JUDGMENT
1. This is a plaintiff's first appeal arising out of a suit for a declaration and for the completion of a deed of partition in accordance with the terms agreed upon between the parties. The facts of the case which have given rise to this appeal may briefly be stated as follows : One Tota Ram had three sons, Piare Lal, Atma Ram and Lachmi Chand. Mt. Sarsuti is the widow of Piare Lal. Kishan Lal and Debi Prakash are the sons of Atma Ram. Piare Lal died in. 1918. Tota Ram died on 21st October 1927. Tota Ram and his sons admittedly were members of a joint Hindu family. The family owned extensive properties in the District of Dehra Dun. The present suit was instituted by Atma Ram but he died during the pendency of the suit and thereupon his sons named above were brought on the record as his legal representatives.
2. The plaintiffs allege that Atma Ram, and Lachmi Chand, defendant 1, made a partition of the properties owned by the joint family privately and each of them got possession over the plot which was allotted to his share. According to the plaintiffs' case this partition was made orally and after the partition had been made a memorandum was written out in which the properties allotted to each side respectively were noted down. It was also noted in the memorandum that both sides would pay a sum of Rs. 60 monthly to Mt. Sarsuti, the widow of Piare Lal. In the memorandum it was also noted that a complete and formal deed of partition will later on be executed. All this is said to have happened on 3rd February 1928. The plaintiffs alleged that Lachmi Chand, defendant 1, in the case resiled from his position and refused to execute the deed as had been agreed upon between him and Atma Ram. Atma Ram plaintiff thereupon instituted a suit in which the following reliefs were claimed : (a) It may be declared by the Court that according to the private petition the lots consisting of the properties given in Schedule (b) came to the plaintiff's share, that the said partition is binding upon the parties, that all the rights which the defendants had to the property mentioned in the said lot before the private partition ceased to exist from 3rd February 1928 and that the plaintiff is the owner in possession of the said lot. (b) The defendant may be ordered to execute and complete along with the plaintiff a deed of partition according to the terms given in the bond drawn in the shape of a memorandum dated 3rd February 1928 and he may be directed to get the same registered. (c) Note : - This relief was abandoned during the pendency of the suit, (d) In case the plaintiff is held to be dispossessed from any portion of the property given in Sch. (b) a decree for possession thereof may be passed in favour of the plaintiff. These were the principal reliefs claimed.
3. The suit in the first instance was instituted against Lachmi Chand, defendant 1, alone, but Unkar Prasad, defendant 2, who is a son of Lachmi Chand, was brought on the record as one of the defendants. The suit was resisted by both the defendants. Lachmi Chand's defence was that he had been made to sign the memorandum mentioned above as a result of fraud and that he was not in any way bound by it. It was denied by him that any partition of any property was made between him and Atma Ram. Unkar Prasad also denied the partition, said to be private partition, set up by the plaintiff and further pleaded that he was not in any way bound by any such partition even if the fact be established on the ground that it was against his interest. The case proceeded and the plaintiff and Lachmi Chand filed a compromise in the Court of the Civil Judge of Dehra Dun. The learned Judge passed a decree against the defendants on the basis of that compromise. An appeal was referred to this Court by the minor Unkar Prasad against this decree. This Court set aside the decree as it had been passed ex parte against defendant 2 and the case was remanded to the Court below for trial.
4. It appears that after the remand of the case by this Court the plaintiff did not make any effort to ask the Court below to decide the question as to whether or not the compromise arrived at between the plaintiff on one side and Laohmi Chand on the other should be enforced against the minor defendant 2 who was not a party to it. The parties allowed the Court to treat it as a case in which the subsequent compromise had been set aside and therefore asked the Court to try the case on the allegations made in the plaint and the written statements which had been filed in the case.
