court has not been produced. All that the documentary evidence shows is that Ran Bahadur was found by inquisition to be of unsound-mind. But as Lord Macclesfield said in Dormer''s case [1724] 2 P. Wms. 262:

A lunatic in the eye of the law is never looked-upon to be desperate, but always at least in a possibility of recovery.

I have already quoted the letter Ex. RA-3. The genuineness of this letter was questioned, but in my opinion without any good ground. It bears the initial of Mr. Clair Smith and the registers contain reference not only to this letter but to the correspondence that followed upon it. The letter appears to be relevant as a statement of Rambansi Kuer u/s 32, Clause (2) or Clause (7), Evidence Act. It is not substantive evidence of the statement of Ran Bahadur, but in my opinion it is relevant as corroborative of the oral evidence on this point.

It seems to me impossible to disregard the oral evidence and it is consistent with the statement of Mr. Clair Smith that Ran Bahadur had lucid intervals. The documents already referred to sufficiently show the anxiety of the Ranis to keep Sheor Muhammadabad from the very beginning and the expense to which they went over its acquisition. The correspondence show that this property was kept at a loss. The Court of Wards found that it was not worth the rent that was being paid for it; but notwithstanding this it was saved from sale on at least two occasions. In view of its historical and sentimental importance to the Raj the evidence seems to me credible and sufficient to show that Ran Bahadur intended to incorporate this property with the impartible estate.

The decisions of the Judicial Committee above referred to do not throw any light on the question whether the Court of Wards has power to incorporate, that question not having been raised in any of the cases.

An examination of the relevant sections of the different statutes in force from time to time, namely, Sections 12, 16 and 18 of Regulation 10 of 1793, Sections 45, 49 and 50 of Act 4 (B.C.) of 1870, Sections 18, 40 49 and 50 of Act 9 (B.C.) of 1879 and Sections 14, 18 48 and 50 of the present Act, shows that no power of this kind is expressly conferred. A clear distinction runs through all these enactments between the powers of the manager and the powers of the Court of Wards. Power to incorporate is certainly not implied in any of the manager''s powers, but assuming (without deciding) that the powers conferred upon the Court of Wards in particular by Section 18 of the present Act and the corresponding sections in the earlier Acts are wide enough by implication to include a power to incorporate, the question is whether there is sufficient evidence that such power was exercised.

The evidence consists principally in the fact that all the properties of the estate--nankar, khalsa and kharidgi--were dealt with together and treated indifferently. The chalans (Exs. RF series) show that the collections from khalsa and nankar and kharidgi villages were all included under one chalan. Ex. 14(a) the annual return of the Court of Wards in 1901, after the release of the estate, shows the valuation of the estate under the heads "revenue paying and revenue-free estates under direct management" and "revenue-paying and revenue free estates sub-let," "tenures," "houses" and "Government securities," making no distinction of the different kinds of properties.

On the other hand the list of villages of 1877 and the list contained in the charge-sheet show the nankar, khalsa, khajidgi and bharna villages under separate heads. D.W. 4 says that there was no separation by separate circles, of collections of nankar, khalsa and kharidgi properties. There were four circles each in charge of a tahsildar and these circles were divided according to areas but not according to the character of the different properties belonging to the estate. All the kharidgi properties were treated and kept as part of the impartible estate. But he also says that in the cash-book separate entries used to be made in respect of collections of nankar, khalsa and kharidgi villages and that no question arose during his service whether the kharidgi villages were separate or part of the estate. He also admits that separate account-books were kept of nankar, khalsa and kharidgi villages. Now all this evidence is of the same kind as that referred to by the Judicial Committee in Rani Jagadamba Kumari v. Wazir Narain Singh AIR 1923 PC 59 as insufficient evidence of incorporation and it is further to be observed that it only deals with the course of management and that there is nothing beyond the sanction to purchase property indicating any intention on the part of the Court of Wards itself. In my opinion therefore it has not been shown that any of the properties purchased during the time of the Court of Wards were incorporated in the impartible estate.''

I now take up the question of merger. This affects Telonari, Chanchalnibagb (Darchanchi), Artoka, the malikana lands of Keshodih, the houses in Kharagdiha, Palangi and the houses and three bighas of land in Dhamutola. The argument on behalf of the plaintiffs is that all these interests were created before 1882 and consequently are unaffected by the Transfer of Property Act by reason of the provisions of Section 2(c). This view is supported by the decision in Hirendra Nath Dutt v. Hari Mohan Ghose [1914] 22 I.C. 966. It is also argued that before the Transfer of Property Act there was no law of merger in the mufassil: Womesh Chunder Goopto v. Raj Narain Roy [1868] 10 W.R. 15, Savi v. Punchanun Roy [1876] 25 W.R. 503, Jibanti Nath Khan v. Gokool Chunder Chowdry [1891] 19 Cal. 760. The learned Government advocate relied upon the decision of the Judicial Committee in Raj Krishen Datta Ram v. Raja Mumtaz. All Khan [1879] 5 Cal. 198 and on two decisions of the Calcutta High Court in Surja Narain Mandal v. Nanda Lal Singh [1906] 33 Cal. 1212 and Ulfat Hossain v. Gayani Das [1909] 36 Cal. 802. All these decisions were considered in Hirendra Nath Dutt v. Hari Mohan Ghose [1914] 22 I.C. 966 which was referred to by the Judicial Committee in Dulhin Lachhanbati Kumari v. Bodhnath Tiwari AIR 1922 P.C. 94 as "a valuable review of the series of decisions upon this branch of Indian law."

