JUDGMENT Verma, J.
1. This is an appeal by the plaintiffs. The suit, as it ultimately stood after certain amendments of the plaint made at the request of the plaintiffs, asked for the following relief:
The summary order, dated 18th March 1936, passed in miscellaneous Case No. 7 of 1936, by the Court of the Sessions and Subordinate Judge of Cawnpore--Har Gobind and others versus Radha Raman and others--so far as it relates to the plaintiffs may be set aside.
2. The following pedigree will be helpful:
JAGANNATH = MT. RAM PIARI, D-3 ___________|______________________________ | | | Raja Ram=Mt. Shiam Radha Raman, D-1 Tulsi Ram=Mt. Brij Rani Dei, wife, D-2 _____________________________|____ | | Puran Chand, P-1 Kapur Chand, P-2.
3. Jagannath died in 1906, Tulsi Ram in 1916 and Raja Ram in 1933. The family was governed by the Mitakshara. According to the plaint, which was filed on 18th April 1936, plaintiff 1, Puran Chand, was "about 24 years" old and plaintiff 2, Kapur Chand was "about 21 years" old at the time of the institution of the suit. Thus Puran Chand may be taken to have been born some time in 1912 and Kapur Chand in 1915, and therefore Puran Chand attained majority in 1930 and Kapur Chand in 1933. It may be mentioned here that it was stated by the counsel appearing for the appellants in the Court below that it was admitted on their behalf j for the purposes of this suit that both the plaintiffs had attained majority more than three years before the institution of the suit (vide paper No. 207A on the record).
4. On 20th August 1928, when the appellants were minors, a deed of partition was drawn up, with the appellants, under the guardianship of their mother, Mt. Brij Rani Kunwar, as the first party, Radha Raman as the second party, and Raja Ram as the third party. The family property was divided into three lots and House No. 48/56, situated in the city of Cawnpore--the only property with which we are concerned in this appeal--was allotted to Radha Raman. This deed of partition was registered. All the three parties to the deed, namely, Mt. Brij Rani, Radha Raman and Raja Ram appeared before the Sub-Registrar and admitted its execution. The following sentences which occur in this deed are relevant :
We, the executants, therefore, of our own accord and free will, effected a private partition of our entire property in dispute, detailed below, of the value of about Rs. 27,000, by allotting the property of the value of Rs. 9000 to each party, on Asarh Sudhi 1, Sambat 1985. The firm styled as Chhanga Mal Jagannath, situate in Generalganj belongs to us the three parties and we the executants are liable for payment of sum of Rs. 3000 due by the firm aforesaid. It has, therefore, been settled among ourselves that Lala Radha Raman executant No. 2 should pay the said outstanding debt of Rs. 3000 and that Lala Radha Raman shall receive (the) sum of Rs. 3000 on account of the said debt out of a sum of Rs. 12,000 the approximate value of house No. 48/56 which has fallen to his share, while the remaining sum of Rs. 9000 shall be treated as his share in the said house according to the partition. We the first and third parties have now nothing to do with the liabilities and assets of the firm aforesaid.
5. On 11th July 1929 Radha Raman executed a deed of simple mortgage hypothecating this house No. 48/56 in favour of one Ramnath, who was the predecessor-in-title of Har Gobind and Balmakund who were the main contesting defendants to the suit in the Court below and are the principal respondents to this appeal. The mortgage was for a sum of Rs. 8000. The mortgagee Ramnath brought a suit No. 6 of 1933 on the basis of this deed of simple mortgage against Radha Raman. Ramnath died shortly after instituting that suit and his legal representatives namely his brother Sita Ram and Balmakund and his son Har Gobind were substituted for him. They obtained a preliminary decree on 20th December 1933 and a final decree on 18th August 1934. In execution of that decree the house was put to sale and was purchased by the decree-holders on 27th March 1935. When they went to take possession of the house they were resisted and obstructed by appellant 1, Puran Chand, as well as his grandmother, Mt. Ram Piari. Thereupon the decree - holders - purchasers made an application to the execution Court under Rule 97 of Order 21, Civil P.C. The matter was investigated and the Court found that Mt. Ram Piari had a just cause for resisting the purchasers but that Puran Chand had no such cause and that he could not be said to be claiming in good faith to be in possession of the house because he has no possession over it at least since the partition which took place in 1985 Sambat.
6. The application of the decree-holders-purchasers was accordingly allowed as against Puran Chand and Radha Raman and was dismissed as against Mt. Ram Piari. Thereupon a suit was instituted by Puran Chand and his brother Kapur Chand under Order 21, Rule 103 of the Code which lays down :
Any party not being a judgment-debtor against whom an order is made under Rule 98 or Rule 99 may institute a suit to establish the right which he claims to the present possession of the property.
