Judgement Consolidated Appeals from two decrees and judgments of the High Court (May 17, 1910) partly affirming and partly reversing a decree and judgment of the Court of the Additional Subordinate Judge at Aligarh (September 30, 1907). The plaintiffs in the suit were the second and third sons, and their respective only sons, of one Rao Balwant Singh; the defendants were the only son of Rao Balwant Singhs eldest son and Rao Balwant Singhs widow. In the first appeal the appellants were the defendants in the suit, and the respondents were the plaintiffs, excepting the second son, who died after the hearing before the Subordinate Judge. By their plaint dated September 13, 1905, the plaintiffs claimed a declaration that certain villages, houses, and movable property were joint family property, and prayed for partition. The defendants by their written statement pleaded (inter alia) that the family property had been partitioned in 1895, as was evidenced by a document dated November 26, 1895, and that this partition had been agreed to by all parties at the time and since had been continuously acted on by them. The facts were shortly as follows. In 1895 Rao Balwant Singh, the head of a joint Hindu family, made a division of the ancestral family property, excepting, however (as their Lordships found), two houses and certain movable property, between his three sons and his eldest sons wife. He installed his eldest son on the gaddi in his place, and by September, 1895, he divided the whole joint property, with the above exception, in the manner set out in the document presently referred to, and put his sons into possession. The property allotted to the eldest son was considerably greater than that allotted to the younger sons, this being alleged to be in accordance with the custom of the family and so found by the Subordinate Judge. On November 26, 1895, Rao Balwant Singh executed a document, described therein as a will, in which he said "I have been ill for the last three or four years and am unable to move about. The work in connection with my estate is conducted through Chiranji Lal, general attorney, and Rao Sultan Singh, my eldest son. Now I intend to sever my connection from the world, go on pilgrimages, and visit other countries. Life is transient and uncertain. The work in connection with my estate is conducted through Chiranji Lal, general attorney, and Rao Sultan Singh, my eldest son. Now I intend to sever my connection from the world, go on pilgrimages, and visit other countries. Life is transient and uncertain. My three sons are at present fully qualified to conduct the business. Therefore to avoid a dispute after my death I have at present, while in a sound state of body and mind and of my own free will and accord, divided the property among my sons, heirs, as follows." There followed a specific division of the villages by name among the three sons. The document then gave certain sir lands and other property to his wife for her life, and provided that upon her death it should descend to the wife of one of the plaintiffs and to the sons of the executants three sons. The document concluded in the following terms "If I at any time 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. All three sons were put into separate possession of the estate in the beginning of the year 1303 Fasli (September, 1895). I have no other heir having a right besides those mentioned in this will. I have therefore executed this will in order that it may serve as evidence." On February 25, 189G, the plaintiffs, the second and third sons of Rao Balwant Singh, filed applications for mutation of their names in the revenue papers, and stated therein that their father " had partitioned the whole of his property among his heirs under a registered will dated November 20, 1895." The Tahsildar heard the application on March 19, 1896, and his record stated that the application was verified by Rao Balwant Singh, that a transfer of possession had taken place, and that no objection was raised. He accordingly made an order for mutation of names. Rao Balwant Singh died on April 7, 1901, his eldest son, the father of the first defen dant, having died a few days earlier. In July, 1901, the defendant, the widow of Rao Balwant Singh, applied on behalf of the defendant their eldest son for mutation of names with regard to the property held by her late husband. Rao Balwant Singh died on April 7, 1901, his eldest son, the father of the first defen dant, having died a few days earlier. In July, 1901, the defendant, the widow of Rao Balwant Singh, applied on behalf of the defendant their eldest son for mutation of names with regard to the property held by her late husband. From the record of this application, which was granted, it appeared that the plaintiffs, the younger brothers, were present, and made written statements in support of the mutation referring to the will. There also took place a mutation of names in respect of the sir lands. During the ten years which elapsed