The interests which were before their Lordships in the last mentioned case were interests created before the Transfer of Property Act and the case was held to depend upon general law. Nevertheless the doctrine of merger was discussed and it was held that merger is not a thing which occurs ipso jure upon the acquisition of the superior with the inferior right and that there may be many reasons in the course of which the expediency of avoiding the coalescence of interest and preserving the separation of title may be apparent; and the question is whether such a coalescence of right was meant to be accomplished as to extinguish the separation of title which the records contain.

Their Lordships referred to the English equitable doctrine of merger as stated, in Ingle v. Jenkins [1900] 2 Ch. 368 where Farwell, J., had said that:

The principle by which the Court is guided is the intention and in the absence of express intention either in the instrument or by parol, the Court looks to the benefit of the person in whom the two estates become vested.

His Lordship refused to make any distinction in this matter between cases of charge and cases of lease. Now the rule is that where the absolute owner of an estate becomes also owner of a charge thereon, in the absence of any intention either express or presumed on his part merger or extinguishment of title will take place. In Tyrwhitt v. Tyrwhitt [1863] 32 Beav. 244, Romilly, M.R., said in dealing with a case where a charge had become vested in the owner of the inheritance of the estate:

The rule is this: Prima facie the charge merges in the inheritance, but the presumption may be rebutted if it be shown that the intention of the owner of the charge was that it should not merge. Three tests are usually applied for the purpose of ascertaining whether the owner of the charge intended that it should merge in the inheritance, at the time when he became entitled to the absolute interest of the charge. First, any actual expression of that intention; secondly, where the form and character of the acts done are only consistent with the keeping of the charge on foot, and thirdly, such an intention may be presumed, when though a total silence in all other respects pervades the matter it appears that it is for the interest of the owner of the charge that it should not merge in the inheritance. This last point does not assist the case of the plaintiff on the present occasion. Sir Tyrwhit Jones was owner in foe-simple of the land on which �4,200 was charged and in such cases it is the presumption of law, which is also in accordance with the ordinary custom of the world that it is for the interest of the owner of the estate that the charge should not be kept on foot.

It may be noted that Sir Tyrwhitt Jones was a person of unsound mind. In Adams v. Angell [1877] 5 Ch. D. 634 Jessel, M.R., put the matter thus:

Now in a Court of equity it has always been held that the mere fact of a charge having been paid off does not decide the question whether it is extinguished. If a charge is paid off by a tenant for life, without any expression of his intention it is well established that he retains the benefit of it against the inheritance. Although he has not declared his intention of keeping it alive, it is presumed that his intention was to keep it alive, because it is manifestly for his benefit. On the other hand, when the owner of an estate in fee or in tail pays off a charge, the presumption is the other way, but in either case the person paying off the charge can, by expressly declaring his intention, either keep it alive or destroy it.

These being the guiding principles in this matter, I shall now deal with each case in turn, but it may be observed generally that there is no evidence of any intention to prevent a merger except in the case of Chanchalnibagh. Whereas the kharidgi and bharna villages were at least shown in separate lists by the estate, this was not the case with these properties.

Telonari: This village having been granted as khorposh or maintenance was a resumable tenure within the meaning of the Chota Nagpur Tenancy Act, because it is resumable on failure of the male heirs of the grantee. I can see no difference in principle between such a tenure and a lease or a charge and as this tenure has come to the owner of the estate, it seems to me to have bean extinguished. It was conceded by the learned advocate for the plaintiffs that Telonari being part of the original impartible estate would have been impartible if it had been resumed on the extinction of the male heir of the khorposhdar but it was argued that if it is acquired in some other way, it is liable to partition. It is difficult to sea why, if the property is so affected with the incident of impartibility that it will automatically become part of the impartible estate on resumption it should not be subject to that incident when practically the same state of things is brought about by the return of the property to the hands of the person to whom it would have come on resumption by the extinction of the right of the khorposhdars and their transferees. The argument involves the conclusion that the property remains partible as long as the right of resumption does not accrue and then becomes impartible--a conclusion that can hardly be supported.