5. The learned Judge of the Court below framed five issues which are to be found at p. 75, of the paper book. One of the points which the learned Civil Judge has decided in this case was as to whether or not the deed which is styled as memorandum or draft agreement dated 3rd February 1928, was a complete deed partitioning the property and inadmissible in evidence for want of registration. The view taken by him is that this memorandum of 3rd February 1928 was a deed in which a complete partition was made and as it was not registered it was not admissible in evidence. On this ground alone the learned Civil Judge has dismissed the plaintiffs' suit. The plaintiffs have come up in appeal against the decision of the learned Civil Judge to this Court. The first question that has to be considered is whether the decision of the learned Judge of the Court below holding that the deed dated 3rd February 1928 is a completed deed of partition requiring registration is correct and whether there was any such question for determination before the learned Judge. It will be seen from the pleadings of the parties that it was neither the case of the plaintiffs nor the case of the defendants that this deed of 3rd February 1928 was a completed partition deed which required registration. "The plaintiffs styled it as a 'draft deed'. Lachmi Chand defendant says the same thing. The plaintiffs in their plaint nowhere state that the aforesaid deed was a completed deed of partition. The defendants similarly do not say this. In fact the case of the defendants is that there never was any partition and therefore they could not possibly have said that the deed of 3rd February 1928 was a completed partition deed. It is not easy to understand how the learned Judge of the Court below considered it necessary to give a decision on this point. The learned Judge in his judgment at p. 76 complains about the Counsel who appeared in this case before him and makes the following observations:
If counsel deliberately disregard the pleas that originally were put forward and launch out into new, unexpected and, it must be admitted, ingenious lines of argument, it is very difficult for the Court to get at the truth in the matter. Counsel for the plaintiff at the time of first starting the case before the Court originally laid great stress on the document and both counsel for the plaintiff and counsel for the defendants considered this contentious deed to be the real crux of the case, but counsel for the plaintiff when arguing finally before the Court based the whole of his case on an alleged oral partition of which, he says, this particular deed is merely a memorandum. In the first place this is a line of argument which he is precluded from taking up. It is nowhere to be found in his plaint ; it was never understood by the opposite parties or by the Court and one is forced to the conclusion that it had never even been thought of by the plaintiff himself until at the very close of the case, when the case came up for argument. There is not the slightest suggestion in the plaint that the plaintiff was relying on an oral partition.
6. In our opinion these remarks are not justified. If the Court were only to take Ian intelligent interest in the case before it reaches the stage of the argument and to make an effort to understand the pleadings of the parties, no difficulty would arise. If any point is not clear, it is always open to the Court to examine the parties and find out what the case of each party is. The whole difficulty arises when the Court allows the parties to produce evidence of all kinds without taking any interest in the case. In the case before us the learned Judge is entirely wrong in stating that the plaintiff had never set up the case of an oral partition. A perusal of the plaint would show that the plaintiff all along set up a case of oral partition. The plaintiff in para. 3 of the plaint stated that a division had been made. He further mentioned that each party had taken the lot allotted to his share and that a complete partition had already been made and that the paper written on that date was merely a memorandum. It is clear to us that somehow or other the Court allowed one of the parties to argue before it that the deed of 3rd February 1928 was a completed partition deed but if the Court had known what the pleadings of the parties were, it could not have permitted this question to be raised for the simple reason that the point had not been taken either by the plaintiff or by the defendant. The reasons given by the learned Judge for holding that this deed was a completed partition deed, do not appeal to us. The deed of 3rd February 1928 is printed at pp. 84 and 85. A perusal shows that two columns are made in it at one page. The property allotted to the plaintiff and defendant respectively is mentioned in these two columns separately and then there are other remarks.
7. It is stated first that Mt. Sarsuti who is occupying one of the family houses will continue to reside in a portion of it and that she will further receive a sum of Rs. 60 a month and that both Atma Ram and Lachmi Chand will contribute Rs. 30 each. Then it is recited that certain villages will be charged with the maintenance and that if either party to this deed did not pay his share of the maintenance due to the Musammat aforesaid, then she will have a right to institute a suit and get possession over the same and appropriate its income towards her maintenance but the widow will have no right whatsoever to make any transfer. After this it is stated that according to this parties will be entitled to execute a deed and register it and get mutations made in their respective names and that no party shall have any objection to it. Then there are certain provisions made about some mortgaged property. In the concluding portion of the deed it is recited as follows:
Moreover, the property which is now excluded from partition is money lending business, mortgage-deeds, promissory notes, etc, together with the money deposited in bank. In short any property other than the property divided, shall be held in common by the parties so long as no adjustment has been made in respect thereof. All the rents and house rents, etc., of the property divided which are due up to 31st January 1928 shall belong to the parties. Each party shall be entitled to realize the income from the property comprised in his lot and similarly he will be responsible to pay the Government revenue and other costs from 1st February 1928.