7. There is one more litigation which must be mentioned here. Shortly after the mortgage decree mentioned above had been made final Mt. Ram Piari -- the grandmother of the appellants--instituted a suit No. 141 of 1934 in October 1934. To this suit she impleaded Radha Raman, Puran Chand, Kapur Chand, Mt. Shiam Devi, Om Prakash minor son of Puran Chand and Ram Prakash, minor son of Kapur Chand as defendants 1 to 6 and Har Gobind, Sita Ram and Balmakund as defendants 7, 9 and 10. Put briefly, her case was that her sons and grandsons had no right to ignore her at the partition which was made in 1928 (Sambat 1985) and that she was entitled to a one-fourth share in the family property. She prayed for the following reliefs:
(a) The plaintiff's 1/4th share may be partitioned and she may be put in separate possession thereof and it may be declared that the sale of house No. 48/56, situate in Generalganj, Cawnpore, is null and void and ineffectual as against the plaintiff;
(b) It may be declared that the plaintiff's share to the extent of 1/3rd in house No. 48/56 in Generalganj, Cawnpore, was not fit to be attached and sold by auction in execution of decree No. 6 of 1933--Har Gobind versus Radha Raman--of the Court of the Sessions and Subordinate Judge of Cawnpore. . .
8. It was pleaded in that suit by the present appellants and their sons that Mt. Brij Rani had signed the deed of partition without understanding its contents and without independent advice, that house No. 48/81 which had been allotted to them at the partition had been the self-acquired property of their father Tulsi Ram, that the partition had been unfair to them on that account as well as for certain other reasons which they stated and that they were not bound by that partition. Mt. Shiam Devi, among other pleas, contended that the plaintiff Mt. Ram Piari had given her consent to the partition in question and had agreed to accept a sum of Rs. 7 per month from each of the three parties to the partition that is Rs. 21 per month and that Mt. Ram Piari was therefore estopped from questioning the partition. Har Gobind, Sita Ram and Balmukund also contested the suit and pleaded that the partition was binding on the plaintiff, Mt. Ram Piari, inasmuch as she had consented to the partition and had agreed to accept the sum of Rs. 21 per month for her maintenance. They also pleaded that their mortgagor, Radha Raman, had undertaken to pay off the debts which were due from the entire family, that house No. 48/56 had thereupon been allotted to him, that Radha Raman had therefore validly acquired exclusive title to that house and had validly mortgaged it to their predecessor-in-title, Ramnath. The Court found that the allegation of the plaintiff, Mt. Ram Piari, that the partition had been effected without her knowledge and consent, was untrue, that she had not been ignored, that on the contrary she had given her consent to the partition and that she had agreed to accept a sum of Rs. 21 per month in lieu of such rights as she had in the family property upon a partition taking place. It was accordingly held that she was bound by the partition and was not entitled to challenge it and to have it re-opened. The suit failed upon this finding and it was not necessary for the Court to go into any other question. The Court went on, however, to hold that the partition was not binding on Puran Chand and Kapur Chand and their sons as it was prejudicial to them inasmuch as the property allotted to Raja Ram and Radha Raman was of greater value than that allotted to Puran Chand and Kapur Chand. This finding could not, of course, be incorporated in the decree which simply was to the effect that the suit of Mt. Ram Piari be dismissed with costs.
9. The allegations made by the appellants in the present suit, so far as they are material for the purposes of this appeal, are these. They contend that they were justified in resisting and obstructing Sita Ram, Balmakund and Har Gobind and that they have a right to the present possession of the house in question. This contention is based on the allegation that the partition of 1928 was unfair to them, that they are, therefore, not bound by it, that Radha Raman did not under that partition acquire an exclusive title to the house in question and that the mortgage in favour of Ramnath was there, fore not valid and that they are entitled to their share in the house in question. It was also pleaded by them that the finding in Mt. Ram Piari's suit that the partition was not binding upon them was res judicata and was binding on all the defendants to the present suit. Sita Ram having died shortly before the institution of the suit, Har Gobind and Balmakund were impleaded as defendants 7 and 8. They contested the suit and pleaded that the partition had not been prejudicial or unfair to the plaintiffs and that, in any event, if the plaintiffs had any objection to the validity of the partition and wanted to have it set aside, they ought to have brought a suit for that purpose and for the cancellation of the deed, dated 20th August 1928, within three years of their attaining majority. They further pleaded that the plaintiffs were not entitled to rely as against them on the finding recorded by the Court in Mt. Ram Piari's suit that the partition had been unfair to the present plaintiffs and Contended that the doctrine of res judicata was not applicable to the facts of the present case. It was also pleaded by them that they were protected by Section 41, T.P. Act.
