Narayan, J.:— This appeal arises out of a suit for partition. The plaintiffs sought the partition of their eight annas proprietary share in village Tilakpura, bearing tauzi no. 1053, this proprietary share having been held by them since the year 1874. It was stated by the plaintiffs that the lands of the village are still joint and that the proprietors had been cultivating the ‘bakasht’ lands according to convenience in cultivation and that they had been making collections of rent according to their respective shares.

2. The suit was contested by son of the defendants on two pleas; firstly, that the suit was bad on account of misjoinder and nonjoinder of parties, and, secondly, that all the lands of the ‘mauza’ had been divided between the different co-sharers who were separately cultivating the lands allotted to them. The learned Subordinate Judge decreed the suit after repelling the contentions put forward by the defendants and the defendants I have, therefore, preferred this first appeal.

3. The defendants are the descendants of two brothers named Jagdeo Missir and Baldeo I Missir who had jointly purchased this village. On 25-3-1873 the said Baldeo Missir and Jagdeo Missir executed a deed of partition by which they divided the ‘mauza and two blocks were made out of it. The western block was allotted to Jagdeo and the eastern block to Baldeo. Soon after this partition, that is in the year 1874, Jagdeo and Baldeo transferred to the plaintiffs by two separate sale-deeds four annas out of their separate eight annas share, and the recitals in these two sale-deeds go to show that they were in separate possession of the block allotted to them under the deed of partition. Though the partition of the year 1873 is not mentioned in the plaint and the plaintiffs appear to have framed their plaint in a manner which indicates that they were claiming partition of eight annas share in the entire ‘tauzi’, the partition of the year 1873 was not disputed by the plaintiffs at the trial, and when it was contended before the learned Subordinate Judge that this suit was not maintainable because the plaintiffs had, instead of claiming partition of the two ‘pattis’, separately, brought one partition suit for the entire ‘mauza’, the learned Subordinate Judge disposed of this contention by making the following observation:

“The survey record of ‘Khewat’ nos. 1/1 and 1/2 having been prepared in accordance with the partition deed (Ext F) and the plaintiffs having admittedly purchased four annas share in each ‘patti’ by the two ‘kebalas’ (Exts. 2 & 2(a)) and there being no dispute between the parties on these points, it matters little whether the plaintiffs state these facts in detail in the plaint or whether they claim that they have purchased eight annas share in the whole village for which they are entitled to get a separate ‘takhta’ of their eight annas share.”

4. The learned Advocate-General, who has appeared on behalf of the plaintiffs-respondents before us, has also conceded that the plaintiffs will I have the partition of their four annas ‘pokhta’ share, equivalent to eight annas ‘kham’ share,’ in each of the two blocks instead of having one partition of eight annas share in the entire ‘tauzi’. Separate ‘khewats’ and ‘khatians’ have been prepared with regard to the ‘pattis’ which had been formed under the partition deed, and it will appear from a perusal of the entries in the survey record-of-rights that the lands of one ‘patti’ have no connection with the lands of the ether, ‘patti’ ‘Khewat’ no. 1/1 is the ‘khewat’ with regard to the ‘patti’ of Jagdeo H Missir and ‘khewat’ no. 1/2 is the ‘khewat’ B with regard to the ‘patti’ of Baldeo Missir. There is however, a ‘shamilat ‘khewat’ (no. 1/3) of these two ‘khewats’, and the lands of this ‘shamilat khewat’ will have to be portioned in this partition suit if the suit can be decreed.

5. It is, thus, an incontrovertible position in this case that if the plaintiffs will have any decree, that will be a decree for the partition of their eight annas share in each of the two ‘pattis’ separately which have been recorded in the survey as ‘khewats’ nos. 1/1 and 1/2 and also for the partition of their eight annas share in the ‘shamilat patti’ which has been recorded in the survey as ‘khewat’ no. 1/3. Sir Sultan Ahmad appearing for the defendants-appellants has, however, strenuously contended that this suit is liable to be dismissed because the plaintiffs have not prayed for the partition of the two ‘pattis’ separately. He has further contended that the suit is liable to be dismissed also on the ground of non-joinder of one Rameshwar who belongs to the family of the defendant Sadhusant Missir. These are the two points which arise for determination in this appeal, and I will dispose of the second point first which, in my opinion, is the only substantial point urged on behalf of the appellants before us.