8. The learned Judge of the Court below was of opinion that this was a partition deed complete by itself and should have been registered. In referring to the argument addressed to him in respect of the following expression:
Bamujib iske bazabta dastawez fariqa in tehrir via takmil karke ragistry kradenge aur kagzat sarkari men indraj kra lenge aur ispar kisi farina in kokoi uzur nohoga, he remarked that this referred only to the term about maintenance allowance preceding the above expression and not to the other terms preceding it. We are altogether unprepared to accept this view of the learned Judge. It is not at all reasonable to suppose that the parties were anxious only to have a registered deed in respect of the agreement relating to maintenance allowance and were not at all anxious to have a registered agreement in respect of the properties, the value of which is very large. One of the reasons given by the learned Judge in support of his view is that the condition for the completion and registration of a further deed is found in the middle of the page. That is, in our opinion, no reason for holding that it does not relate to the entire agreement arrived at between the parties. We are, after a perusal of this deed, clearly of opinion that the agreement between the parties was that the terms agreed upon between them relating to the partition will have to be incorporated in a fresh deed which will be a deed of complete partition and which will be registered. We therefore hold that the finding of the learned Judge as regards this point is wrong. We wish further to point out that there was no occasion for the learned Judge to have gone into this question at all. At p. 76 the learned Judge states that counsel for the plaintiff had argued before him that it was never part of the defendants' case that the document was a deed of partition itself and therefore counsel contended that the Court should not consider whether it was a partition deed or not. We think that this was the right view. If the plaintiffs' counsel did not ask the Court to decide this question, then there was no need for the Court to have gone into it specially in view of the fact that the defendant himself never set up any such case.
9. Having disposed of the point on which the decision of the learned Judge of the Court below is based we now proceed to consider the other points which have been raised in this appeal. The first question of importance is as to whether or not the case which has been set up by the plaintiff about the oral partition has been established. Before we proceed further we wish to state here that the learned Judge of the Court below has not given any finding on the question as to whether or not there has been any partition under an oral agreement. The reasons for adopting this course are mentioned by him in his judgment at p. 76 and we have already referred to them. In our opinion the learned Judge committed a grievous error in not giving a finding on this most essential point in the case. We think that very likely the learned Judge of the Court below did not appreciate the point involved in the case.
10. At p. 76, as we have already pointed out, the learned Judge gives his reasons for refusing to give a finding on the question of an oral partition. We find ourselves wholly unable to agree with the view taken by him. At one place at p. 76 he says:
...but counsel for the plaintiff when arguing finally before the Court based the whole of his case on an alleged oral partition of which, he says, this particular deed is merely a memorandum. In the first place this is a line of argument which he is precluded from taking up. It is nowhere to be found in his plaint, it was never understood by the opposite parties or by the Court and one is forced to the conclusion that it had never even been thought of by the plaintiff himself until at the very close of the case, when the case came up for argument. There is not the slightest suggestion in the plaint that the plaintiff was relying on an oral partition. A glance at the issues will show that there is no mention of any oral partition, that the whole of the (sic) suit is one which revolves round the registration of this particular document in suit and a determination of what this document is. If it had been understood by any of the parties originally that the real basis of the plaintiff's case was not the deed but an oral partition, then certainly the Court would have framed an issue on this particular point, the trend of the. evidence would undoubtedly have been different and the defendants might have been able to lead evidence to show that no previous partition, oral partition, did take place. I hold therefore that this 'oral partition' line of argument cannot be taken up. It is a surprise, plea, a deliberate attempt to take the opposite parties unawares and cannot be for one moment allowed to go unobserved. It would be an evasion of all the laws of pleading and a denial of justice if a party were to be allowed to change the grounds of his pleadings at the time of argument.