between the division of the property and the commencement of the suit the parties each remained in possession of their respective allotted shares of the estate. During this period suits were instituted by the sons, each in his own name, against tenants of their respective recorded shares. At the trial the plaintiff the second son did not give evidence; the plaintiff the third son gave evidence, but he did not deny the above facts or offer any explanation of why proceedings were not taken sooner. The plaintiffs relied on the evidence of Chiranji Lal, the general agent and attorney of Rao Balwant Singh. He produced account books purporting to shew that, both daring the life of Rao Balwant Singh and since his death, the entire property was jointly enjoyed. Their Lordships agreed with the finding of the Subordinate Judge that these books contained discrepancies and were fabricated by Chiranji Lal. This witness admitted that he had kept a separate book of account in which were recorded the receipts from the particular villages allotted to the plaintiff the third son, and his separate expenditure, and that this book contained a statement in the witnesss writing that these villages belonged to that plaintiff. There was a conflict of evidence as to how far Rao Balwant Singh, after the execution of the document of November 26; 1895, retired from the world and ceased to participate in the management of the family property. There was a conflict of evidence as to how far Rao Balwant Singh, after the execution of the document of November 26; 1895, retired from the world and ceased to participate in the management of the family property. The Subordinate Judge by his judgment delivered on September BO, 1907, held that Rao Balwant Singh by the document of November 26, 1895, made a final disposition of the villages in suit, and that the sons having consented to the distribution when it was made, and having afterwards acted in conformity with it for many years, were bound by it as a partition. He found that the family custom under which the eldest son took a larger share was proved and that the account books relied on by the plaintiffs were fabricated. He, however, held that two houses and the movable property were not included in the partition. He accordingly dismissed the claim as to the zamindari villages and sir lands and allowed it as to the two houses and movable property. Both parties appealed to the High Court. That Court by its judgment (Sir J. Stanley C.J. and Griffen J.), delivered on May 17, 1910, allowed the plaintiffs appeal and dismissed that of the defendants. They held that the document of November 26, 1895, was an ordinary will operative only from death and was not a family arrangement. Both parties appealed. De Gruyther, K.C., and Dube, for the appellants (defendants). The evidence shews conclusively that there was in 1895 a family arrangement under which the family property was partitioned. The plaintiffs consented to the partition then made and have continuously acte on it since. They cannot now be heard to say that it was unequal or invalid according to Hindu law Balkishen Das v. Ram Narain Sahu (( 1903) L. R. 30 Ind. Ap. 139.); Musammat Parbati v. Chaudhri Naunihal Singh (( 1909) L. R. 36 Ind. Ap. 71.); Raghubir Singh v. Moti Kunwar. (( 1912) I. L. R. 35 Allah. 41.) The custom of the family under which the eldest son took a larger share was proved; in any case it was part of the family arrangement and assented to as part of the agreed partition. The High Court took a wrong view of the object and intention of the document of November, 1895. 41.) The custom of the family under which the eldest son took a larger share was proved; in any case it was part of the family arrangement and assented to as part of the agreed partition. The High Court took a wrong view of the object and intention of the document of November, 1895. Although it is called a "will," it was intended to be a record of a partition actually made, as appears from its terms. A. Grey and Lowndes, for the respondents (plaintiffs). There was no valid partition in- 1895. What then took place was not intended as a final and complete partition. In any partition of the ancestral family property the respondents were entitled to claim an equal share Maynes Hindu Law, 7th ed., p. 659. The mutation proceedings did not amount to a transfer nor to an estoppel Muhammad Imam Ali Khan v. Sardar Husain Khan. (( 1898) L. R. 25 Ind. Ap. 131.) Before a man can be held to have given by his conduct an implied consent to a transaction which amounts to a conveyance it must be shewn that he was fully aware of what the transaction was and what effect it would have on his interests Jugo Bundhoo Tewaree v. Kurum Singh. (( 1874) 22 Suth. W. R. 341.) Conduct which might amount to an admission as to the legal effect of a transaction is not an admission of "a thing" within the meaning of the Evidence Act (L of 1872), s. 115 Jagwant Singh v. Silan Singh. (( 1899) I. L. R. 21 Allah. 