6. The plea of mis-joinder was not pressed before us, and the plea of non-joinder is now confined to one minor named Rameshwar who, as would appear from the genealogical table attached to the judgment, is the son of one Tarkeshwar, deceased, and the nephew of Nandkeshwar and Rajkeshwar who had been impleaded in this action as defendant 9 and defendant 10, respectively. Tarkeshwar, Nandkeshwar and Rajkeshwar are the sons of Sheodhayan who is the first cousin of defendants 11 and 12, Sadhusant Missir and Nageshwar Missir. Sadhusant Missir is the only defendant examined in this case, and he has stated in his cross-examination that Tarkeshwar Rajkeshwar, Nandkeshwar and Rameshwar have all been joint with him and that he is the ‘karta’ of their joint family. The contention of Sir Sultan Ahmad has been that because Rajkeshwar and Nandkeshwar have been impleaded as parties in this case, this cannot be regarded as a suit instituted as against Sadhusant in his representative capacity as ‘karta’. In other words, the learned Counsel means that because the other members of Sadhusant's family have been added as defendants in this suit Sadhusant cannot be deemed to have been sued in his capacity as the ‘karta’ of his joint family.

7. It is needless to say that property belonging to a joint family is ordinarily managed by the senior member, for the time being, of the family and that as long as the members of the family remain undivided the senior member of the family is entitled to manage the family properties. Consequently, the manager of a joint Hindu family can sue or can be sued as representing the family in respect of joint family property, and a decree passed against him in such a suit would bind all other members of the family, if so far as the minors are concerned, he has acted in their interest and so far as the adult members are concerned, he has acted with their consent, express or implied. In several Privy Council decisions it has been pointed out that a decree passed against the ‘karta’ of the joint family binds the infants who are the members of the joint family if the ‘Karta’ has been acting in the interest of the minors.

8. This position of law could not be disputed and has not been disputed before us, and, as I have already pointed out, it is the admission of Sadhusant Missir, who is the only defendant examined in the case, that the minor Rameshwar is an infant member of the joint family of which he is the ‘karta’. I am inclined to agree with Sir Sultan Ahmad that the mere admission of Sadhusant Missir to the effect that he is the ‘karta’ of the joint family of which Rameshwar is an infant member should not lead us to the conclusion that for the purposes of this litigation Sadhusant should be taken to represent the interest of Rameshwar or of his entire joint family. But, the question is what will be the position if the plaintiffs have actually sued Sadhusant in his capacity as the representative of the family. From a perusal of the plaint it will appear that some of the defendants have been sued as the “kartas” or the “heads of their respective joint families.” Paragraph 3 of the plaint distinctly states that

“the defendants are the ‘kartas’ and heads of their respective joint families and they have been made parties to this suit in that capacity.”

9. It could not but be conceded by the learned Counsel for the appellants that in view of such averments as made in the plaint the defendant Sadhusant must be taken to have been sued in his capacity as the ‘karta’ or the manager of the joint family. But the learned Counsel submitted that this averment is of no consequence when the other members of Sadhusant's family have been impleaded in the suit as defendants along with him. The question, therefore, narrows down to this as to whether though Sadhusant has been sued in his representative capacity, the joining of some other members of his family as defendants in this suit would render ineffective the assertions made in the plaint that he is being sued in his representative capacity is the ‘karta’ of his joint family. The question of representation in every case is essentially or entirely one of fact, and what requires our determination is as to whether the joining of some other members of the family as defendants in the suit detracts in any way from the value of the statement made in the plaint which clearly indicates that Sadhusant and others who are the ‘kartas’ of their respective families have been sued in the capacity of a manager.

10. In my opinion, it is difficult to uphold in this case the contention, that Sadhusant should not be deemed to have been sued in his representative capacity and should not be deemed to represent the interest of Rameshwar even though the plaint indicates that he is being sued in his representative capacity, because some other members of his family have been impleaded as defendants. The answer is, in my opinion, two fold; firstly, the joining of the other members of the family can; be treated as a pure surplusage, and, secondly, the law, so far as the adult members are concerned, is that if the ‘karta’ of the joint family is dealing with the joint family property in any way, it has to be shown that the adult members had consented to his acts, the consent being express or implied. It is possible that so far as the adult members are concerned the plaintiffs thought of impleading them, in spite of the fact that they had stated in the plaint that Sadhusant and some of the other defendants were being sued in their representative capacity to obviata all possible objections.

11. At any rate, the impleading of the other members of the family as defendants in the action should be taken to be a mere surplusage, when it is not only the admitted position in this case that Sadhusant is the ‘karta’ of his family but the plaintiffs have distinctly stated in the plaint that some of the defendants (certainly including Sadhusant) are being sued in their representative capacity. All the connected circumstances are to be considered together while determining the question as to whether in this litigation Sadhusant can be deemed to have been sued in his representative capacity or not. And the question cannot be, decided without any regard to the averments made in the plaint. The learned Counsel for the appellants has referred to certain decisions, but those decisions do not seem to apply to the facts of this present case.

