JUDGMENT Waliullah, J.
1. This is a defendants' appeal arising out of a suit for cancellation of a deed of gift dated 2nd October 1935 executed by one Ranjit Singh in favour of defendants 1 to 6. The plots in suit were Nos. 575 and 576 (area 3 nalis). The plaintiffs' case was that the plots in question were situate in a joint khata owned by Ranjit Singh and other cosharers and that Ranjit Singh alone was not competent to transfer them by way of gift to defendants l to 6. The defence to the suit was that even prior to the Pauw's settlement of 1892 A. D. there had been a private partition among the cosharers and the plots in suit had come into the exclusive possession of Ranjit Singh's father, and after his death Ranjit Singh had been in exclusive possession of the same and that the plots in suit had been recorded separately in the name of Ranjit Singh's father and after his death in the name of Ranjit Singh and the revenue in respect of the same had been paid separately by them. There was a further plea that the plaintiffs had acquiesced in the transaction and therefore the suit was barred by estoppel by acquiescence. The learned Assistant Collector (civil Judge) came to these findings : (i) That by private partition the plots in suit had come into the exclusive possession of Ranjit Singh's father and after his death into Ranjit Singh's possession as alleged by the defendants; (ii) That the plaintiffs had acquiesced in this transaction and therefore it was not open to them to challenge the transfer.
2. In view of these findings the suit was dismissed with costs by the Court of first instance. On appeal the learned District Judge came to the finding that there had been a private partition and it was on account of private partition that the plots in suit had come into the exclusive possession of Ranjit Singh's father and after him into the possession of Ranjit Singh himself, but according to the learned Judge the plots in suit had not lost their joint character, that is, the character of being the joint property of the parties and therefore the deed of gift in question by Ranjit Singh was invalid. In view of these findings, the learned Judge held that the plaintiffs were entitled to a declaration of their rights as co-owners and they were further entitled to seek their remedy by way of cancellation of the deed of gift. He accordingly allowed the appeal and decreed the plaintiffs' suit with costs in both Courts. Against the decree of the lower appellate Court the defendants have come up in second appeal to this Court. In the first instance this appeal came up before a learned single Judge of this Court who on account of divergence of judicial opinion on the principal question involved has referred it to a Bench of two Judges for decision. It has been strenuously contended before us by the learned Counsel for the appellants that the view of law taken by the lower appellate Court is incorrect. It was held so far back as the year 1923 in Hawal Rai v. Har Prasad ('24) 11 A.I.R. 1924 All. 57 that a private partition is not unknown to the law. The only difference between a private partition and a partition by Court is that whereas the incidents of one are preserved in the records of the Court the incidents of the other are not. But so far as the legal effect is concerned, there is in principle no difference. In the case mentioned above their Lordships have made the following observation:
It will hardly be contested that the cosharers in a mahal have a right to effect a partition by private arrangement amongst themselves, and that it may be the most convenient method of effecting such a partition to assign the entire holding of a particular tenant to a particular group of cosharers. The only difference between a partition effected by private arrangement and one properly carried out under the orders of the Court is that the incidents of the private partition are difficult to prove and that confusion and litigation may arise afterwards owing to the preparation of village records which are at variance with the actual facts.
3. The appellants are, therefore, right when they contend that Ranjit Singh and his father having been in exclusive possession of these two plots for such a length of time it was open to Ranjit Singh to make the gift in question. The principle of this case has been in effect affirmed by the Full Bench in Ram Raj Singh v. Rajendra Singh ('43) 30 A.I.R. 1943 All. 247. That no doubt was a case of a mortgage but their Lordships have in the course of their judgment practically wiped out all distinction between a transfer with possession and a transfer without possession. The gift in favour of the appellants must, therefore, stand. The plaintiffs are, while they may not be entitled to succeed in their attempt to get the deed of gift cancelled, certainly entitled to a modified declaration with regard to their title. In the Full Bench case referred to above, Dar J. at page 231, following Sukhdeva v. Parsi ('40) 27 A.I.R. 1940 Lah. 473, has held that in a case of this description the other cosharers' rights will be sufficiently safeguarded if he is granted a declaration with regard to his title. Exclusive possession no doubt armed Ranjit Singh with the right to make the gift but it did not deprive the other cosharers of their title to the plots in dispute. We, therefore, allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with this modification that while refusing the plaintiffs' prayer for cancellation of the deed of gift we grant them a declaration that their title to the plots will remain unaffected. Costs throughout on parties.