Rangayya Gowder v. Narayanaswami Gowder — 1958 DIGILAW 83 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. This is an appeal by the plaintiffs against the dismissal by the learned Subordinate Judge of South Malabar at Palghat of their suit O. S. 52 of 1951. 2. The suit was for effecting a fresh partition of the properties described in Schedule 3 to the plaint and for allotment of half share to the plaintiffs and also to direct the second defendant to render an account of his dealings with the properties shown in plaint schedules 1C, 2A and 2B and the profits derived therefrom and also for the income and profits derived from the other properties shown in schedule 3. They also ask for certain consequential reliefs. The relationship of the parties has been given in paragraph 14 of the lower court judgment and it is unnecessary for us to reproduce the same. 3. It will be seen that one Rangayya Gowder had four sons, Krishnayya, Rangayya, Venkatrarna and Thimmayya. The first defendant is the son of Krishnayya and the father of two plaintiffs. The 10th defendant is the wife of the first defendant and the mother of the plaintiffs. The second defendant is the brother of the first defendant and his children are defendants 3 and 11 to 14. The 4th defendant is the only son of Rangayya who is no more. Defendants 5, 6 and 7 are the sons of Venkatrarna who is also no more. Thimmayya, the youngest son of Rangayya is the 8th defendant and his son is the 9th defendant. 4. The plaintiff's case was that the family of the plaintiffs and the other defendants, with its ancestral nucleus and by joint exertions of all the members had by the year 1939 become entitled and were in possession of the properties described in schedule 1. In that year, the members of the family orally agreed to divide into three branches -- defendants 5 to 7 with their father Venkatrama who was then alive forming one branch, defendants 4, 8 and 9 forming another branch and the first defendant with his sons, the plaintiffs and the second defendant with his son Vellingiri (now deceased) and another son the third defendant, forming the third branch. 5. 5. According to the plaintiffs, under the said agreement, the family properties were divided into three shares, the first, second and third branches taking absolutely the properties mentioned in plaint schedules 1A, 1B, and 1C respectively. The plaintiffs further alleged that in pursuance of the said division, the parties took possession of their respective shares subject to the liabilities stated therein. The document evidencing such arrangement is Ext. A1 in the suit. 6. The three branches acted up to the arrangement of partition and were in enjoyment absolutely of the properties so allotted and the properties allotted to the third branch were in the management of the second defendant till 30-4-1941 when a registered partition deed dated 30-4-1941, Ext. A2 was executed. There were certain departures from the arrangement entered into under Ext. Al. So far as the plaintiffs were concerned, their father the first defendant was divided off with a payment of Rs. 2,000/- and the plaintiffs themselves were separated from their father and from defendants 2 and 3 with a meagre provision made for a house and some cash payment; Whereas the second defendant's branch was allotted the entire valuable properties which were originally allotted in common to the third branch under Ext. A1. 7. The plaintiffs further alleged that their father the first defendant was an incompetent person who was not well versed in worldly affairs and he was leading a wayward life neglecting his wife and children. The second defendant took advantage of this incompetency of the first defendant and induced the plaintiffs' mother, the 10th defendant to agree to an arrangement which for all outward purposes would amount to sending out the first defendant and effecting a partition as between him and the plaintiffs. The second defendant is further stated to have promised the mother of the plaintiffs that he will pay some allowance and maintenance to the plaintiffs till they come off age and after that, they will be given a half share in the whole properties originally allotted to the third branch. The mother believed the representations of the second defendant and agreed to the arrangement under Ext-A2. 8. The mother believed the representations of the second defendant and agreed to the arrangement under Ext-A2. 8. It is further stated that after the first plaintiff attained majority, he approached his paternal uncle the second defendant to give the legitimate share of the first plaintiff and his brother the second plaintiff; but the second defendant declined to give any such share on the pretext that he is bound to pay the plaintiffs only what was stipulated in Ext-A2. 9. The plaintiffs further alleged that the attitude of the second defendant constituted in law a gross betrayal of trust and confidence reposed in him by their mother the 10th defendant. The second defendant who is in possession of all those properties, has been making enormous profits and has been declining to give the plaintiffs their share. The plaintiffs alleged that in view of the understanding between the second defendant and the mother of the plaintiffs and also because of the other circumstances, the second defendant is bound to bring all the properties in his possession for a fair and just division in law into two equal halves. 10. The plaintiffs further stated that under Ext. A1, the plaint items shown in schedule 1C were allotted to the branch of the plaintiffs, their father and defendant and his sons. They were also shown in the registered partition Ext. A2 as having been separated and divided among the plaintiffs on the one hand and defendants 2 and 3 on the other. Except a small house, all profit earning properties have been taken by the second defendant under Ext. A2. Therefore, the plaintiffs claimed a half share in all the properties in the possession of the second defendant. 11. Alternatively, the plaintiffs also pleaded that if the registered partition deed Ext. A2 had effected a final division and allotment of properties as between the plaintiffs, their father and the second defendant's branch, the whole partition arrangement itself is very unfair, unequal, inequitable and unjust. The partition is a fraud, according to the plaintiffs, perpetrated by the second defendant on the plaintiffs and as such, it is null and void as against the plaintiffs. There was no proper representation of the minors in the partition arrangement and the 10th defendant has been carried away by the misrepresentations made by the second defendant. 12. The partition is a fraud, according to the plaintiffs, perpetrated by the second defendant on the plaintiffs and as such, it is null and void as against the plaintiffs. There was no proper representation of the minors in the partition arrangement and the 10th defendant has been carried away by the misrepresentations made by the second defendant. 12. The plaintiffs further state that they have not been given properties worth their 2/18 share in the family properties. Properties allotted to the plaintiffs and the first defendant were very unequal in value, and defendants 2 and 3 have got properties whose value far exceeds their real share. The partition is highly detrimental and prejudicial to the plaintiffs and as such an equitable partition has to be effected. The plaintiffs also alleged that instead of being given immoveable properties, they have been cut off by a payment of a small cash consideration which is, in the circumstances, very inadequate. The plaintiffs stated that the properties allotted to them under Ext. A2 have been shown in plaint schedule 2A and those allotted to the defendants 2 and 3 and another deceased son of the second defendant in schedule 2B. The second defendant, with the rest of the immoveable properties and their income and profit-earning concerns is now possessed of the properties described in schedule 3 of the plaint. The said schedule 3 was stated to comprise properties allotted to the branch of the plaintiffs and their father and the second defendant and his sons under Ext. A1 which again were allotted to the branch under Ext. A2. The other items of properties in schedule 3, according to the plaintiffs, represented the further acquisitions and profits made by the second defendant with the help of the items given to the branch, under Exts. A1 and A2. The plaintiffs on these grounds asked for a half share in the properties comprised in schedule 3 of the plaint. 13. The plaintiffs further asked for an account from the second defendant, as in their view, he had made enormous profits by utilising those properties. 14. The plaintiffs further stated in paragraph 23 of the plaint that the other living members of the family who were parties to Exts. A1 and A2, have been impleaded in the suit only for the purpose of avoiding any technical objection as to non joinder of parties. 15. 14. The plaintiffs further stated in paragraph 23 of the plaint that the other living members of the family who were parties to Exts. A1 and A2, have been impleaded in the suit only for the purpose of avoiding any technical objection as to non joinder of parties. 15. On these allegations, the plaintiffs asked for the reliefs mentioned earlier. 