12. In —‘Sital Prasad Ray v. Asho Singh*’, AIR 1922 Pat 651 (A) the real question was whether a decree could be passed without affecting the rights of absent parties, and their Lordships laid down the standard that failure to add one or more such persons should not have the effect of defeating the suit if the Court, in their absence, can deal with the matters in controversy so far as regards the rights and interests of the parties actually before it are concerned. Certainly, if the absent persons are necessary parties to the suit in the sense that no decree, can be passed without affecting their rights, the suit cannot proceed in their absence and should be dismissed. The provisions of law which came up for consideration in this case were O. 1, R. 9, and O. 34, R. 1 of the CPC.

13. In —‘Prahlad Das v. Dasrathi Satpathi’, AIR 1940 Pat 117 (B) the sons of a Hindu father had been impleaded as defendants, but the Court had refused to pass a decree against the sons and had passed a decree against the father only. In such circumstances, it was held that the decree cannot be said to have been obtained against the father both in his individual capacity and in his capacity as the representative of his sons. Such a decree passed against the father alone could not be executed against the sons,

“not because they were not under a pious obligation to pay the debt of their father but because the procedure of enforcing their liability having been adopted the Court had refused to enforce it”.

14. In — ‘Ramchandar Singh v. Raghopati’, AIR 1945 Pat 189 (C) the question was whether the decree-holder was a necessary party in a suit under O. 21, R. 63 of the CPC. It was held that such a suit at the instance of the claimant without impleading the decree-holder was not maintainable. In —‘Deonarain v. Khatoon’, AIR 1949 Pat 401 (D) a decree had been passed against the father, his five sons and three grandsons but in the execution proceeding two of the sons and the grandsons were not made parties; it was held that the father did not represent the sons and grandsons who were not made parties to the execution proceeding and that their share in the properties sold in execution of the decree did not pass. None of these cases was a suit for partition, and their facts bear no resemblance to the facts of the case before us. For reasons which appear to be quite strong the sons were not held to be liable in ‘AIR 1940 Pat 117 (B)’ and AIR 1949 Pat. 401 (D).

15. The learned Counsel for the appellants also cited a recent decision of this Court in — ‘Awadh Bihari Prasad v. Jhaman Mahton’, AIR 1953 Pat 324 in which the observation, of Khaja Mohammad Noor, J. in ‘AIR 1940 Pat 117 (B)’ to the effect that “when sons and grandsons are parties to a suit, the question of their father representing them cannot possibly arise” was referred to with approval. The case of ‘AIR 1949 Pat 401 (D)’ was also referred to with approval in this Supreme Court matter. The facts of these two cases have already been, indicated by me, and the observation of Khaja Mohammad Noor, J. referred to in the judgment of Ramaswami, J. must be taken to be an observation made under the particular facts and circumstances of the case. In the Supreme Court Appeal the question was a question of abatement, and the real position was, I say with, respect, very succinctly explained by my learned brother Das, J. in the following terms:

“In the case before us the fundamental fact to be remembered is that the present petitioner, who was the plaintiff, wanted to get rid of a mortgage decree obtained by several, persons, and the petitioner brought all those-persons into the record and did not sue anyone of them as representing the joint family.”

16. It was in such circumstances that it was held by their Lordships that it was necessary to bring on the record the heirs of the two respondents who had died during the pendency of the appeal. This decision can, in my opinion, be of no help to us in deciding the point which precisely arises in this litigation. Here, apart from other tilings Sadhusant must be, deemed to have been sued in this representative capacity. The first contention urged by Sir Sultan Ahmad must, therefore, fail. The learned Counsel submitted that because the plaintiffs did not ask for the partition of the two ‘pattis’, which had been carved out as the result of the partition deed executed in the year 1873, the present suit is bound to fail. It is true that the plaintiffs have not stated in the plaint that there had been a partition in the year 1873 by which two pattis had been carved out, but it is also true that the plaintiffs did not at the trial press their claim for a partition of their entire tauzi. This is clear from the discussion by the learned Subordinate Judge under issue no. 1.