285.) The document of November, 1895, was intended to be what it is described as, namely, a will. It was not intended to have effect as a partition in praesenti, as appears from the clause by which a right to cancel the arrangement reserved. De Gruyther, K.C., in reply. The decision in Muhammad Imam Ali Khan v. Sardar Husain Khan (( 1898) L. R. 25 Ind. Ap. 131.) as to the effect of a mutation of names is distinguishable. The estate in that case was not an ordinary estate under the Hindu law, but was governed by the Oudh Estates Act, 1869. The mutation proceedings are relied on here as strong evidence that the division in 1895 was intended by all parties to be final. The judgment of their Lordships was delivered by LORD MOULTON. The estate in that case was not an ordinary estate under the Hindu law, but was governed by the Oudh Estates Act, 1869. The mutation proceedings are relied on here as strong evidence that the division in 1895 was intended by all parties to be final. The judgment of their Lordships was delivered by LORD MOULTON. This is a suit brought by two brothers, Rao Karan Singh and Kunwar Sheodan Singh (with whom are joined as plaintiffs their respective sons Kunwar Shibraj Singh and Kunwar Ranbir Singh), against the widow and son of their eldest brother Rao Sultan Singh, claiming a partition of certain properties which they allege to be the joint and undivided property of the family to which they belong, in which they are entitled to a two-thirds share. The defence is that the properties originally belonging to the family were the subject of a division by a family arrangement made and acted upon in 1895 during the lifetime of the father of the plaintiffs, and that thenceforward the properties ceased to be held jointly, and that those properties of which the defendants are in possession came to them under that family arrangement and became and still remain their separate property. The principal subject of dispute is village property. But the suit relates also to certain other property, as to which different considerations arise. It will be convenient in the first instance to determine the questions in issue so far as they relate to the Village property only -and to consider subsequently the effect of the facts thus found on the rights of the parties in respect to the other property. It will be seen from the foregoing that the real issue in the case is whether or not the alleged family arrangement was in fact made and assented to by the parties interested. The defen dants contention in this respect is exceptionally clear and precise. It leaves no doubt as to the terms of the arrangement even in the minutest details, and is equally definite as to the date when and the circumstances under which it was made. The father of the three brothers was Kao Balwant Singh. In 1895 he was the head of the family which was then joint and undivided. It leaves no doubt as to the terms of the arrangement even in the minutest details, and is equally definite as to the date when and the circumstances under which it was made. The father of the three brothers was Kao Balwant Singh. In 1895 he was the head of the family which was then joint and undivided. The village property under his management, and to which this case relates, has been held by the Court of first instance to have been ancestral property, and that finding is acquiesced in by the parties. He was at that date in advanced years and indifferent health, and determined to free himself from the labours of business and devote the remainder of his life to pilgrimages and travel in other countries. Accordingly, on November 26, 1895, he drew up and executed a document (which he calls a will) setting out a division of the family property among the members of the family, reserving nothing for himself. This is the family arrangement set up by the defendants. Their Lordships incline to the view that the term " will, as applied to this document, was a complete misnomer. It is manifest that it differed from a will in the crucial characteristic that it was intended to speak from the date at which it was written, and not from a future date, namely, the death of the writer. It was, in fact, and was intended to be viewed as, a record of a family arrangement then and there made and carried into effect partitioning the family estate among those interested. Indeed, in anticipation of this formal partitioning, the sons had been put into possession of their shares some two months previously. All this appears from the concluding passage of the document, which reads as follows " All the three sons were put in separate possession of the estate in the beginning of the year 1303 Fasli" (September, 1895). "I have no other heir having a right besides those mentioned in this will. I have therefore executed this will in order that it may serve as evidence." There is no doubt whatever as to the authenticity or date of this document. "I have no other heir having a right besides those mentioned in this will. I have therefore executed this