16. The first defendant, the father of the plaintiffs filed a written statement supporting the case of his sons. He has stated that it was the second defendant who was always in management of the properties allotted to the third branch under Ext. A1. The first defendant admits in his written statement that he is an extravagant person and he was not looking after either his wife the 10th defendant or his children the plaintiffs. He says that the second defendant won him over and made his believe that it must be made to appear in Ext. A2 that the first defendant has been cut off from the family. He also states that the second defendant agreed to give a half share in all the properties to the plaintiffs when they came of age. 17. First defendant has also stated that he was not paid anything in cash towards his share of the properties and all the recitals so far as he was concerned in Ext. A2, were mere make-believe recitals. He also stated that his wife the 10th defendant was not conversant with worldly affairs and that he was acting under the dictation of the second defendant. 18. The second defendant contested the right of the plaintiffs to reopen the partition arrangements entered into under Ext. A2. The main contention that he took up in his written statement was that the plaintiffs having accepted the major partition under Ext. A2, are not entitled to reopen only that portion of the partition under Ext. A2 relating to the plaintiffs, the first defendant and the second defendant's branch. The remedy, if any, for the plaintiffs was to ask for the entire partition arrangement to be reopened in their favour if they are able to so satisfy the Court. The first defendant further contended that the share allotted to the plaintiffs, the first defendant and the second defendant's branch were arrived at under Ext. The remedy, if any, for the plaintiffs was to ask for the entire partition arrangement to be reopened in their favour if they are able to so satisfy the Court. The first defendant further contended that the share allotted to the plaintiffs, the first defendant and the second defendant's branch were arrived at under Ext. A2 after a consideration of the entire available assets and the value of the shares was fixed on that basis. The plaintiffs were not challenging the arrangement under Ext. A2 as such nor were they claiming any reliefs against the other defendants who were parties to Ext. A2 and therefore, it is not open to the plaintiffs to attempt to reopen the partition in part and leave the rest of the arrangement intact. The partition cannot be so reopened in part either in law or on the facts of this case so as to prejudice the claims of the second defendant and his branch. 19. The second defendant further contended that the whole earnings were that of Venkatrama Gowder and out of sympathy and his kindness he agreed to give a share to his other brothers and other members of the family. He also denied that there was any oral agreement regarding partition as stated by the plaintiffs. He disputed the right of the plaintiffs to rely upon Ext. A1, an unregistered partition arrangement, for purpose of proving a division of the properties. He also contended that the rights of parties are governed by Ext. A2. The father of the plaintiffs namely, the first defendant was an active party to the arrangements under Ext. A2. The mother of the plaintiffs who knew full well about the family affairs and considering the interests of her children the plaintiffs and also the wayward life of her husband the first defendant, has chosen to accept only cash after a consideration of all the circumstances. The valuation fixed and the shares allotted to each branch or persons under Ext. A2 is fair, equal and just and the plaintiffs can have no grievance whatsoever. 20. The 2nd defendant also denied the allegations of the plaintiffs that he made any misrepresentation or induced the 10th defendant to enter into the arrangement under Ext. A2 on behalf of the plaintiffs. The miners interest have been very well safeguarded as the several clauses in Ext. A2 21. 20. The 2nd defendant also denied the allegations of the plaintiffs that he made any misrepresentation or induced the 10th defendant to enter into the arrangement under Ext. A2 on behalf of the plaintiffs. The miners interest have been very well safeguarded as the several clauses in Ext. A2 21. The second defendant further contended that the properties in his possession were all obtained by him in a regular partition to which the plaintiff were parties under Ext. A2 and the plaintiffs or anybody are not entitled to claim any share therein. Further after obtaining them in partition, the second defendant further states that he has spent a lot of money over these properties and improved them considerably as he was entitled to in law. The plaintiffs have no claim whatsoever in properties referred to in schedule 3 of the plaint. 22. The second defendant filed also certain additional written statements challenging the right of the plaintiffs to reopen the partition or to get any relief in these proceedings. 23. The 4th defendant who is the son of Rangayya Gowder filed a written statement that the properties in his possession have been given to him in the family partition. He further stated that as the suit is only for a partition and separate possession of the properties allotted to the third branch consisting of the plaintiffs and defendants 1 to 3 and as no relief was claimed by the plaintiffs against him, he is an unnecessary party to the proceedings. The 5th defendant who is a son of Venkatrama, filed a written statement in more or less similar terms as that of the 4th defendant. The 8th defendant, that is, the youngest son of Rangayya Gowder adopted the written statement of the 5th defendant. 24. The learned Subordinate Judge, after a consideration of the oral and documentary evidence placed before him, came to the conclusion that Ext. Al dated 15-9-1939, evidencing a partition arrangement on that date, is not admissible in evidence as it was not registered. He also held that Ext. Al could not be considered to find out that properties were allotted to the different: groups under that so-called partition. The plaintiffs had set up a case of an oral agreement to divide the properties into three branches in 1939 as will be seen from the allegations in paragraph 3 of the plaint. He also held that Ext. Al could not be considered to find out that properties were allotted to the different: groups under that so-called partition. The plaintiffs had set up a case of an oral agreement to divide the properties into three branches in 1939 as will be seen from the allegations in paragraph 3 of the plaint. But on a consideration of the evidence, the learned Judge held that the plaintiffs have not been able to establish the said oral agreement as between the parties. 25. The learned Judge further considered the question whether apart from Ext. A1 there was any evidence in the case to show that plaint schedule 1C properties had been allotted to the branch of plaintiffs and defendants 1 to 3 and is to whether Ext. A2 could be considered to be a repartition of the properties already allotted to the parties. After considering the various recitals in Ext. A2 very closely, the learned Judge came to the conclusion that it was by virtue of Ext. A2 alone that a partition was effected as between the various parties and that he rights of the various parties has become crystallized only under this document. in the view of the learned Judge, Ext. A2 has provided very elaborately for the division of the properties, the way in which they have enjoyed and the rights of he various parties in the properties allotted to them exclusively. 26. The learned Judge further held that the shares of the various parties including that of the plaintiffs and their father the first defendant were ascertained under Ext. A2 after taking into consideration the value of the entire properties of the joint farm available for division. He also held that it cannot be considered by reference to Ext.A2 that there was any intention of any common allotment of properties to the such of the first defendant and second defendant and their sons collectively. Under Ext. A2, the shares of the first defendant, the plaintiffs and the second defendant have been separately arrived at and properties allotted as and for their respective shares. 27. In this view, the learned Judge held that as Ext. A2 is the only final legal partition as between all the members of the family including plaintiffs, it was not open to the plaintiffs in law to reopen only the arrangement under Ext. 27. In this view, the learned Judge held that as Ext. A2 is the only final legal partition as between all the members of the family including plaintiffs, it was not open to the plaintiffs in law to reopen only the arrangement under Ext. A2 regarding the shares given to the plaintiffs and the second defendant. Their remedy, if any, was to ask for a reopening of the entire partition arrangement under Ext. A2 not only as regards themselves and the second defendant, but even as regards all the other members who are parties to the partition arrangement. The learned Judge held that the plaintiff himself had definitely stated in the plaint that the other parties to the partition arrangement were added as defendants only to meet an objection of non joinder. No relief was claimed as against the other parties or the properties in their possession or regarding the several other matters provided under Ext. A2. 28. In view of the frame of the suit and in view of the reliefs asked for, the learned Judge finally held that the partition arrangement under Ext. A2 cannot be set aside in part even if the division as regards the plaintiffs was unfair and there was failure on the part of the other members to give the plaintiffs the adequate value of their share either in money or in properties and that the plaintiffs' remedy is to seek repartition of the entire family properties and not merely of the properties allotted to the plaintiffs and defendants 1 to 3 alone. 