11. These observations made by the learned Judge clearly go to show that he did not understand the nature of the pleadings in the case nor what cases the respective parties had set up. If the learned Judge had only taken care to go into the plaint, he would have understood immediately that the whole case of the plaintiff rested on an oral partition. We need only refer to the allegations made in paras. 3, 4, 5, 6 and 19 of the plaint. The plaintiffs took considerable pain to make it clear that they were relying on a private partition which had taken place between the parties. In para. 19, the plaintiffs, in most clear terms, ask the Court to declare that according to the private partition they are claiming relief for a declaration. The defendant denied these allegations. In view of the clear allegation in the plaint, we are amazed that the learned Judge should have thought that the plaintiffs had not set up a case of oral partition. His view that the real question which he had to decide was the interpretation of the memorandum referred to above is altogether erroneous. There was no such question before the Court. Neither the plaintiffs, nor the defendants had taken any plea to that effect and we have no doubt that the learned Judge went entirely wrong in holding that that was the real question for determination in the case.
12. The observations of the learned Judge to the effect that the plea as regards the oral partition was "a surprise plea" are altogether wrong. As we have already pointed out, it appears to us that both the parties were fully aware that the principal question for determination was as to whether or not a private partition had taken place and whether (sic) in respect of the two allotments (sic) under the alleged oral partition had changed. The plaintiffs produced evidence to show that there had been a change of possession and in view of this fact, it is a matter for great surprise to us that the learned Judge should have thought that the plea as regards the oral partition was "a surprise plea". As the learned Judge has not given any finding on this most important point in the case, we have been obliged to go through the evidence on this point. The oral evidence produced on both sides has been read over before us by learned Counsel and we give our finding on this important question involved in the case.
13. The plaintiffs' casestands thus. They say that Atma Ram and Lachmi Chand were not getting on well and so their friends and relations proposed that there should be a partition of the family estate between them. On 3rd February 1928 the parties met together and a partition was effected between them some properties were given to Atma Ram and some to Lachmi Chand. It was agreed at that very time that each party would take possession over the properties allotted to him and that this matter will be mentioned to the tenants and other interested persons by the parties. Then a memorandum or draft agreement was prepared noting down the terms of the partition which had been orally effected and afterwards a deed was to be executed. It is further the plaintiffs' case that as a result of this private partition each party got possession over the properties allotted to him and started making collections. The defendants deny this oral partition. They do not admit that as a result of this alleged oral partition possession changed. If it be held that possession changed then the contention raised on behalf of the plaintiff that the alleged partition was good will be well founded. There is nothing in Hindu law which prevents parties from making private partition orally in respect of the immoveable property provided possession changes. If two brothers owning immoveable properties decide to partition the same, it is open to them without executing any deed to agree between themselves what share each of them would get and then to make over possession in accordance with those terms but there can be no partition of any immoveable property without change of possession. The only other method for partitioning the immoveable properties is to execute a registered deed.
14. After consideration of the evidence as regards the change of possession which has been adduced in this case by the plaintiffs we are of opinion that the plaintiffs have hopelessly failed to make out a case that there was a private partition of the property and that possession changed. The terms of the deed to which we have referred above do not support the contention raised on behalf of the plaintiff. Whenever parties wish to make a partition it will happen that they will have first to consider how the properties are to be divided. This matter can be settled by them either orally or by writing. When the property which is sought to be divided is large, it will generally happen that after the mode in which the properties are to be divided is settled, the parties will make a memorandum and then subsequently to effect the partition a registered deed is executed. It appears to us that in the case before us there were disputes between two brothers; they sat together and decided the method in which the various properties should be partitioned. Bach side agreed that he would take such and such property. After that those terms were recorded in what both parties agreed to be a memorandum or yaddasht or maswada and it is clearly recorded in that paper that in accordance with the terms mentioned therein a fresh deed will be executed by the parties and will be registered. This does not mean that the partition was complete. There is no doubt that the intention of the parties was that a further deed was to be executed, that it was to be registered and then parties will be entitled to apply for mutation in respect of the allotments agreed to be made to each of them.