will in order that it may serve as evidence." There is no doubt whatever as to the authenticity or date of this document. But the property was ancestral, and therefore Rao Balwant Singh, although head of the family, had no right to make a partition by will of that property among "the various members of the family except with their consent. They had independent rights in it with which he could not interfere. The main question, therefore, is whether there is evidence sufficient to establish the consent of the plaintiffs Rao Karan Singh and Sheodan Singh to this family arrangement. If they accepted it, their acceptance would bind not only them but also their sons, who are the remaining plaintiffs, as they would be representing in the transaction their respective branches of the family. Their Lordships are of opinion that the evidence of their acceptance of the partition is overwhelming. To appreciate it fully it will be necessary to examine in some detail the contents of the document itself and the acts of the parties consequent thereon. [Their Lordships judgment, after dealing at length with the terms of the document and the evidence above stated, continued] The claim of the plaintiffs in this action evidently arose from the suggestion of the pleaders whom they consulted after quarrels arose in the family, and was based on the fact that the document which evidences the partition is termed a will. It is obvious that such a partition could not have been made by Balwant Singh by will strictly so called. But, as has been already pointed out, the document is much more than a will (if indeed it is in any sense a will at all), for it describes and witnesses to a family arrangement contemporaneously made and acted on by all parties. Every one treated it as such at the time. The mutations of names shew this beyond controversy. There is nothing, therefore, in the fact that the document is called a will which invalidates the partition, which was undoubtedly made in fact, and which was acted on by all parties for ten years without any dispute or misunderstanding as to their respective rights under it. The mutations of names shew this beyond controversy. There is nothing, therefore, in the fact that the document is called a will which invalidates the partition, which was undoubtedly made in fact, and which was acted on by all parties for ten years without any dispute or misunderstanding as to their respective rights under it. Counsel for the plaintiffs have endeavoured to support the contention that the partition was not intended to take effect in praesenti by reference to a provision to be found in this document. It reads as follows " If I at any time 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.". Their Lordships are of opinion that the highest effect that can be given to such words is that this evidences a contractual condition which the sons accepted in order to obtain the partition which gave them immediate possession of the property, and viewed thus, the contractual acceptance of a power of forfeiture in case of bad behaviour would not, in their Lordships opinion, be sufficient to prevent the partition operating in praesenti. But 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. The above considerations relate only to the village property. In addition to this there were two buildings, one in Aligarh and the other at Sahaoli. The disposition in the document relating to these buildings is peculiar and did not in the opinion of the learned judge of first instance amount to an absolute disposition of them, and their Lordships are not prepared to differ from his views on this point. There remains the movable property. As to this the family arrangement is absolutely silent. The plaintiffs are therefore entitled to their share of these movables as inherited property. It will be seen, therefore, that their Lordships are of opinion that the judgment of the learned judge of first instance was right on all points. Both plaintiffs and defendants appealed from his decision to the High Court. The plaintiffs are therefore entitled to their share of these movables as inherited property. It will be seen, therefore, that their Lordships are of opinion that the judgment of the learned judge of first instance was right on all points. Both plaintiffs and defendants appealed from his decision to the High Court. That Court allowed the plaintiffs appeal and dismissed that of the defendants. The defendants appealed from both of these decisions. In their Lordships opinion the High Court ought to have dismissed both appeals. They will accordingly humbly advise His Majesty that the order of the High Court allowing the plaintiffs appeal should be discharged with costs, and the decree of the Subordinate Judge restored, and that the order of the High Court dismissing the defendants appeal should be affirmed. The plaintiffs must pay the costs of the defendants appeal to His Majesty in Council, and the defendants must pay the costs of their unsuccessful appeal.