Palangi and the three bighas of land in Dhamutola clearly fall within the principle of merger.

In the case of the malikana right in Keshodih it was argued for the plaintiffs that there was here no case of superior and inferior interests and that what was purchased were malikana lands which were a distinct estate from Keshodih. These malikana lands were apparently carved out of the village in favour of the former proprietor who had not undertaken to pay the Government revenue, and as it thus appears doubtful whether this can be said to have been part of the impartible estate settled with the predecessor of the defendant it is not clear that there is any merger here.

The position in Artoka was that the Raj was the superior and had granted the village in lakheraj to certain Baids who had created a mukarrari lease of a portion thereof. This mukarrari was acquired by the Raj. Consequently there could be no coalescence, because there is an intermediate estate of the Baids still in existence to prevent it, and moreover the mukarrari interest was only over a portion of the property.

The conveyances of lands in Chanchalnibagh were taken not in the name of the Raja, but in the names of two different persons, Rambansi Kuer and Harihar Prasad, and this in itself would indicate an intention to prevent a merger. And the same thing appears from the fact that the khairat is still shown as an existing tenure in the Record-of-Rights in the name of Rambansi Kuer as holding under the Raja. I do not see why there should be any merger of the house property in Kharagdiha and Dhamutola. The result is that the plaintiffs succeed in respect of Chanchalnibagh No. 35 and No. 2 of the second list, Artoka No. 56, the houses in Kharagdiha and Dhamutola Nos. 4 and 74 of the second list and the malikana lands of Keshodih No. 77 in the second list and fail in respect of Telonari Nos. 31 and 1 of the second list and Paiangi No. 67 and three bighas of land in Dhamutola No. 76 of the second list.

The Cash Balance,

In dealing with the question of the 1931 P/55 & 56 cash balance at the death of Ran Bahadur the Subordinate Judge found the plaintiffs entitled to a share in (a) the rents unrealized to the extent of Rs. 21,158, (b) the cash balance of Rs. 8,731, and (c) Government securities worth Rs. 8,027. The learned Government Advocate contended that this finding ignored the terms of the issue framed, inasmuch as these figures are taken from the final account prepared by the Court of Wards when it made over charge and the account purports to be made up to 31st March 1901, whereas Ran Bahadur died in October 1900. In my opinion there is no substance in this objection. As regards the unrealized rents, Ran Bahadur died at the beginning of the agricultural year and the rents shown as unrealized could only be rents that had accrued due up to the end of the previous agricultural year, i.e., during his lifetime. The plaintiffs are therefore entitled to their share of these rents, but the sum allowed by the Subordinate Judge must be decreased by the deduction of Rs. 413 and Rs. 1,261 sums which are noted in the return as representing bad or doubtful claims. The return further shows that the value of the Government securities at the close of the previous year had been Rs. 8,038 so that the learned Subordinate Judge did not err in favour of the plaintiffs in allowing Rs. 8,027 which is shown as the value at the close of the year under report i.e., 1900-1901. As to the cash balance the plaintiffs are in my opinion, entitled to their share of this sum. It cannot be assumed that the Court of Wards made any collections after the death of Ran Bahadur and this cash balance must therefore be taken to represent the cash balance at the time of his death.

There remains the question of costs. The learned Government Advocate contended that as this question of self-acquisition was not raised at the trial, the defendants are entitled to all the costs of the remand. Now the general rule in partition suits is that each party should bear its own costs up to the preliminary decree, and in my opinion there is no good reason to depart from that rule in this case. The defendant Iswari Prasad was in the position of karta and if he had put all his information at the disposal of the junior members of the the remand would not have been necessary.

The result is that there will be a preliminary decree for partition. The share of plaintiff 1 and his four sons is declared to be eight annas and the share of the two sons of Iswari Prasad who have joined the plaintiffs is declared to be four annas and the share of the defendants four annas. There will be a partition of the immovable properties of the joint family as detailed above, namely, of the first list, Nos. 1--16, 18, 22, 23, 24, 26--29, 32, 33, 34, 35, 49--54, 56 and 57, and of the second list Nos. 2, 3, 4, 5, 6 and 7--65, 74, 76 and 77; and of the third list No. 8 the plaintiffs retaining No. 27 the house in their occupation. The claim for the partition of the other immovable properties is dismissed. There will also be partition of the moveables as directed in the first judgment of this Court and of the cash balance as determined above. The ordinary karta''s account will be taken of the joint family property and the debts binding on the joint family property as they stood at the date of the institution of the suit. Each party will bear its own costs throughout.

Learned Counsel for the respondents contended that the costs of the trial Court so far as they related to the impartible estate should be allowed to the defendants. But in all the circumstances of this litigation we see no reason to depart from the usual order made in partition suits.

Fazl Ali, J.

I agree.