15. The evidence on which reliance was placed on behalf of the plaintiffs as regards the question of possession is not reliable and does not prove that possession actually passed. The plaintiffs rely on a statement made by Lachmi Chand, defendant, in his statement as witness that after the date of the partition he has been making realizations and that before that he had never realized any income from the joint property himself. Some witnesses are also examined who are tenants and who say that payments were made to the person to whom the property was shown to be allotted in the memorandum. But all this can be explained very easily. In Ex. 1 printed at p. 84 which is the memorandum, it was mentioned that each party shall be entitled to realize the income from the property comprised in his lot and similarly he will be responsible to pay the Government revenue and other costs from 1st February 1928. This was merely an arrangement between the parties that pending the completion of partition, each party should be entitled to realize the income from the property and each bound himself further to pay the land revenue. As each of them agreed to pay the land revenue, therefore each of them also got the right to realize the income in respect of the allotment which was to go to him eventually after the completion and registration of the deed of partition, but so long as that was not done the position of the parties did not change. Each remained a coparcener in the joint property and that position would have changed only after the execution and registration of the deed.
16. The plaintiffs were in this difficulty that they could not succeed in getting a decree unless they could show that there had been a complete partition. As the deed of partition had not been executed and registered, they could not come to Court to get possession unless they asserted that a partition had already taken place; nor could they succeed in getting a decree for specific performance because of the presence of defendant 2, who was a minor. They were apprehensive that the minor might resist the claim on the ground that the proposed partition was not just so far as he was concerned and therefore there should be no decree for specific performance. In these circumstances they took the plea that a partition had already been made. The story that possession changed is very difficult to believe. We have on the record that within a few days after the date on which the alleged oral partition was made disputes arose between the parties. Lachmi Chand somehow or other did not like the proposed partition. Probably it did not suit him or he may have been advised by his relations that it was not to his interest. He resiled and would not execute the deed. The first step which plaintiffs' father Atma Ram took was to get this draft deed registered by himself and by Lachmi Chand. As it was not a completed deed of partition, it was not all necessary to get it registered. If (sic) reason Atma Ram thought that if should be registered, he was quite at liberty to do so, but that would not create any right in his favour which would be more than the right which he had under the unregistered memorandum. The evidence that both Lachmi Chand and Atma Ram went to various tenants and told them to whom the rent should he paid is hardly worthy of credence in view of the fact that it appears that they started fighting with each other immediately after the deed, and it is not reasonable to suppose that anyone of them was in such a frame of mind as to permit the other to take exclusive possession over the property when the oral partition was being disputed.
17. For the reasons given above we are of opinion that the plaintiffs' story that after the oral partition possession changed and that each party got possession over the property allotted to him is not true and has not been established. According to our opinion, the evidence does not prove that there was any oral partition. All that has been established is that there was an agreement to partition. The parties agreed how the property was to be divided and the terms were noted down in the agreement Ex. 1. The partition could only have been completed if a registered deed of partition had been executed. This being our view, it must be held that the plaintiffs cannot ask for a declaration that there was a private partition at which the property now claimed by them was allotted to them or that they have been owners and in possession exclusively of that property.
18. The next question which calls for consideration is whether in this case the defendants can be compelled to execute and complete a deed of partition according to the terms of the agreement, dated 3rd February 1928, and to get it registered. The agreement to partition the family estate was between Atma Ram on One side and Lachmi Chand, defendant, 1 on the other. Lachmi Chand set up a case in the Court below of fraud and misrepresentation under which he had been induced to agree to the partition. Laohmi Chand is a man who has no hesitation in making false statements so long as they suit him and in this case the defence which was set up by him has been characterized by the learned Judge of the Court below, who heard the evidence, to (sic) false. But we have to remember that his son was a minor and he is entitled to show that the agreement to partition made between his father and his father's brother should not be enforced against him because it is not fair to him. In the case before us it is complained on behalf of defendant 2 who was a minor at the time of the above-mentioned agreement of 3rd February 1928 that the agreement to partition made by his father was not fair and he should not be held bound by any such agreement. This being the case, it is obvious that no decree for specific performance of an agreement arrived at between the, father of defendant 2 on one side and his brother on the other can he passed unless it is shown that the agreement to partition was fair and did not injuriously affect the interest of the minor. The question as to whether or not a particular agreement is for the benefit of the minor would depend on the evidence produced in the case. In the case before us the minor desired to show how the agreement to partition would not be beneficial to him. The property owned by the parties consists of villages, buildings and some land in Dehra Dun which we will style as "Uddiwala" land which is in the heart of the town of Dehra Dun. Defendant 2 wished to show that this Uddiwala land had been allotted in the agreement to the share of the plaintiffs and that if its market value were taken into consideration, the division allotting this particular piece of land with an area of 136 bighas was most unfair.