29. Having held against the plaintiffs that the suit as framed is not mantainable in view of the reasons stated above, the learned Judge, however, thought it necessary to consider how far the plaintiffs' case about the partition being unfair and inequitable is justified. In our opinion, the pursuit of this aspect of the matter was really unnecessary for a disposal of the suit because a decision on the question about partition being unfair or inequitable can only be considered and a finding given after all the other parties to the partition document are given an opportunity to contest the case of the plaintiffs. As the learned Judge, has rightly remarked, no reliefs were claimed against the other parties to the partition arrangement. In fact, Ext. A2 as such was not being challenged by the plaintiffs. As the learned Judge, has rightly remarked, no reliefs were claimed against the other parties to the partition arrangement. In fact, Ext. A2 as such was not being challenged by the plaintiffs. They have specifically stated that they are claiming no relief against the other defendants. The other defendants had filed written statement to the effect that as no reliefs are being asked for against them, they are really unnecessary parties to the proceedings. They never let in any evidence and they had no opportunity of meeting any case of the plaintiff about the partition arrangement under Ext. A2 itself being unfair or unequal. 30. Notwithstanding these circumstances, the learned Judge went into this question, and considered the several allotments made under Ext. A2. He considered the valuation given in the several schedules in Ext. A2 and he also took the valuation regarding the properties allotted to the second defendant and his sons. The learned Judge was prepared to proceed on the basis that at the time of Ext. A2 the value of immovable properties were still very low and that the country has not recovered from economic depression. 31. The learned Judge was not prepared to accept the oral evidence adduced regarding valuation as furnished by the evidence of P. Ws. 2, 3, 4 and 6. But the learned Judge thought that he can place reliance on the evidence of P.W. 5, a master carpenter. The learned Judge has considered the evidence of the second defendant as D. W. 2 but was inclined to take the view that his testimony is an interested one. The learned Judge says that but for the evidence of P. W. 5 he was prepared to hold that the plaintiffs have not proved their case regarding unfair valuation. Finding some support in the evidence of P. W. 5 and also what the learned Judge calls intrinsic evidence contained in Ext. A2, the learned Judge came to the conclusion that the valuation given in Ext. A2 is not wholly fair. 32. We are not able to know to which schedule this finding relates because the learned Judge does not refer to any specific schedule. A2, the learned Judge came to the conclusion that the valuation given in Ext. A2 is not wholly fair. 32. We are not able to know to which schedule this finding relates because the learned Judge does not refer to any specific schedule. It cannot certainly refer to the properties allotted to the second defendant and his sons because the learned judge states at the conclusion of paragraph 35 of his judgment that in the view he takes about the frame of the suit, he considers it unnecessary to further elaborate the point about the valuation of the properties allotted to the second defendant. 33. Then the learned Judge proceeded to consider the valuation of the properties allotted to Venkatrama's branch as illustrative on the ground that it is not necessary for the plaintiffs to make out that the properties allotted to the second defendant's branch have been under-valued and that it is enough for them to show that any of the schedules out of which the plaintiffs are entitled to claim a share in general partition, has been unfairly valued. Here again we may state that it is not certainly the case of the plaintiffs that Venkatrama's branch or for the matter of that the shares of any of the other branches has been under-valued. The plaintiffs have no such case and they do not attack either the shares or the value of the shares allotted to either Venketrama or to any of the other branches, excepting that of the second defendant. As stated earlier, Venkatrama's branch which was represented by the 4th defendant, had no opportunity to meet any such claim or place the necessary evidence before the court. Notwithstanding that, the learned Judge goes into the valuation of the share allotted to Venkatrama's branch and without any legal evidence on the side of the parties who are really interested in that share, has come to the conclusion that the share allotted to Venkatrama's branch was worth much more than Rs. 27,000/-, the valuation given in the partition-deed. Similarly, he also runs through the other schedules allotted to the other branches and ultimately came to the conclusion that the share allotted to the plaintiffs was absolutely unfair. 34. 27,000/-, the valuation given in the partition-deed. Similarly, he also runs through the other schedules allotted to the other branches and ultimately came to the conclusion that the share allotted to the plaintiffs was absolutely unfair. 34. Regarding the plaintiffs' contention that the partition is unfair inasmuch as only money has been given to their share, the learned Judge rejected it on the ground that that by itself will not invalidate a partition if it is otherwise valid. 35. The learned Judge rejected the contention of the plaintiffs that there was any misrepresentation or undue influence exercised by the second defendant over their mother the 10th defendant when she signed Ext. A2 on behalf of the plaintiffs. The learned Judge has considered the evidence of the 10th defendant herself as P. W. 1 and come to the conclusion that Venkatrama treated every member of the family equally and he had absolutely no evil designs against any of them. He also rejected the case of the plaintiffs that their mother was not fully conversant with the true nature of the document namely, Ext. A2. But the learned Judge held that when the first defendant, the father of the plaintiffs was alive, the mother the 10th defendant has no power to represent the minors in the partition arrangement under Ext. A2 and therefore, Ext. A2 is void and not binding on the minors. The learned Judge again held that these are all matters, to be gone into in a suit for general partition attacking Ext. A2 itself. The learned Judge has also given findings on the other issues that arose for decision. 36. In view of his finding that the remedy of the plaintiffs is to seek to reopen the entire partition, the learned Judge dismissed the suit without costs. 37. Mr. D. A. Krishna Warrier, learned counsel for the appellant, has very strenuously attacked the finding of the learned Judge that the suit as framed is not maintainable. The learned counsel takes full advantage of the findings of the learned Judge that the valuation of the several schedules given in Ext. A2 do not represent the true valuation as also the finding that the share allotted to the plaintiffs is very unequal. He also contended that Ext. The learned counsel takes full advantage of the findings of the learned Judge that the valuation of the several schedules given in Ext. A2 do not represent the true valuation as also the finding that the share allotted to the plaintiffs is very unequal. He also contended that Ext. A1 is admissible in evidence and that clearly shows that there has been already a partition in the family and parties were put in possession of the properties in the manner stated therein. According to Ext. A1, it will be seen that the plaintiffs, the first defendant, second defendant and third defendant and the deceased son of the second defendant have been treated as one group and valuable properties have been allotted to that group. The partition has become complete and it is not open to the parties to enter into any fresh partition altering the original division already entered into. The partition as disclosed by Ext, A2 itself affirms the original arrangement under Ext. A1 and any alteration of the arrangement embodied in Ext. A1, is not valid or binding on the plaintiffs. 38. Mr. K. S. Krishnaswami Ayyengar, learned counsel for the contesting second defendant, has supported the finding of the learned Judge regarding the non admissibility of Ext. A1. According to the learned counsel it is no doubt open to the parties to rely upon Ext. Al for purpose of showing a division in, status but it is not open to the two plaintiffs to go further and rely upon the-unregistered document Ext. A1 for showing the manner of allotment of the properties to the different groups. Ext. A1, according to Mr. Krishnaswami Ayyengar, cannot be looked into for proving a legal allotment and that is exactly what the appellant's counsel wants to do now. According to the learned counsel, it is Ext. A2 that really effects a partition as between the several members of the family. 