JUDGMENT
Devadoss, J.
1. The plaintiff’s suit is for partition and incidental reliefs. The Subordinate Judge granted a decree for partition in respect of properties set out in B and C schedules but dismissed the plaintiff’s suit as regards the properties mentioned in A schedule. The plaintiff appealed to the District Court of West Tanjore and the District Judge granted a decree for partition in respect of A schedule properties. The first defendant has preferred this second appeal against the District Judge’s decree.
2. The case of the plaintiff is that the properties mentioned in schedule A are ancestral and that he is entitled to a half share in them. The defence is that by a Will dated 10th September 1912, the father arranged that the plaintiff should get only 2 1/2 acres of the ancestral properties and the rest should go to the first defendant the elder brother. The Subordinate Judge found that Ex. A was inoperative as a Will but it evidenced a family arrangement to which the plaintiff was a party and under that arrangement the family properties were divided between the two brothers and that the plaintiff was not entitled to set aside that arrangement. The learned District Judge in para. 7 finds that Ex. A being invalid and inoperative as a Will, the plaintiff gave his consent to it being under the impression that his father had a right to make an unequal division of ancestral lands. The plaintiff’s case as disclosed in the plaint is that fraud was practised upon him by the father and the elder brother and that he consented to the arrangement believing what they said. In his evidence he wanted to make out some sort of coercion on the part of the father. The learned District Judge finds that the plaintiff agreed to the arrangement under Ex. A owing to a mistake of law. If Ex. A evidences a family arrangement, the plaintiff cannot go behind it, unless he could prove that he was either deceived or coerced into agreeing to the arrangement or that he acted under a mistake of fact or under undue influence.
3. Exhibit A is the Will of the father of the plaintiff and the first defendant, and it was executed on the 10th September 1912. In that he says:
I have made the following arrangement in view of the same, in order that my heirs may afret my death…and inasmuch: as my two sons Sadasivam and Shanmugam are regarded equally by me in respect of the same and inasmuch as I am actuated by the thought of effecting equal division in the matter of the enjoyment of the properties and I have for that purpose executed and left this Will, inasmuch as I have effected division of my properties under this according to their shares and and have left the properties to the said Shangam and have executed and left this will.
4. It is well-settled that a Hindu father cannot devise his ancestral property to his sons. The Will, therefore, is inoperative as a Will. The question is: Does it evidence an arrangement come to between the father and the sons? Both the plaintiff and the 1st defendant have signed the Will with the words “in consent” and their signatures appear just below that of Chandrasekaram Pillai, their father. The father died on 17th September 1912.
5. From the evidence and the attendant circumstances it is clear that an arrangement was made as regards the division of the family properties and the father in accordance with that arrangement made a Will. The Subordinate Judge has found that Ex. A contains the arrangement come to between the three persons. The learned District Judge does not differ from the Subordinate Judge on the question of the family arrangement. His reasoning in para. 4 of his judgment is:
Ex. A being invalid and inoperative as a Will there must be clear evidence to show that after their father’s death, they, the plaintiff and the first defendant, agreed to divide the properties in the manner set out in Ex. A.
6. The first defendant does not rely upon any arrangement come to after the father’s death. It is somewhat difficult to follow the reasoning of the learned District Judge in para. 4. He says: “No partition of the A schedule items was effected by Ex. A.”
7. It is not necessary that in order to constitute partition arrangement the properties of the family should be actually divided by metes and bounds. The actual division by metes and bounds may be postponed. It is sufficient if their shares are indicated or what properties should be taken by the parties to the partition arrangement. If the members of a joint family agree that certain shares or certain properties or portions thereof should be taken by them then that would be quite sufficient to give them a divided status. The subsequent conduct of the parties is only evidence of what they agreed to. If the arrangement itself is clear the subsequent conduct is not of great importance. But conduct inconsistent with the arrange went may be taken as evidence of there being no arrangement. In this case there is ample evidence that the plaintiff and the first defendant acted in conformity with the arrangement set out in Ex. A. (Here the judgment discussed evidence to show that they so acted and proceeded). What is strongly pressed upon the attention of the Court is that both the plaintiff and the defendant continued to live as members of a joint Hindu family till dispute arose in 1917, and, therefore, it must be taken that there was no partition arrangement at the time of Ex. A. Reliance is placed upon Ex. F-1 in which the plaintiff and the first defendant are described as undivided sons and legal representatives of Chandrasekaram Pillai. Chandrasekaram Pillai obtained a decree against one Kunja Achi and others. An application for execution was filed by the legal representatives of Chandrasekaram Pillai in which the plaintiff and the first defendant are described as undivided sons of Chandrasekaram Pillai. That description is a true description, for, the father and the sons were undivided and no inference adverse to the case of the defendant can, therefore bedrawn from the description in Ex. F-l. The mere fact that two divided brothers live together would not make them members of an undivided Hindu ‘family. It is not uncommon for divided members either for the sake of convenience or for the sake of economy or for the sake of peace living together in the same house. The evidence being all one way there is no difficulty in arriving to the conclusion that both the plaintiff and the 1st defendant acted in accordance with the terms of Ex. A till they quarrelled in 1917.