17. In this connection it is necessary to state at the, very outset that neither in the evidence nor in the written statement the defendants I have stated in so many words that subsequent to the partition in 1873 or subsequent to the purchase by the plaintiffs of eight annas share there was another partition of the ‘mauza’. When no such claim has been made, in the defence presented by the defendants no amount of evidence could be allowed to be adduced with regard to it. As was pointed out by the Judicial Committee in —‘Siddik Mohammad Shah v. Mt. Saran’, AIR 1930 PC 57 (1) (F), no amount of evidence can be looked into upon a plea which was never put forward. In — ‘Hem Chand v. Pearey Lal’, AIR 1942 PC 64 (G), their Lordships observed that the procedure adopted by the trial Court of allowing the parties to adduce evidence on points not raised in the pleadings or issues was irregular and should not have been allowed without amending the pleadings and raising the necessary issues.

18. The learned Subordinate Judge has, after a close examination of the evidence, come to the conclusion that there has been no real partition of the ‘bakasht’ lands. It is very important to note that the defendants admitted at the trial that they had been paying rent to the plaintiffs with regard to the ‘bakasht’ lands, and the learned Subordinate Judge was perfectly justified in coming to the conclusion that what they have been paying to the plaintiffs with regard to the ‘bakasht’ lands is really the compensation for the excess lands in their cultivation. As a matter of fact, it is impossible to accept the contention of the defendants that though there are about 212 bighas of ‘bakasht’ land, the plaintiffs by virtue of the partition have been given only 16 annas out of them. Such an allotment would be absurd if really there was a partition of the ‘bakasht’ lands by metes and bounds. No explanation worth the name could be offered for this unjust and inequitable distribution. We And ourselves in perfect agreement with the view of the learned Subordinate Judge that for the excess lands cultivated by the defendants they have been paying compensation to the plaintiffs.

19. The learned Subordinate Judge has even pointed out, after a consideration of the documentary evidence and, especially, the receipts, the receipt books and other collection papers filed by the plaintiffs, that they have been realising their share of rent from all the tenants of the village, A ‘mokarrari’ document had been produced which indicated that the ‘bakasht’ lands had remained joint, and this was a document taken by one of the defendants Shamdut Missir. The documentary evidence and especially the circumstance that the defendants have been paying compensation to the plaintiffs would irresistibly lead one to the conclusion that there has been no partition of the ‘bakasht’ lands. The plaintiffs have, unfortunately, been allowed to remain in possession of 16 bighas of land only, and this must be by way of an arrangement which is something else other than a regular partition.

20. Lands cannot be allowed to remain uncultivated, and even before a partition is concluded the landlords do make arrangements for the proper cultivation of the lands; and somehow or other in this case the plaintiffs were allowed to remain in possession of 16 bighas of ‘bakasht’ land only. The mere fact that the plaintiffs made no mention of the partition of 1873 in the plaint cannot defeat their claim for partition in this litigation when the facts and the circumstances show that there are three ‘pattis’ in which the plaintiffs have got interest and when with regard to the share claimed by them there has been no partition by metes and bounds up till now. The Supreme Court in —‘Firm Sriniwas Ram Kumar v. Mahabir Prasad’, AIR 1951 SC 177 (H), observed as follows:

“A plaintiff may rely upon different rights alternatively and there is nothing in the Code of Civil Procedure to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon, or had an opportunity to meet.

But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit.”

21. Here, what appears from the evidence is that on account of the conduct of these defendants the plaintiffs were in some doubt and they could not act strictly on the basis of the partition of 1873. As already pointed out, the plaintiffs were allowed to realise their share of rent from the tenants in both the ‘pattis’. Fortunately, the plaintiffs have not pressed for the partition of the entire ‘tauzi’, and the learned Advocate-General was fair enough to concede that the plaintiffs should have a decree for the partition of the two ‘pattis’ separately. When the case came to trial the plaintiffs at once admitted that they were entitled to the partition of the two ‘pattis’ separately, and the defendants never pleaded or stated that after the partition of 1873 there had been another regular partition. On the facts as now admitted by the defendants and on the facts found the plaintiffs are obviously entitled to a decree for the partition of the two ‘pattis’ and also of the ‘shamilat’ patti, I see no reason why the plaintiffs should be driven to another suit for the partition of the two pattis, ‘khewats’ nos. 1/1 and 1/2, and of the ‘shamilat patti khewat’ no. 1/3.

22. Section 99 of the CPC, lays down that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the, Court. Here, the village and ‘tauzi’ number are one, and admittedly there is still one ‘shamilat khewat’ which has to be partitioned. With regard to ‘khewats’ nos. 1/1 and 1/2 the finding must be that their lands have not been partitioned. In such circumstances, one suit for the partition of the entire ‘tauzi’ or the entire village cannot, in my opinion, be regarded as not maintainable. At any rate, in view of the provisions of S. 99 we are not able to dismiss this suit on the ground of misjoinder of the cause of action.