10. We are constrained to observe that the judgment of the learned Judge of the Court below is not a satisfactory document. The learned Judge's conclusions are not intelligibly expressed and it is not always easy to understand what his decisions and the grounds for those decisions are. We must also point out that the learned Judge's habit of stating at the end of his judgment under each issue that "the issue is disposed of accordingly," is much to be deprecated. As far as we have been able to understand the judgment, the grounds upon which the learned Judge has dismissed the suit are that the defendants Har Gobind and Balmakund were entitled to the benefit of Section 41, T.P. Act, that the plaintiffs were bound to bring a suit to have the partition set aside and to have the deed of 20th August 1928 cancelled within three years of their attaining majority and that they having admittedly not done so, the present suit was not maintainable. The learned Judge has also held against the plaintiffs on the question of res judicata. In our opinion the decision that Section 41, T.P. Act, applied to the facts of the present case is not correct. The plaintiffs-appellants were admittedly minors, not only at the time of the partition in 1928 but also on 11th July 1929, when Radha Raman transferred the house in question by executing the deed of simple mortgage in favour of Ramnath which is the transaction on which the defendants Har Gobind and Balmakund rely. They were therefore incapable of giving express consent, or of doing any. thing from which consent could be implied, to Radha Raman being the ostensible owner of the house. The decision of this Court in. Dambar Singh v. Jawitri Kunwar ('07) 29 All. 292 is a clear authority in support of this view. Reference may also be made to the decision of their Lordships of the Privy Council in Shankar v. Daooji Misir ('31) 18 A.I.R. 1931 P.C. 118 If this had been the only ground on which the decree of the Court below had been founded, it would not have been possible for us to uphold that decree. We consider, however, that the decisions at which the Court below has arrived on the other points mentioned above are correct.
11. It must be borne in mind that the argument against the appellants is not that the present suit is barred by limitation. The suit, as already stated, is one brought in accordance with the provisions of Order 21, Rule 103, Civil P.C., and was therefore when brought, within time under Article 11 (A) of Schedule 1, Limitation Act. The point raised against the maintainability of the suit is this. The whole basis of the claim is that the partition of 1928 was not a good partition which could bind the plaintiffs and that, therefore, the plaintiffs were entitled to remain in possession of what they allege to be their share in the house in dispute. If, therefore, the plain, tiffs are found to have lost their right of challenging the partition, the entire foundation of the claim disappears. It is not denied by learned Counsel for the appellants that a ' suit by these plaintiffs for setting aside the partition of 1928, so far as it affected them, would be governed by Article 91 of Schedule 1, Limitation Act. Nothing is more clearly settled than that a valid partition may be made during the minority of one or more coparceners and that if the partition were unfair or prejudicial to the minor's interest, he will be entitled on his attaining majority, by proper proceedings, to set it aside so far as regards himself: Mayne's Hindu Law, Edn. 10, para. 426; Mulla's Hindu Law, Edn. 9, paragraph Chanvirapa v. Danava ('95) 19 Bom. 593 at pp. 598 and Balkishen Das v. Ram Narain Sahu ('03) 30 Cal. 738 at p. 752 ; Sarabjit Partap v. Indarjit Partap ('04) 27 All. 203 at pp. 249 to 250 and Awadh Sarju Prasad Singh v. Sita Ram Singh ('06) 29 All. 37 at p. 40. It was thus necessary for the present appellants, if they considered that the partition of 1928 was not a fair partition, to sue for a decree setting it aside so far as it affected them. Such a suit had to be brought within three years of their attaining majority. No such suit having admittedly been brought, the right which these plaintiffs might have had to question the validity of the partition was extinguished before the institution of the present suit. The necessary result of this is that the appellants are no longer entitled to contend that the partition of 1928 is not binding on them and they are consequently not entitled to allege that Radha Raman was not the exclusive owner of the house in question and was not entitled to mortgage it to Ramnath. That being so, the claim put forward by the appellants must be held to be without foundation.
12. Learned Counsel for the appellants has contended that as the Court which decided the suit of Mt. Ram Piari had held in favour of the appellants that the partition was not binding on them, it was not necessary for the appellants to institute a suit to have the partition set aside. This contention ignores the fact that it is necessary for a person who alleges that a partition is not binding on him to have that partition set aside. That can be done by a decree, but a mere finding in the course of a judgment which has no effect on the ultimate decree passed by the Court cannot have the effect of setting aside the partition. It must also be noted that Har Gobind, Sita Ram and Balmukund could not have appealed against the finding in question as the decree -- dismissing Mt. Ram Piari's suit -- was in their favour.
13. The finding of the Court below on the question of res judicata is also in our opinion correct. It will be remembered that the appellants and the respondents were arrayed on the same side as co-defendants in the suit of Mt. Ram Piari. In order that a finding may operate as res judicata as between co-defendants three conditions are requisite: (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided, Munni Bibi v. Tirloki Nath ('31) 18 A.I.R. 1931 P.C. 114 at p. 111. Even if it be conceded that condition No. 1 is satisfied in the case before us, it is clear in our opinion that the remaining two conditions are not fulfilled. From what we have said above, it is apparent, in our judgment, that it was wholly unnecessary for the Court in Mt. Ram Piari's suit to decide the question whether the partition was binding on Puran Chand and Kapur Chand or not. It also appears to us that it cannot be said that the question was finally decided as it was not possible for the parties whose case it was that the partition was binding on Puran Chand and Kapur Chand to appeal against that finding as the decree was in their favour. The Court below is, therefore, right in holding that Har Gobind and Balmakund were not affected by the rule, of res judicata. The result is that the decree passed by the Court below dismissing the suit is correct. The appeal is accordingly dismissed with costs.