19. On 4th September 1928 an application was made on behalf of the minor in which the Court was asked to appoint a commissioner for the purpose of valuing this land. It was stated in this application that as the defendants were contending that the properties had not been correctly valued at the time when the agreement to partition was made, so a commissioner should be appointed to value the property both inside the city and also outside it. To this reasonable course the plaintiffs objected in their reply which is dated 17th September 1928. In this they stated that there was no need to appoint a commissioner. It was stated that the property had been partitioned on 3rd February 1928 with reference to its income at the time and the application praying for a valuation is irrelevant, and that therefore-there is no need to appoint any commissioner in this case. Then we find that on 16th October 1928 another application was made on behalf of defendant 2. This is printed at p. 22. In this it was stated as follows:
In the above case the real question is whether or not in the partition relied upon by the plaintiff two equal lots were made and the property was divided into two shares. Prom the very beginning the contesting defendant objects that the plaintiff either by deceit or fraud or by some other means has taken such a lot in his share as either with regard to the area and the value of the property is far superior to and larger than the lot received by the contesting defendant and its value is twice or thrice the value of the contesting defendants lot. The plaintiff's lot in addition to the villages of considerable value also consists of such groves as are of considerable value. Specially the grove at Karanpur known as Odewala comprising an area of 60 bighas, which adjoins the city of Dehra Dun and is on the roadside, cannot be valued in any way for a price less than Rs. 800 per bigha....
20. A prayer was made that lots should be properly prepared and then there "would be no objection to partition. There is another application by defendant 2, which is printed at pp. 23 and 24, dated 17th October 1928. We need only refer to para. 7 of this application printed at p. 24 which runs as follows:
Mauza Karanpur (Odewala) is adjacent to the city of Dehru Dun and consists of a grove, measuring 70 bighas quite on the roadside. This grove especially and the other lands of mauza Odewala Karanpur, are very valuable. The plaintiff himself has valued the land of the grove at Rs. 400 per bigha. If the land is sold properly it can fetch much more price. The present value of the said mauza is not less than Rs. 60,000 or Rs. 60,000....
21. It is thus clear that long before the evidence commenced, the contesting defendants had intimated to the plaintiffs that they would attempt to show that the Uddiwala property was of very high value and that its allotment to the plaintiffs in its entirety was unfair to the contesting defendants. The defendants produced a number of witnesses to show the value of this Uddiwala property. The first witness to whose evidence reference might be made is Gayub Khan (p. 63). According to his evidence, the Uddiwala property is about one furlong away from the Courts at Dehra Dun, the approximate area being about 136 bighas. He gives the rates at which the land according to his estimate can be sold, and from his statement it appears that the value of the Uddiwala property is about Rs. 74,400. The next witness is Ranjit Singh (p. 66). This man is in the service as Patwari of one Lachman Das who owns property in Dehra Dun. He has seen the Uddiwala property. He has deposed that six bighas land was leased to one Deputy Sahib who paid 'nazrana' at the rate of Rs. 1,800 per bigha and further agreed to pay an annual rent at the rate of Rs. 5 in 1923. 11 bighas land, according to this witness, was leased to Mr. Bhagwan Singh in 1925 who also took it on the same rent. Then he deposes that the Government have taken some land for a cemetery in 1925 at the rate of Rs. 1,000 per bigha. He says that that land is near the Uddiwala land. The next witness is Brahma Sarup (p. 67) who owns land near about the Uddiwala land. He deposes that in 1921 he sold 51 bighas and 7 biswas land at the rate of Rs. 1,000 per bigha on the other side of the road. Another piece of 11 bighas and 1 biswa was sold by him to one Joti Prasad Vakil for Rs. 13,500. His evidence is that the rate is about Rs. 1,000 per bigha. He sold other plots also at the rate of Rs. 1,000 per bigha. He deposes that he values his land at the rate of Rs. 1,200 per bigha and he further deposes that Tota Ram's land which is near his land is also quite good. After this we have the evidence of Mr. Azhar Muhammad' Khan (p. 68), Honorary and Special Magistrate of Dehra Dun. He carried on business as house agents under the name of A. M. Khan & Sons. He has seen the land of Tota Ram, that is to say, the Uddiwala land. In his estimation the value of the land on the roadside is about Rs. 1,000 per bigha approximately between Jail and some land styled as Government land.