23. The decree of the learned Subordinate Judge will, therefore, be modified to this extent that the plaintiffs will have a partition of their eight annas share in each of the two ‘pattis’ recorded in the survey as ‘khewats’ nos. 1/1 and 1/2 and also in the ‘shamilat’ ‘patti’ recorded in the survey as ‘khewat’ no. 1/3. The learned Advocate-General has conceded that three ‘bighas’ of land which have been acquired by the defendants under sale-deeds, exhibit H series, executed in the year 1908 would be excluded from partition. The defendants have not been able to prove the acquisition of other raiyati lands, and according to the Full Bench decision of this Court in — ‘U.P.N Sahi v. Dulhin I. Kuer*’, AIR 1950 Pat 115 (I), they are entitled as Co-sharer landlords to retain in their possession as their purchased lands the lands purchased by them in the year 1908 in spite of the partition which will be effected between them and their cosharers. The three ‘bighas’ of land covered by ‘kebala’ exhibit H series will, therefore, be excluded from partition.

24. In the result, therefore, this appeal is allowed in “part, and the decree of the learned Subordinate Judge will be modified in the manner indicated above. The parties will bear their own costs throughout, and the costs of the final decree will be borne by the parties in proportion to their shares.

25. Das, J.:— I agree, and wish to add a few words on the question whether the nonjoinder of Rameshwar, minor son of Tarkeshwar, deceased, is a defect fatal to the suit. It is to be remembered that a representative suit is not confined to suits brought under O. 1, R. 8 of the CPC. Where under the substantive law certain persons are entitled by virtue of their position to sue or be sued on behalf of themselves and others, e.g, the Manager of a joint Hindu family, a suit brought by or against them is also a representative suit.

26. The question that is mooted before us is what is the effect when besides the Manager of a joint Hindu family who represents other members of the joint family, some of the other members of the family but not all of them ares sued as defendants. The contention of Dr. Sultan Ahmad is that the effect is that the doctrine of representation is no longer available in such a suit. In my opinion, this contention is not correct. Whether the Manager of the joint Hindu family represents other members of the joint family, who have not been made parties to the suit, is a matter of both Hindu law and procedural law, and will depend on the facts and circumstances of each case, such as the nature and subject matter of the suit, pleadings, averments as to the capacity in which the defendants are sued etc., and no inflexible rule of law can be laid down. The plaintiff, who is a stranger to the joint family, may not know the internal arrangements of the joint family, nor the existence of all the members including infant members of the joint family. In such circumstances he may sue the ‘karta’ and may even implead some of the adult members of the family, stating clearly that he is suing the defendants not in their individual capacity but as representing the joint family. He may implead some of the adult members by way of abundant caution, because he may not know the internal arrangement in the different branches of the family.

27. In the case before us that is what happened. The plaintiffs clearly said that they were suing the defendants not as individual members of the family but as representing the joint family. The evidence in the record showed that the ‘karta’ of the joint family was Sadhusant, and Rameshwar was an infant member of the family whose father was dead. In these circumstances, the mere fact that some of the adult members of the family besides Sadhu Sant were made party defendants will not take away the representative capacity of Sadhu Sant.

28. No question of substitution in place of a deceased member of the family or abatement arises in this case; nor is there any question of the executing Court going behind the decree and enforcing a decree against some members of the joint family against whom the suit was dismissed. The decisions which were cited in support of the contention of Dr. Sultan Ahmad related to facts which were totally different from the facts of this case; in some of those cases the question of substitution or abatement arose when one of the adult members of the joint family, who was a party in the litigation, died and no substitution was made. Those cases were decided on the principle that there could not be two inconsistent decrees. In the other cases relied on by Dr. Sultan Ahmad, the question arose in execution where a decree had been passed against the Manager alone and the suit had been dismissed against the other members of the family. It is plain that in such a case the doctrine of representation is no longer available because the Court has already determined that the liability was the liability of the Manager alone and not of the other members of the family. None of the decisions relied on lay down such a broad proposition as is contended for by Dr. Sultan Ahmad, that in every case where some members of the joint family besides the Manager are added as parties, the Manager ceases to represent the joint family in that litigation. I do not think that such a proposition is supported either by the case law on the subject or the principles of Hindu Law or procedural law as embodied in the Code of Civil Procedure. Whether the Manager of a joint Hindu family represents the joint family in a particular litigation will depend on the facts and circumstances of that case, and that, I think, is the only true principle that can be laid down.

A/V.R.B

29. Appeal partly allowed.