John Stanley, C J and William Burkitt, J - (1.) This appeal arises out of a suit for partition of family property brought by one Ram Chandar Rao, who died during its pendency, and is now represented on the record by his widow Musammat Janki Bai. The Court below granted decree in favour of the plaintiff, and against this decree this appeal has been preferred. Ram Chandar Rao was one of the three sons of Nana Narain Rao, deceased, the other sons being Vasudeo Rao and Parsotam Rao. Nana Narain Rao had also two daughters, namely, Sarda Bai, and Rohni Bai. The defendants to the suit are Parsotam Rao, Madho Rao (son of Vasudeo Rao), and Waman Rao, son of Parsotam Rao. Madho Rao has since died. Nana Narain Rao acquired the estate of his father, Ram Chandra Panth, under the will of the latter, dated the 24 of January 1852. This will was disputed by his younger brothers on the ground that a Hindu had no power to make a disposition in the nature of a will of his self- acquired property, and on the further ground that, assuming the existence of such a power, the alleged will was not the will of Ram Chandra Panth. The zillah Court of Cawnpore decided in favour of the will. Upon appeal the Sadr Adalat of the North-Western Provinces reversed that decision, but on appeal to their Lordships of the Privy Council the will was upheld and the decree of the zillah Court restored. (The case is reported in 9 Moore's Indian Appeals, 96.) Nana Narain Rao having thus become owner of the property of his father executed an instrument in the nature of a will on the 22 December, 1864. This document is described in the instrument itself as "an instrument relating to the partition of his estate (matruka khas) among the heirs of Nana Narain Rao, the eldest son and executor of Ram Chandra Panth, as drawn up by him, dated 22 December, 1864." It recites three deeds of gift, in favour of his wife, and sons Vasudeo and Parsotam Rao, respectively, and that a third son Ram Chandar had been born and that consequently the deeds of gift should not be acted on. It then recites that three fresh detailed lists, giving the name of each heir, had been prepared, and that one of these lists was given to each heir, and one general list was sent to the Court to remove future disputes, so that each heir should act "according thereto, and not in contravention thereof." The document then provided that the heirs should all, according to their family custom, "live together with clean breast and maintain the good name of their ancestors and contains this important provision that although the property had, with a view to mutual disagreement, been partitioned, still the partition was not to be a bar to the members of the family living together. It then provides for the custody of jewelry, gold and silver ornaments set apart for the worship of Thakurji, and also for the expenses of the testator's obsequies and the investiture and marriage ceremonies of his son. Ram Chandar Rao, and his daughter Rohni Bai, in case these ceremonies should not be celebrated during his lifetime. In the seventh paragraph it is recited that mauza Lalpur, in the district of Cawnpore, stands in the name of Vasudeo Rao, and mauza Balwapur, in the same district, in that of Parsotam Rao; and that there is no village standing in the name of Ram Chandar Rao, and accordingly a provision is made that mauza Binaur should be given to Ram Chandar Rao., In paragraph 8 is a direction that "his three sons should divide and take in equal shares the zamindari shares" in the following villages, namely, a 2 anna share in mauza Baroha, a 2 1/2 anna share in mauza Shahpur and a 2 1/2 anna share in mauza Bhikhar. In paragraph 9 it is provided that his three sons should occupy the houses and shops, etc, in Lashkar and the kothi at Cawnpore, under the control of their mother, and should not partition them. Further directions are given, which it is unnecessary here particularly to refer to. Schedules appended to the instrument give the specification of the property and shares of property allotted to each son. A copy of the instrument enclosed in a. sealed cover was handed to the Collector and by him directed to be kept in the office with due care until registration and was deposited in the record- room, This instrument forms the basis of the plaintiff's claim. To uphold the dignity of the family the members of it continued to live after the manner of a joint family, in fact they adopted the suggestion in the instrument executed by their father that the separation in interest effected by it should not be "a bar to their; living together." When the plaintiff Ram Chandar Rao instituted the suit for partition, out of which this appeal has arisen, he was evidently at a loss to determine what the legal effect of the instrument of 1864, taken in conjunction with the mode of living of the family since the death of his father had upon the status of the family. It was not of much moment to him whether or not that document worked a separation in interest of the family property. If it did so, he would be entitled to his share under it. If, on the other hand, it had not that effect, he would be entitled to a one-third share of the estate. Accordingly we find in the plaint an alternative claim put forward. In it the document of the 22nd of December 1864 is set forth in considerable detail, and in paragraph 10 it is stated that although the shares of all the three sons had been fixed by it and they considered themselves to be owners of a one-third share each, yet in compliance with the instructions of their father they all with their children lived together and the income from the whole property, irrespective of the fact that the properties were recorded in the names of individual members, was disbursed for the purposes of the family generally. Then follow these words: "They (that is the members of the family) were not joint in residence and expenditure in the same way as members of a joint Hindu family are, but in order to maintain mutual good- will and union, each brother had a fixed share in the property and considered himself owner of a specified share therein." The allegations contained in paragraph 12 of the claim are in conflict with those in paragraph 10, for in the former of these paragraphs it is alleged that although the name of Vasudeo Rao was recorded in respect of mauza Lalpur, and after his death the name of his son, Madho Rao; was entered and the name of the defendant, Parsotam Rao, was entered in respect of mauza Balwapur, and some property had been purchased at auction solely in the name of the plaintiff, yet just as the names of all the three brothers were entered in mauza Binaur, though it had been allotted to the plaintiff alone, it was understood in respect of the whole property that when the actual division took place each brother would have a third share in each property. This is inconsistent with the earlier passage in the plaint to which we have referred. The plaintiff in his prayer to the plaint claimed partition of all the property, movable and immovable, on the basis of the family being joint, and also in the alternative he claimed to be entitled to his share as specified in the document of the 22nd of December 1864.