39. In our opinion, Mr. Krishnaswami Ayyangar is well founded in hiscontention that Ext. A1 is not admissible for purpose of showing the allotments made of the properties under that arrangement. Ext. A1 is styled a Partition Karar and all the members of the family are parties. Minor members are represented by their respective guardians. Clause 2 states that they have agreed to divide the joint properties and the shares are also mentioned therein. A1 is not admissible for purpose of showing the allotments made of the properties under that arrangement. Ext. A1 is styled a Partition Karar and all the members of the family are parties. Minor members are represented by their respective guardians. Clause 2 states that they have agreed to divide the joint properties and the shares are also mentioned therein. Then as to how the shares are to be worked out is staled in the subsequent paragraphs. Clauses 3 and 4 states that the properties allotted to the different sharers are taken by them in partition. Paragraph 5 says that from that day onwards, the sharers are entitled to enjoy their shares with absolute rights. It further provides for payment of debts. Clause 6 states that hereafter, each sharer is at full liberty to change the Vilasara of the business and that nobody else has any right or liability over the same. Para 9 states that incorporating all those terms it has been agreed to execute a partition deed and get it registered in due course. After the signature of the major members for themselves and as guardians, the document is attested by 2 witnesses and the schedules follow this. 40. Mr. Krishnaswami Ayyengar has referred us to certain decisions to show that Ext. Al is not admissible in evidence and that it cannot be looked into for purposes of allotment of properties thereunder. The first decision relied upon by learned counsel is that of Mr. Justice Patanjali Sastri reported in Raghava Rao v. Gopala Rao AIR 1942 Mad. 125. In that case the plaintiff relied upon an unregistered partition document to prove that certain properties had been allotted to his share under that document. The learned Judge after considering the document, observes that it was signed by all the brothers and attested by witnesses and that the said document purported to effect a partition of the properties. Objection was taken by the defendant that the said document not having been registered, was inadmissible to prove the allotment of the property to the plaintiff. The plaintiff attempted to meet this objection by showing that the arrangement under the document was not intended to be final and that the parties contemplated the execution of a regular partition deed later on. The plaintiff attempted to meet this objection by showing that the arrangement under the document was not intended to be final and that the parties contemplated the execution of a regular partition deed later on. In dealing with this point, the learned Judge at page 126 of the reports observes as follows : "This view cannot be accepted, for, as already observed, it is not disputed that the allotment of the immovable properties under Ext. A was intended to be final. The mere fact that the parties contemplated the execution of a more comprehensive partition deed later on does not make Ext. A any the less operative to create interests in the immovable properties comprised therein. It cannot therefore be said that Ext. A does not require registration. It clearly falls within S.17, Registration Act, and being unregistered, it must be held to be inadmissible in evidence". The learned Judge further observes at page 126 as follows: "If the partition deed could be used as evidence of only a division in status and could not be relied on to show that the properties there in question were allotted to the share of the plaintiff's husband as held by the learned Judge, the position would be that the plaintiff's husband and his brothers were tenants in-common of the family properties. As pointed out in Subba Rao v. Mahalakshmamma 54 Mad. 27 at p. 53 the finding that the partition deed was inadmissible to show what property fall to each cosharer must result in the conclusion that each cosharer enjoyed an undivided share in each item of the properties. In such circumstances, even if one cosharer happened to be in sole enjoyment of a particular piece of property, he could not, as it seems to me, sue in ejectment if an other coowner disturbed such enjoyment. He could only bring a suit for partition of all the properties owned in common or, according to some decisions, for joint possession with his co-owners." In this view, the learned Judge held that there was no allotment to the share of the plaintiff at a valid partition under the suit document therein and as such dismissed his suit. 41. The observation of the learned Judge clearly shows that a document like Ext. 41. The observation of the learned Judge clearly shows that a document like Ext. A1, before us, is not admissible in evidence and if it is not admissible in evidence, it is not open to the plaintiff to rely upon it for purposes of showing the allotment of properties and laying claim to them by virtue of such allotment. It further follows that once Ext. Al falls to the ground, each cosharer was in enjoyment of an undivided share in each item of the properties. 42. This decision of Mr. Justice Patanjali Sastri has been approved by a Full Bench decision of the Madras High Court in Ramayya v. Achamma (FB) ( AIR 1944 Mad. 550 . The learned Judges of the Full Bench at page 551 of trie report observed as follows :"In the present case a division by metes and bounds took place before the execution of the partition deed. As the property in suit admittedly had belonged to the joint family, the change in its character must be proved. As the agreement for partition cannot be proved, the Court can only regard the property as still belonging to the joint family. Moreover, as Patanjali Sastri, J. pointed out, one coowner cannot maintain a suit for trespass against another coowner." 43. These observations of the Full Bench clearly show that where the agreement for partition cannot be proved for want of registration, the court can only regard the property as still belonging to the joint family. 44. Mr. Krishna Warrier laid great emphasis upon paragraph 9 of Ext. A1 to show that Ext. A1 is only a very informal document and that parties contemplated the execution of a regular registered partition deed in due course. Such a recital in a document will not take it away from the mischief of non registration is also laid down in two Bench decisions of the Madras High Court reported in Muhammad Ghouse Sahib v. Jamila Bi 1950 (I) MLJ 151 , Subba Rao & Somasundaram, JJ and Radhakrishayya v. Sarasamma 1950 (II) MLJ 338 - Subba Rao & Panchapakesa Ayyar, JJ. The learned Judges have very exhaustively considered the law on the subject and have come to the conclusion that the fact that a provision was inserted enabling the parties to get a proper partition deed written up and get it registered did not take away the document from the mischief of S.17 of the Registration Act and that the document is not admissible in evidence unless it is registered. 45. We, respectfully follow the rulings quoted above. A perusal of the present document, Ext. A1, leaves no doubt in our minds that it creates an interest inpresenti in the properties covered by the same and therefore, it requires registration. It not having been registered, we agree with the learned Subordinate Judge that the document is not admissible in evidence. 46. The second contention of Mr. Krishna Warrier, learned counsel for the appellant, is that the finding of the learned Judge that the plaintiffs cannot claim any relief unless they seek to set aside the entire partition arrangement under Ext. A2, is not correct. According to the learned counsel, the partition arrangement evidenced by Ext. A2 consists of several parts which could be separated from each other. His client is not interested in reopening of the allotments in favour of the other sharers. The plaintiffs' grievance is only regarding the allotment of shares to them, to their father the first defendant and to the branch of the second defendant. Further his clients also relied upon an arrangement between their mother the 10th defendant and the second defendant by which the second defendant promised to give an equal share to the plaintiffs after they attained majority. 47. On the other hand, Mr. Krishnaswami Ayyengar, learned counsel for the second defendant contended that the whole arrangement evidenced by Ext. A2 is a composite one and no part of it can be separated from the other. The entire assets of the joint family is taken into consideration and properties are allotted to the different sharers in proportion to their shares in the joint family. There is no such allotment under Ext. A2 as between the plaintiffs, the first defendant and the second defendant alone. The amount fixed for the first defendant is arrived at after reference to the entire properties of the joint family; similarly, with regard to the plaintiffs and the second defendant. There is no such allotment under Ext. A2 as between the plaintiffs, the first defendant and the second defendant alone. The amount fixed for the first defendant is arrived at after reference to the entire properties of the joint family; similarly, with regard to the plaintiffs and the second defendant. The second defendant's share has also been worked out in relation to the entire assets available and it is after such fixation that he has been directed to pay owelty to the plaintiffs. 48. To appreciate the contentions of the learned counsel on both sides it is necessary to have a comprehensive view of the scope of Ext. A2 with reference to certain clauses in particular. 