8. In Brijraj Singh v. Sheodan Singh [1913] 35 All. 337 the facts were that a Hindu father governed by the Mitakshara Law made a Will on the 26th November 1895, purporting to effect a division of the ancestral property amongst his three sons. The recital in the Will was:
n order to avoid dispute after my death I have at present while in a sound state of body and mind, and of my own freewill and accord divided the property among my sons and heirs as follows.
9. And another recital was:
if at any time I 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.
10. The Privy Council held that the document was not a Will but was intended to operate from its date and was in fact a family arrangement contemporaneously made and acted upon by all parties, the effect of which was, under the circumstances of the case, to create a partition of the joint ancestral property and as regards the clause that in case ho found mismanagement, etc., that ho would cancel the Will, their Lordships observed:
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 even at all. It is certainly quite insufficient to outweigh the overwhelming evidence that this was a family arrangement accepted by all parties.
11. Mr. Krishnaswami Iyer tries to distinguish this case from the present on the ground that the Privy Council relied upon the properties having been divided and the sons being put in possession of the soparate properties from the time of the Will. As I have already observed it is not necessary that actual division by metes and hounds should take place in pursuance of an agreement to divide. Such conduct is, no doubt, strong evidence of the agreement. But the absence of any conduct on the part of the persons to the agreement in conformity with it for sometime would not by itself negative the inference of a partition arrangement.
12. In a recent case Lakhmi Chand v. Anandi A. I .Rule 1926 P. C. 54 hold that an arrangement evidenced by a document called a Will, will be given effect to though it is invalid as a Will. In that case two brothers who had no male issue jointly executed a Will providing for the share of each of them going to the wife and afterwards to the daughters in case they died leaving without any male issue. One of the brothers died leaving a wife and a daughter. The other brother claimed the property on the ground that the document was a Will and had no legal effect The Privy Council held that it was a mutual agreement between the two brothers and that it could not be upset by one of them. In this ease also it cannot be said there was no mutuality for all the three persons agreed to the arrangement under Ex. A.
13. It is next urged for the respondent that there must be bona fide disputes in order to treat the arrangement as a family arrangement. It is not necessary that: there should be a pending litigation or a prospective litigation in order that an arrangement may be considered a good family arrangement. In the well-known case of Williams v. Williams [1867] 2 Ch. A. 294 the family arrangement was upheld as it was found that the arrangement was come to in the interest of the family and that there was some consideration for that arrangement. Lord justice Turner observed at page 304 [of 1867-2 Ch. A.].
The Vice Chancellor has, I think, rested this part of the case upon the footing of the cases as to family arrangements. It was strongly argued for the appellant that this case does not fall within the range of those authorities; that these cases extend no further than to arrangements for the settlement of doubtful or disputed rights, and that in this case there was not, and could not be, any doubtful or disputed right; but this, I think, is a very shortsighted view of the cases as to family arrangements.
They extend, as I apprehend, much farther than is contended for on the part of the appellant, and apply, as I conceive, not merely to cases in which arrangements are made between members of a family for the preservation of its peace, but to cases in which arrangements are made between them for the preservation of its property. The re-settlement of family estates, upon an arrangement between the father and the eldest son on his attaining twenty-one, may well be considered as a branch of these cases, and certainly this Court does not in such cases inquire inot the quantum of consideration.
14. Lord Chelmsford, Lord Chancellor, observed that:
the Court will not be disposed to seau with much nicety the amount of consideration.
15. This case was followed by a Bench of the Calcutta High Court in Helan Dasi v. Durga Das Mandal [1906] 4 C. L. J. 323 (in that case the arrangement was a partition arrangement) in Satya Kumar Banerjee v. Satya Kirpal Banerjee [1909] 10 C. L. J. 503 where also there was a partition arrangement. Mr. Justice Mukerjee followed the decision in Helan Dasi v. Durga Das Mandal [1906] 4 C. L. J. 323 to which he was a party, and after referring to Gordon v. Gordon [1816-21] 36 E. R. 910 observed:
The family arrangement concluded in honest error, is binding, but not so if either party has been misled by the concealment of material things, for the family agreement requires the, communication of all material circumstances. The Lord Chancellor stated that where a family arrangement had been fairly entered into without concealment or imposition on either side, with no suppression of what is true or suggestion of what is falce, although the parties might have greatly misunderstood the situation and mistaken their rights, a Court of Equity would not disturb the quiet, which was the consequence of the agreement, but when the transaction had been unfair and founded upon falsehood or misrepresentation, the Court of Equity would have very great difficulty in permitting such a contract to bind the parties.
16. In this case the specific allegations put forward by the plaintiff of coercion and fraud having failed his plea that he was ignorant of his rights under the Hindu Law is not one which can be upheld. He was about 18 years of age at that time. If his statement is true that he was unaware of his rights what did he do for five years when he must have known what his rights were? I am not disposed to attach any importance to the statement that he was not aware that he was entitled to an equal share with his father in respect of the ancestral property. It is not necessary to consider what were the reasons which induced the plaintiff’s father and his two sons to come to the arrangement under Ex. A. If reasons were wanted for the plaintiff’s consenting to the arrangement there were several but it is unnecessary to go into this question as I hold that the ignorance of his rights on the part of the plaintiff could not possibly furnish a proper ground to enable him to go behind the arrangement come to in his father’s lifetime.
17. In the result the appeal is allowed, the decree of the District Judge is set aside and that of the Additional Sub-Judge restored with costs here and in the Court below.