(2.) We now turn to the defence. In the first paragraph of the written statement under the heading "further pleas of the defendants" they set out the will of Ram Chandra Rao Pant in favour of Nana Narain Rao and say that Nana Narain Rao had fall power to devise the portion of the estate of Ram Chandar Rao which devolved upon him under the will, and that he exercised this power in the instrument of the 22 December, 1864. The paragraph ends as follows: "He (i.e., Nana Narain Rao) had therefore full power to devise it and he exercised this power in this way that he executed a will, dated the 22 December, 1864, and kept it in deposit as an instrument in the Collectorate and the Civil Court at Cawnpore, and under it, after the death of Nana Narain Rao Sahib, his three sons took possession, as specified below, of the property and interests bequeathed to them as executors, and not as heirs." The word "executors," we presume, is intended for "devisees" in contradistinction to heirs. Then in the next paragraph the provisions of the will are stated whereby his wife Saubhagwati Lachhmi Bai Sahiba was appointed executrix and provision was made for her during her life and after her death for the division amongst the three sons and two daughters of Nana Narain Rao of what should be left. Reference is then made to purchases made by Nana Narain Rao after the execution of the will and to gifts of ornaments made by him on the occasion of marriages in the family or amongst the dependents. In the fourth paragraph is a statement that after the death of Nana Narain Rao the property undisposed of devolved on his three sons and two daughters in accordance with the terms of the will. In the sixth paragraph the defendants say that the will was acted on and in the earlier portion is the following passage: "After the death of the said Nana Narain Rao Sahib all the three of his sons took proprietary possession of the property as mentioned in the lists entered in the will and which remained after the additions and alterations and transfers and appropriations made by him. But according to the instructions of the said testator which were binding on them, and in order to maintain the dignity of the family, all the three brothers, like members of a joint family, remained joint in residence, food and expense But the management of their respective properties continued to be in the hand of Vasudeo Rao Anna Sahib, who was the senior member of the family, and during his lifetime he acted in Consultation with all the members." In the seventh paragraph reference is made to differences amongst the members of the family and to the division of jewelry and ornaments made in consequence of these differences. This paragraph contains a statement that Vasudeo Rao, Parsotam Rao, and the plaintiff filed a suit in respect of a promissory note for Rs. 20,000 to which Musammat Sarda Bai had made claim, and that in consequence of this the parties determined to divide all the ornaments and jewelry, but that during the pendency of the suit Vasudeo Rao died. It then recites a settlement, dated the 7 of June 1887, whereby Musammat Sarda Bai received a note for Rs. 20,000 and relinquished her rights under the will, and also a settlement with Musammat Rohni Bai, dated the 6 of February 1887 whereby in consideration of a sum of Rs. 6,000 she also relinquished her rights under the will. Then follows this passage: "In order to avoid the disturbance of the mutual union which existed on a firm footing in consequence of natural love and the directions of their father, they with mutual pleasure and in confidence held a meeting at their own dwelling house and the plaintiffs and the defendants Nos. 1 and 2 sitting together, and having regard to the dignity of the family and to the fact that there was no equal to them in respect at Bithur, and that the circumstances of the family should not be disclosed to anyone, fully considered over the matter, and, with a view to avoid dispute in future, divided among themselves all the gold and silver ornaments and jewels intended for males and females which were left by the said testator (that is Nana Narain Rao) at the time of his death, and thus enforced the aforesaid will without reducing anything to writing and took those things into their actual possession and retained the same." Later on, in paragraph 14, the defendants say that the plaintiff is merely entitled to a declaratory decree in respect of the property mentioned in his in list No. 1 annexed to the written statement and to a decree for delivery of possession after partition-to the extent of one-third of the property in dispute, as mentioned in lists Nos. 2 and 3, and to a declaratory decree in respect of his right of residence in the dwelling houses, etc.
(3.) Now nothing can be clearer than this that in their defence the defendants set up and relied upon the instrument of the 22 December, 1864 as a binding document. It is to be noticed that the family jewelry and ornaments were divided in accordance with it and that to this extent at least the terms of it were enforced. It is also manifest that the defendants did not regard the conduct of the members of the family in regard to the family property after the death of Nana Narain Rao as being inconsistent with the provisions of that instrument or as in any way affecting its full operation. The allegations of the plaintiff and of the defendants as to the status of the family are as nearly as may be identical.;