49. Ext. A2 dated 30th April 1941 is styled a Partition Deed entered into among Venkatrama Gowder and the other members of the family. The first defendant is the 7th executant and the present plaintiffs are executants Nos. 8 and 9 then as minors. The second defendant was the 10th executant. The present plaintiffs are represented there by their mother and guardian the present 10th defendant. Clause 3 states that they became divided in status on 30th Pocku Chingam 1114. Paragraph 4 gives the groups of individuals who are to take shares. In that, it will be seen that the first defendant was treated as an individual sharer and the present plaintiffs were treated as one branch and the present second defendant and his sons were treated as another branch. Therefore, it will be clearly seen that the first defendant, the present plaintiffs and the second defendant's branch have been treated separately. Paragraph 5 states that the properties to be divided are included in schedules A to E. Clause 6 makes the allotment of various schedules to the different sharers. C schedule properties therein, with all the rights over them and with all the improvements in them have been set apart for the group of the 8th and 9th executants therein who are the present plaintiffs 1 and 2. Similarly D schedule properties therein were allotted to the group consisting of the present second defendant and his sons. There is a further recital that the properties are divided under that document and taken possession of by the several groups and that each has got possession of the properties allotted to them. It is also stated that the properties set apart for Nos. There is a further recital that the properties are divided under that document and taken possession of by the several groups and that each has got possession of the properties allotted to them. It is also stated that the properties set apart for Nos. 8 and 9 namely, the present plaintiffs are taken possession of by their mother as guardian. Clause 7 deals with certain rights in the properties allotted by the branches of Venketrama and Thimmayya. Similarly, clause 8 deals with the rights of another group. Clause 9 specifically says that Nos. 10, 11 and 12 groups (the present second defendant and his sons) have taken as their share the rice mill and all other materials pertaining to it, Gowder Press and printing machine etc., and other articles mentioned therein described in schedule D. Clause 10 states that the 7th executant (the present first defendant) has debts and that he does not want his share in immovable properties and that instead he wants his share in cash. It is stated that in view of this, the 7th defendant is not allotted any immovable properties. Clause 11 categorically says that the properties to be divided 'among us' are divided into three shares and the way in which the shares are worked out is also given there. Out of the 1/3 share, half of that is given to the present second defendant and his sons and out of the balance half, 1/3 is again given to the first defendant and 2/3 to the present plaintiffs, and it also says that it is as per this settlement that the partition has taken place. Clause 11 further says that out of the value of the entire properties the present first defendant is entitled to get for his share a sum of Rs. 4,500/- and then how it is to be adjusted from the share of the second defendant and his branch is given therein. Similarly, for the sum of Rs. 9,000/- due for the value of the share of the present second defendant and his children to the present plaintiffs, a house valued at Rs. 1,500/- is allotted to them and the balance Rs. 7,500/- is to be paid by the present second defendant and his children to the present plaintiffs to equalise the shares. 9,000/- due for the value of the share of the present second defendant and his children to the present plaintiffs, a house valued at Rs. 1,500/- is allotted to them and the balance Rs. 7,500/- is to be paid by the present second defendant and his children to the present plaintiffs to equalise the shares. Then there are certain other stipulations about the working out of the first defendant's and the present plaintiffs' shares. The said clause winds up by saying that the present first defendant's entire share is as stated in the said clause and that his right over the whole properties is thus satisfied. Clause 12 makes certain provisions for payment by the second defendant and his sons to the guardian of the plaintiffs for maintenance, menchilavu and other educational expenses every month and this Rs. 50/- represents the interest per month on the sum of Rs. 10,000/- which is reserved with the second defendant to be paid to the plaintiffs on their attaining majority -- each of the plaintiffs to get Rs. 5,000/-. As to how this Rs. 10,000/- is made up of is also mentioned in clause 12. There are also provisions to the effect that if there is default in payment of this interest, the guardian is given a right to claim compound interest. For this sum of Rs. 10,000/- retained with the second defendant, the properties given as his share under Schedule D of the document have been made a charge apart from his personal liability. Clause 13 states that the shares of all parties have been equalised and the shares of the first defendant and the second defendant have also been fully satisfied. Clause 16 states that the properties divided and taken possession of under the document from that day onwards are to be kept in possession and enjoyed by the respective parties at their absolute discretion. It provides for getting transfer of pattas. Clause 17 states that the guardian of the present plaintiffs has got the right to receive interest on behalf of the plaintiffs and that she has no right either in the I principal sum of Rs. 10,000/- or in the house given to the plaintiffs and that she is not entitled to create any incumbrances on these properties. Clause 18 states that the documents relating to the properties have been given to the various parties. 10,000/- or in the house given to the plaintiffs and that she is not entitled to create any incumbrances on these properties. Clause 18 states that the documents relating to the properties have been given to the various parties. Clause 20 says that in future, the parties have no community of interest and they have no property connection and the respective sharers alone are entitled to the rights and subject to the liabilities in respect of the properties obtained by each of them in partition under that document and that thereafter, there is no community of interest. Clause 25 further provides that if the second defendant and his sons want to alienate the properties which have been made a charge for the amount due to the present plaintiffs, the second defendant has to furnish other sufficient property as security for the sum of Rs. 10,000/-. 50. The document is signed by all parties and there are valuation statements attached thereto. 51. We are not able to accept the contention of Mr. Krishna Warrier that the terms in the document are in any way separable. There is no common allotment of properties to the shares of the first defendant, plaintiffs and the second defendant and his sons collectively. The shares arrived at for each of the parties is with reference to the total asset available for partition. It is not as if that the properties allotted to the plaintiffs, the first defendant and the second defendant alone have been valued and divided between them. The total valuation of the entire joint family properties has been taken into account in fixing up the value of the properties to be allotted to each of the sharers therein. If there is any doubt regarding this matter, it is made very clear by the categorical statement made in clause 11 of Ext. A2 that the properties to be divided among the parties are divided into three shares and the three shares are distributed to the several groups. There is further the significant recital that out of the value of the entire properties, the share of the first defendant is fixed up. Similarly, the value of the share of the present plaintiffs is also arrived at with reference to the value of the entire joint family properties. There is further the significant recital that out of the value of the entire properties, the share of the first defendant is fixed up. Similarly, the value of the share of the present plaintiffs is also arrived at with reference to the value of the entire joint family properties. The excess value of the properties allotted to the second defendant and his sons has been, equalised by directing him to pay owelty to the plaintiffs. In fact, such a provision could have been made in respect of any sharer. In view of the fact that the first defendant and second defendant were brothers and representing Krishnayya's branch, the parties must have proceeded on the basis that it is desirable that the direction for payment of owelty can be put against the second defendant. 52. Clause 11 further states that the first defendant's right over the whole properties has been satisfied. Clause 13 again reiterates the same view that the shares of all the parties have been satisfied by being equalised and adjusted in the manner mentioned earlier in the document. 53. The whole document is a composite one and the rights of parties are closely inter mingled and mixed up and they are worked out with reference to the entire properties available. Therefore, in such circumstances, in our opinion, it is not open to the plaintiffs to complain about any inequality of division if any, as between themselves, the first defendant and the second defendant along with his sons. In such circumstances, in our opinion, if they have got any grievance against the partition arrangement, their remedy is only by way of a suit for general partition regarding all the assets of the entire joint family. 54. Though Mr. Krishna Warrier contended that even in such circumstances, it is open to his clients to leave off the other allotments and challenge only a particular allotment, he has not been able to cite any authority in support of this contention. 55. Though the first defendant has filed a written-statement to the effect that the recitals regarding his not requiring immovable properties and other similar recitals against him are absolutely false, he has not chosen to substantiate his contentions by giving evidence before the court. 56. 55. Though the first defendant has filed a written-statement to the effect that the recitals regarding his not requiring immovable properties and other similar recitals against him are absolutely false, he has not chosen to substantiate his contentions by giving evidence before the court. 