22. The evidence of these witnesses goes to show that land in Uddiwala is of great potential value. The plaintiffs did not produce any evidence in rebuttal. It has not been shown to us that there are any reasons for not accepting the estimates given by the witnesses mentioned above in respect of the value of Uddiwala land. The position, therefore, stands thus. A large piece of land approximately about 136 bighas in area has been agreed to be allotted to the plaintiffs under the partition agreement. Defendant 2, who is a member of the joint family along with the plaintiffs and defendant 1, is entitled to say in these circumstances that the proposed partition is not fair. This valuable piece of land should have been divided between the parties so that the entire family right get the benefit of any profits that night accrue from the sale of this land. Admittedly, it is building land and the sale, we have no doubt, will bring very large profits to the persons who are in occupation of it at present. It is not easy to understand why the minor should be deprived of gaining his share in the profits which other members of the family are likely to get in the near future. When a joint family possesses a piece of land which is of a great potential value, it is only reasonable and fair that it should be equally distributed so that each member of the family gets full benefit of the income which might be derived by the sale of the same. This is not a case in which it can be said that although a valuable piece of land was allotted to the plaintiffs, yet property of equal value was allotted to the defendants. It would be seen on a perusal of the evidence produced in the case that the whole case of the defendants was centred round a valuable plot in Uddiwala which is a piece of building land in a prosperous town. As regards the other properties, the subject matter of the agreement relating to partition, there was not much dispute between the parties. The learned Judge of the Court below remarks in his judgment at p. 80 that:
...the Uddiwala Karanpur property, which is the real bone of contention between the defendants and the plaintiff, has become altered in value since the so-called partition deed was drawn up.
23. He then proceeds to consider that the partition was fair quite forgetting that as a matter of fact it was only an agreement of partition and no partition had at all taken place. At p. 79 of the judgment, the learned Judge rightly remarks that if it was established that the share allotted to Lachmi Chand was disproportionately small, then it might be a good ground for holding that the document of 3rd February 1928 was not valid and binding on the minor and that the decision of this point was to be governed by the following consideration:
At the time the deed was executed, was the distribution of the property more or less a fair one? The decision of what constitutes inequality is one obviously which the Court has to decide for itself and unless the allocation of shares is obviously a hardship on the minor, the Court would not interfere with the terms of any partition deed signed by the father of the minor.
24. Now it will appear from the evidence produced in the case that it has been the case of the minor defendants all along that the alleged partition (sic) by the memorandum was wholly (sic) for the reason that the Uddiwala Karanpur property which was most valuable and had potential value had been agreed to be allotted to the plaintiffs. At another place in his judgment, the learned Judge flays:
He (defendant) values the whole of Uddiwala at Rs. 65,000 at the very least. But before dealing with this particular point of the value of Uddiwala, the Court is forced again to make pointed reference to the deliberate vagueness of the written statements. There was nothing in the written statements to suggest that the real grounds of Onkar Prasad's objecting that the compromise was not fair, were that Uddiwala was worth so much more than the other villages. Counsel for the plaintiff rightly pointed out that this was a matter which came as a complete surprise to him and that he had no opportunity whatsoever of producing rebutting evidence about the value of this particular village. This is true. The defendants should have alleged specifically what they objected to as unfair. They contended themselves by saying that the lots received by Atma Bam were three times as valuable as those allotted to Lachmi Chand. The plaintiff could get no clue from such vague allegations and just as I have refused to allow the plaintiff to go beyond his pleadings and argue on an oral partition so I refuse to consider the evidence about the great value of Uddiwala.... This evidence really ought not to be considered by the Court as the plaintiff had no opportunity of rebutting it or of knowing that this would form the basis of the defendant's equitable objection to the alleged partition deed....