56. The one thing that strikes us on a perusal of the document is that the parties have taken sufficient care to protect the interests of the plaintiffs regarding the properties allotted to them. This is very clear from a perusal of paragraphs 12, 17 and 25. The learned Judge has also held that the case of the plaintiffs about any fraud or misrepresentation made by the second defendant to the mother of the plaintiffs is not also established by the evidence in this case. Therefore, we accept the findings of the learned Judge that plaintiffs' suit as framed is not maintainable in law and as such, it has to be dismissed. 57. Realising this difficulty, Mr. Krishna Warrier has filed an application for amendment of the plaint. Before we deal with this application for amendment it is better to deal with the contention of Mr. Krishnaswami Ayyengar that the findings recorded by the learned Judge on the inequitable nature of the partition arrangement is neither necessary nor justified on the evidence in this case. On the other hand, Mr. Krishna Warrier contends that the lower court was right in considering that question of inequality and also giving a finding on this matter, 58. We are inclined to accept the contention of Mr. Krishnaswami Ayyengar that the findings recorded by the learned Judge on this question of inequality is not only not justified but also not warranted by the evidence adduced in this case. 59. Earlier in this judgment, we have indicated briefly our views on this matter when setting out the findings of the learned Judge. This question of inequality or otherwise, in our opinion, does not arise when once learned Judge has come to the conclusion that the suit as framed is not maintainable. 60. In this case, as stated earlier, the plaintiffs are not asking for any relief regarding the shares allotted to the branches of Venketrama and others. That is, he is not attacking the arrangement under Ext. A2 as such. 60. In this case, as stated earlier, the plaintiffs are not asking for any relief regarding the shares allotted to the branches of Venketrama and others. That is, he is not attacking the arrangement under Ext. A2 as such. His only attack is regarding the share allotted to the second defendant and his sons and he has also stated that he has made the other sharers parties only to avoid the technical objection of non misjoinder. Therefore, the sharers representing Venketrama or the other groups had absolutely no opportunity of fighting the case of the plaintiff, if any, as against them. In fact, the plaintiff has no grievance against the shares allotted to them. While so, the learned Judge, in our opinion, was not justified in considering the valuation of the properties in the hands of Venketrama and other people and coming to a conclusion that the allotment of the properties to the plaintiffs is absolutely unfair, having regard to the valuation of properties allotted to the other sharers. The persons who are vitally interested in such a finding and placing the necessary materials before the court had no opportunity to adduce any evidence. Therefore in our view, the finding recorded by the learned Judge regarding the valuation of Venketrama's share and the shares of the other members is not warranted and as such has to be set aside. We do not propose to go into that question and record a finding ourselves because it is absolutely beyond the scope of either the suit or the appeal especially when the plaintiff himself does not challenge Ext. A2 as such and the allotments made to the other sharers. 61. Similarly, the learned Judge has not considered the actual value of the properties allotted to the second defendant and his sons. He makes a very casual remark at the close of paragraph 5 of his judgment that the second defendant and his sons have been allotted Gowder Picture Palace buildings, the sites shop buildings etc., etc., as per C schedule in Ext. A2. He makes a very casual remark at the close of paragraph 5 of his judgment that the second defendant and his sons have been allotted Gowder Picture Palace buildings, the sites shop buildings etc., etc., as per C schedule in Ext. A2. Then he leaves off a discussion of this question and then he observes : "But in the view I take of the frame of this suit, it is unnecessary to further labour this point." If really the learned Judge was embarking upon an enquiry into the unequal nature of the shares the only party who was contesting the suit and against whom relief was claimed, was the second defendant and he has offered evidence in support of his case. Then it was the duty of the learned Judge to consider it if he found it necessary. In our opinion, the learned Judge was not justified in raising a doubt as regards the allotment in this summary manner. As the learned Judge has not really given a finding regarding the value of the properties allotted to the second defendant, there is nothing for us to interfere excepting to express our disapproval of the manner in which the learned Judge has considered this aspect of the matter. 62. Regarding the general valuation of all the properties, again the learned Judge has considered the oral evidence adduced on the side of the plaintiffs. The oral evidence consisted of the evidence of P. Ws. 2, 3, 4, 5 and 6 as against the evidence of D. W. 1 and D. W. 2. The learned Judge has rejected the evidence of P. Ws. 2, 3, 4 and 6 on this matter and the learned Judge further says that if the matter rested only on that evidence he would have held that the plaintiffs have not proved their case of unfair valuation. But the learned Judge states that there is the evidence of P. W. 5, the master carpenter and that there are also admissions of the second defendant and that taken along with the intrinsic evidence contained in Ext. A2, it must be held that the valuation in Ext. A2 is not wholly fair. The learned Judge does not give us any assistance as to what the admissions of the second defendant are or what the intrinsic evidence in Ext. A2 was regarding the unfairness of the valuation. A2, it must be held that the valuation in Ext. A2 is not wholly fair. The learned Judge does not give us any assistance as to what the admissions of the second defendant are or what the intrinsic evidence in Ext. A2 was regarding the unfairness of the valuation. We have gone through the evidence of D. W. 2 and the learned Judge himself has more or less quoted that evidence in extenso and he has given the valuation of the properties at the time of the partition and also the several improvements he had made to the various properties in his possession. We see no reason to reject the evidence of the second defendant. In fact, even the learned Judge has accepted the evidence of D. W. 1 regarding the valuation and he has not at any rate rejected the evidence of the second defendant except saying that he is an interested witness. Of course, the second defendant as a party is an interested witness. But the question is what is it that the plaintiffs have been able to establish. They are the persons who have set up the inequality of the partition. Their father was a party to the document and their mother acted as their guardian. Now we have to see whether there is anything in the evidence of P. W. 5 which will justify the finding of the learned Judge. We have been taken through the evidence of the master carpenter P. W. 5. The master carpenter has stated his estimate and the value of the Gowder Picture Palace and that he put up the structure about 15 years ago and he was able to give figures as to what the cost would have been. 63. In cross examination, he has stated that improvements have been effected to the buildings after partition. He further states that the prices given by him are the prices prevalent on the day of his giving evidence namely, 9-9-1953 ; whereas the partition took place in 1941 when even according to the learned Judge, the country had not recovered from the economic depression. He also states that he does not keep any accounts and he cannot also say what wages he himself got in the construction though he is prepared to give the value of the properties. He also states that he does not keep any accounts and he cannot also say what wages he himself got in the construction though he is prepared to give the value of the properties. He was also not able to give the other expenses which has gone in the cost of the several buildings. We do not find any assistance in the evidence of this witness to come to the conclusion of any inequality of the shares. In fact, this witness is only giving the prices at the time of his giving evidence when the circumstances prevalent then have no relation to the circumstances prevailing in 1941 even according to the learned Judge. Therefore, in our opinion, the reliance placed by the learned Judge on this sole evidence to come to a conclusion that the valuation is not wholly fair is not justified. 64. Mr. Krishna Warrier laid stress on the circumstance that his clients have not been given any appreciable immovable properties and therefore, on that ground, the partition should be considered to be unfair. This contention is not sound as will be seen from the decision reported in S.R.K. Ramaswami v. Kumaravelu Goundan 1956 (II) MLJ 200 . There, the learned Judges have held that there is nothing in the partition arrangement in which one sharer is agreeable to taking cash in lieu of immovable properties as and for his share unless any fraud or collusion is established. In this case, there is a definite recital in paragraph 10 or Ext. A2 that the present first defendant does not want any cash. There is also the evidence of the second defendant to show that the defendant was leading a wayward life and not looking after his wife and children. That is also the evidence of the first defendant's wife namely, the 10th defendant as P. W. 1. In fact, even the case of the plaintiff in the plaint is that their father was a wayward man. There is also the evidence of the second defendant that as there was nobody to take charge of the estate of the plaintiffs who were then minors excepting their mother, the 10th defendant, all the parties thought that it is not desirable to allot any business concerns to them as the plaintiffs will find it difficult to manage them. In fact, Ext. In fact, Ext. A2 clearly shows that the sharers have made sufficient safeguards to protect the interests of the minors' property which was entrusted to the second defendant. 65. The learned Judge has also held against the case of the plaintiff of any fraud or misrepresentation on the part of the second defendant. The lower court has also held that the mother of the plaintiffs was fully aware of the recitals in the document Ext. A2 when she executed it on behalf of the plaintiffs. But the learned Judge has held that when the first defendant father was alive, it was not open to the mother the 10th defendant to act as a guardian of the plaintiffs who were then minors and enter into a transaction like Ext. A2. On this reasoning, the learned Judge has taken the view that the partition deed is void. 66. Mr. Krishnaswami Ayyengar contends that the view of the learned Judge is not sound in law. He has relied upon the passage in Maynes Hindu Law 11th edition, page 527 about the right of the parties to claim partition even when there are minors and that if a proper share is allotted the minors cannot challenge on ground of non representation or improper representation. In this case, the first defendant, the father was a party to the partition document. There is evidence to show that he was not at that time taking any interests in his children the plaintiffs. In fact, there is the evidence to show that he was very much indebted and leading a wayward life. In the interests of the minors, all the other sharers thought it better to separate the first defendant from his children and they even thought it unsafe to entrust the share of the plaintiffs to the first defendant. On the other hand, they entrusted it to the second defendant with suitable safeguards. 67. Even the mother as P. W. 1 does not say that the first defendant was not aware of what is going on regarding this family partition. In fact, she could not give any such evidence because the first defendant is a party to the partition document as executant No. 7 and he has signed the document and admitted execution. 67. Even the mother as P. W. 1 does not say that the first defendant was not aware of what is going on regarding this family partition. In fact, she could not give any such evidence because the first defendant is a party to the partition document as executant No. 7 and he has signed the document and admitted execution. In fact, he has also filed a written statement to the effect that the second defendant represented to him that it must be made to appear in the document that the first defendant has separated etc. This clearly shows that the first defendant was fully aware of all that was going on. When the first defendant was not looking after his wife and children, in our opinion, there is nothing wrong in the mother acting as the guardian of the plaintiffs and entering into a transaction in their best interest. 68. The second defendant clearly speaks to the circumstances under which they had to ask the mother of the plaintiffs to represent them in the partition and there is no evidence contra placed on the side of the plaintiffs. 69. Under similar circumstances, their Lordships of the Supreme Court in the decision reported in Ponnammal v. R. Srinivasarangan AIR 1956 SC 162 at 167 observed: "It had been decided that the mother would figure as the guardian of her minor sons and not the father, who under the law would be the preferential guardian. The reason was that the legal advisers thought it advisable to keep the properties out of the hands of the plaintiff's father who, as found by both the courts below, was fully cognisant of the entire negotiations and the terms which were ultimately given effect to." In this case, the lower court has also held that there is positive evidence of P. W. 1 that the first defendant was a drunkard and was keeping a concubine. In our opinion, the authority relied upon by the learned Subordinate Judge has no bearing at all on a matter like this. 70. The observations of their Lordships of the Supreme Court extracted above clearly shows that though the father is the preferential guardian, nevertheless, the mother can certainly represent the minors if there are circumstances justifying her acting as the guardian. 70. The observations of their Lordships of the Supreme Court extracted above clearly shows that though the father is the preferential guardian, nevertheless, the mother can certainly represent the minors if there are circumstances justifying her acting as the guardian. Their Lordships were dealing with a case of family arrangement entered into by the mother as the guardian of the minors when the father was also otherwise aware of the whole arrangement. In this case, in our opinion, there are enough circumstances justifying the mother acting as the guardian and representing minors in the partition arrangement and, in our opinion, such representation by the mother rather than father was in the best interests of the minors themselves. We may also refer to the decision of the Kerala High Court reported in Parukutty Amma v. Chellamma and Others 1957 KLJ 177 . Though no doubt, it was a case arising under Nair Act - Act II of 1100 (Travancore) dealing with a Marumakkathayam tarwad, the learned Judges (Koshi, C. J., and Kumara Pillai, J) have held that when a partition deed is executed by all the adult members of the tarwad effecting a just and fair partition between the members thereof, including adults and minors, the mere fact that it was the father of the minor members who joined in the execution of the partition deed as their guardian, will not render the deed absolutely void and of no effect. The learned Judges also held that so long as there is no fraud and the partition is just and fair, the partition deed would be binding upon the members even without any representative of the minors taking part in its execution. That a representation of a minor in a partition arrangement by a person other than the natural guardian does not vitiate the partition if it is not unfair or prejudicial to the interest of the minors is also laid down by Satyanarayana Rao and Rajagopalan, JJ, in Devayya and Sons v. Commissioner of Income Tax, Madras 1952 (II) M.LJ. 555 . In that case, it will be seen that a minor was represented in the partition arrangement as between his brothers by his father in-law. Mr. Justice Satyanarayana Rao quotes the observations of the Privy Council in Balakrishen Das v. Ram Narain Sahu ILR 30 Cal. 555 . In that case, it will be seen that a minor was represented in the partition arrangement as between his brothers by his father in-law. Mr. Justice Satyanarayana Rao quotes the observations of the Privy Council in Balakrishen Das v. Ram Narain Sahu ILR 30 Cal. 738 to the effect that a valid agreement for partition may be made during the minority of one or more coparceners. It is because of the admitted right of one coparcener to claim partition. If the partition was unfair or prejudicial to the minor's interest, it is open to the minor on attaining majority, by proper proceedings to set aside the partition so far as he is concerned. After referring to the Privy Council decision, the learned Judge observes at page 558 : "So long therefore as the two adult brothers made a division of the properties which was fair and which was not unequal or prejudicial, to the minor's interest, the division would be binding, and if the minor after attaining majority thinks that it was unfair or prejudicial, it would be open to him to attack the partition by appropriate proceedings. So long as the interests of the minor have not suffered, it is open even to a person other than the natural guardian to represent the minor in the partition; this is recognised in Bhagawati Prasad v. Bhagawati Prasad ILR 35 All. 126. After observing that it is open even to a person other than the natural guardian to represent a minor in a partition, the learned Judge ultimately held that the fact that the father in-law represented the minor as the guardian in the partition proceedings before him does not invalidate the partition as such and the partition cannot be impugned on that ground. Reference may also be made to the decision of the Allahabad High Court of Verma and Yorke, JJ, in Pooran Chand v. Radha Raman AIR 1943 Allahabad 197 where the learned Judges observed that a valid partition may be made during the minority of one or more coparceners and if the partition were unfair or prejudicial to the minor's interest he will be entitled by proper proceedings on attaining majority to set it aside so far as it regards himself. From the decisions cited, it follows that the view of the learned Judge that the partition document will be void because plaintiffs as minors were represented by their mother who was not competent to act as their guardian, is not sound in law. It is not open to the plaintiffs to attack Ext. A2 on this ground. 