25. We emphatically disagree with the view taken by the learned Judge as mentioned above. He was utterly wrong in accepting the contention of the plaintiffs that they were completely taken by surprise as regards the position of the defendants so far as this point is concerned. If the learned Judge of the Court below had made a real attempt to go into the record, he would have never accepted such a futile contention raised before him on behalf of the plaintiffs. We may confess that we are surprised that in view of the material on record, the learned Judge should have accepted the argument of the learned Counsel for the plaintiffs on this point. We may refer to para. 7 of the written statement of the minor at p. 21 which recites as follows:
The property which the plaintiff alleges to have been allotted to him is with regard to income, locality and value twice or thrice of the property which he alleges to have been allotted to the defendant's father. Such a partition can in no way be valid and proper, nor can any Court of Justice take any action on such a partition, nor should any order be passed for enforcement of such a partition.
26. In para. 8 of the written statement, a sporting offer is made to the plaintiff and it is recited:
If in spite of the aforesaid particulars, the plaintiff urges that the lots are equal, the defendant shall have no objection if the lot which the plaintiff has mentioned for himself may be given to the contesting defendant and his father and the lot which he has mentioned for the father of the contesting defendant may be taken by him so that all this litigation which is to take place and which is going on may come to an end and the money of this joint family may not be spent on litigation and the parties be saved from the troubles of litigation.
27. We lay particular emphasis on the expression:
The property which the plaintiff alleges to have been allotted to him is with regard to income, locality and value twice or thrice of the property which he alleges to have been allotted to the defendant's father.
28. In view of this clear and specific allegation, there was no warrant for the learned Judge for saying that the case of the defendants on this point was vague. We have also referred to several applications made on behalf of the minor defendant that Udaiwala Karanpur properties were most valuable and the chief objection to the alleged proposed partition was that this land had been unfairly allotted to the plaintiffs' share. There is considerable force in this contention. As we have already pointed out, we do not agree with the view taken by the learned Judge in his judgment that even if this contention is accepted, the proposed partition was not fair. The view of the learned Judge that the defendants' evidence of experts and other witnesses as regards the valuation of Udaiwala Karanpur properties ought not to be considered as the plaintiffs bad no opportunity of rebutting it, is not correct and cannot possibly be accepted. Nor do we find ourselves able to agree with the learned Judge's view that even if the evidence produced by the defendants is accepted, it does not improve their case. One of the reasons given by the learned Judge is that from portions of the building land which are occupied by occupancy tenants, the latter cannot be ejected. This fact does not improve the case of the plaintiffs. A portion of land may be held by occupancy tenants and yet it may be very easy to induce them to surrender their rights by payment of small sums of money. The learned Judge has referred to certain statements prepared when the case was in appeal in this Court 1 but obviously they are not admissible in evidence and rightly reliance has not been seriously placed upon them before us.
29. Learned counsel for the appellants asked us that an opportunity should be given to the appellants to prove that the land which had been allotted to the defendants, was also valuable. We are not prepared to accede to this request having regard to what we have already stated. The plaintiffs had ample notice that the defendants would make an attempt to show that the proposed partition was unfair by showing the potential value of the Udaiwala property. It was open to the plaintiffs, if they wanted to, to produce evidence in order to prove that the property which had been allotted to the defendants was also of the same value as the property allotted to them (plaintiffs). But we find that no evidence was produced in the case by the plaintiffs to rebut the evidence which the defendants have produced in this case on the question of the value of Udaiwala property. Before us a reference was made to two statements prepared when the case was pending in appeal here previously, showing the value of village properties. But no reliance can be placed on that evidence for the simple reason that the learned Judge, before whom those two statements were tendered, was of opinion that they were of no value at all. The learned Judge in his judgment stated that the net profits of Sheola village were about Rs. 4,025 and odd, and its value was calculated with reference to this amount as profits. But we have a statement in the Khatauni of 1334 Fasli in which the gross profits are recorded to be Rs. 2,880. It therefore appears that the learned Judge in fixing the value of Sheola property was also quite wrong.
30. We are of opinion that the defendants have been able to establish by their evidence that the partition agreement was not fair so far as defendant 2, who was a minor at the time, is concerned. This being the case, we are of opinion that no decree for specific performance of the agreement to partition should be passed in this case. For the reasons given above the appeal fails and is dismissed with costs.