71. Lastly, we come to the application filed by Mr. Krishna Warrier on behalf of his clients for amending the plaint. That is C. M. P. 5830 of 1955. The affidavit filed in support of this application practically gives the plaint verbatim. After stating that the Trial Court has held against the plaintiffs on the maintainability of the suit as framed, the affidavit states that if the High Court also happens to agree with the Trial Court on the said question, the plaintiffs are willing to amend the plaint asking for a repartition of the entire properties belonging to the whole joint family. It is stated in the affidavit that the entire list of properties are already in the plaint and the members of the entire family are also already parties to the suit and the appeal. It further says that the plaintiffs should not be driven to a separate suit and that in the interests of justice, they should be allowed to amend the plaint and add an alternative prayer requesting for repartition of the entire properties shown in the plaint as well as in the schedule attached to the affidavit and to allot the plaintiff a half of 1/3 share in. the entire properties. 72. This application is opposed by all the parties on record in the appeal represented by counsel. The leading opposition is by Mr. Krishnaswami Ayyengar learned counsel for the second defendant. Mr. Unnikanda Menon, counsel for the 4th defendant and Mr. C. K. Viswanatha Iyer, counsel for the Venkatrama and Thimmayya group support Mr. Krishnaswami Ayyengar. Mr. Unnkanda Menon and Mr. C. K. Viswanatha Iyer further take a special plea that no relief has been asked for against them in the plaint and this is really an attempt by the plaintiff to completely alter the character of his suit which should not be permitted by this court. 73. The question for consideration is as to whether this application for amendment should be allowed at this stage. The plaint was filed on 28-11-1950. 73. The question for consideration is as to whether this application for amendment should be allowed at this stage. The plaint was filed on 28-11-1950. The second defendant has filed his written statement on 25-7-1951 and in the said written statement, objection has been taken to the frame of the suit. It has been specifically pleaded by the second defendant that it is not open to the plaintiff to ask for relief against the properties allotted to him without in any way challenging the general partition under Ext. A2. Notwithstanding this, the plaintiff filed one or two amendment applications for certain other purposes namely, I. A. 1260 of 1952 on 16-6-1952 and another on 10-3-1953 (viz.) I. A. 711 of 1953. The plaintiff is fully aware of the weakness of his case regarding Ext. Al as is clearly seen by his setting up a prior oral agreement in paragraph 3 of the plaint. Notwithstanding the objection raised by the second defendant, the plaintiff chose to go to trial on his original pleading and was prepared to fight out the case in his own way as set out in the plaint. The Trial Court went into this matter and dismissed the suit on 21-11-1953 holding against the plaintiffs on this point. On 16-2-1954, the plaintiff filed an appeal in the High Court still challenging the decision of the Trial Court on the merits. In fact, in the grounds of appeal he has challenged the correctness of the finding of the Trial Court regarding the maintainability of the suit. It was only on 12-3-1955 that the plaintiff has filed this application for amendment. Even there, plaintiff does not state what exactly is the amendment that he desires except vaguely saying in paragraph 9 that if this court also happens to agree with the lower court, the plaintiffs are willing to amend the plaint and ask for a repartition of the entire joint family properties. 74. It must also be stated that even in paragraph 23 of the plaint, the plaintiff has categorically stated that he has impleaded in the suit all the other living members of the family who were parties to the original agreement and to the deed of partition only with the object of avoiding any technical plea as to non joinder of parties. Even in para 7 of the affidavit filed in support of this application, the plaintiff has reiterated his original view that he has asked for partition only regarding the properties in schedule 3 with a view not to disturb the allotment to the other groups. Further even in paragraph 26 of the plaint, there is absolutely no reference to Ext. A2 and this paragraph is not sought to be amended in any way by the plaintiff in this amendment application. Now the plaintiffs want to shift that case leaving alone Ext. Al and take up Ext. A2 as giving them the cause of action for the suit. 75. Mr. Krishna Warrier has very strenuously argued that this application for amendment should be allowed and the case sent back for retrial to enable the plaintiff to reopen the entire partition. After giving our anxious consideration to this request of the plaintiffs, we are not satisfied that this a case in which the plaintiffs should be allowed to amend the plaint at this stage. On the date of the application for amendment namely, 12-3-1955, the suit as now contemplated is clearly barred by S.6, 7 and 8 of the Limitation Act not only as against the first plaintiff, but also as against the second plaintiff. As observed by their Lordships of the Privy Council in the decision reported in Bhagwanji v. Alembic Chemical Works AIR 1948 PC 100 amendment of a plaint introducing a new claim which would have been barred by limitation at the time when the leave was sought, cannot be allowed. 76. In M.B. Sirkar v. Powell & Co. AIR 1956 Cal. 630 the learned Chief Justice and Mr. Justice Sarkar have held that an amendment of a plaint should not be allowed if the amendment results in converting a bad plaint into a good one or to proceed against the party against whom he could not have proceeded if he brought a suit for the first time on the date he asked for the amendment or when the amendment was allowed. The learned Judges further observe that where a plaintiff having had an opportunity of amending his plaint within the period of limitation, has not availed himself of the same but allowed time to run out and has made an application only after valuable right has accrued to the defendant, he will not be heard in support of such application at all. 77. In this case, the objection regarding the maintainability of the suit was taken at the earliest stage and the plaintiff was prepared to proceed with the suit as framed. On 12-3-1955 when the application is filed, the claim of both the plaintiffs to reopen the partition of 1941 is already barred. Further the plaintiffs had an opportunity to amend the plaint within the period of" limitation but they have not chosen to avail themselves of that opportunity. In Akula Kondiah v. Alampalli Balakishtiah 1957 (II) An. WR 559. Mr. Justice Mohammed Ahmed Ansari of the Andhra Pradesh High Court has held that no amendment of a pleading should be allowed which would work injustice in the circumstances, to the other side. In Wadhawa Singh v. Partap Singh AIR 1928 Lah. 933 a Division Bench of the Lahore High Court held that when the plaintiff makes a definite statement that he is not claiming any relief as against certain defendants and proceeding to trial cannot be allowed to amend his plaint resulting in a totally different case. 78. Lastly, we may refer to the two recent decisions of the Supreme Court reported in Leach & Co. Ltd. v. Messrs. Jardine Skinner & Co. AIR 1957 SC 357 and P.H. Patil v. K.S. Patil AIR 1957 SC 363 . In the earlier case, Mr. Justice Venkatarama Ayyar delivering the leading judgment, observes at page 362 as follows: "It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect power of the court to order it, if that is required in the interests of justice. In Charan Das v. Amir Khan 47 Ind. App. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect power of the court to order it, if that is required in the interests of justice. In Charan Das v. Amir Khan 47 Ind. App. 255 the Privy Council observed : 'That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take a away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case'. Vide also Kisan Das v. Rachappa ILR 33 Bom. 644." His Lordship, on the circumstances of that case, came to the conclusion that an amendment of the plaint should be granted. But the observations of the learned Judge quoted above shows that as a rule, the courts would decline to allow amendments if a fresh suit on the amended claim would be barred by limitation on. the date of the application. In our opinion, the circumstances set out above clearly show that this is not a case where we should exercise our discretion in favour of the plaintiffs appellants. 79. The second decision of their Lordships of the Supreme Court reported in P.H. Patil v. K.S. Patil AIR 1957 SC 363 clearly lays down that an amendment working injustice to the other side should not be allowed. As laid down by Batchelor, J, in the decision referred to with approval of their Lordships of the Supreme Court at page 366, in our opinion, the amendment cannot be allowed because the defendants cannot be placed in the same position as if the pleading had been originally correct and the amendment would cause them an injury which could not be compensated in costs. The defendants, especially the other sharers under Ext. A2 have already acquired a good defence and they have also perfected title by adverse possession as against both the plaintiffs and the effect of allowing this amendment will be to deprive them of that defence. In short, in the words of their Lordships, the amendment in this case cannot be allowed without injustice to the respondents. A2 have already acquired a good defence and they have also perfected title by adverse possession as against both the plaintiffs and the effect of allowing this amendment will be to deprive them of that defence. In short, in the words of their Lordships, the amendment in this case cannot be allowed without injustice to the respondents. Further, it will be seen from the dates given earlier that the application for amendment is also very belated. Considering all the aspects, we dismiss C. M. P. 5830 of 1955 for amendment of the plaint with costs. 80. In the result, the appeal fails and is dismissed with costs of the second defendant.