KAUSHALYA DEVI Vs. BAIJNATH SAYAL

JUDGEMENT

(1.) This appeal by special leave arises from a partition suit filed by Baij Nath against his other coparceners. Baij Nath is the son of Behari Lal and he had four brothers, Kidar Nath, Raghunath Sahai, Jagan Nath and Badri Nath. Kidar Nath was dead at t he time of the suit, and his branch was represented by his five sons Ghansham Lal, Shri Ram, Hari Ram, Tirath Ram and Murari Lal, who were impleaded as defendants 1 to 5 respectively. On the death of Ghansham Lal pending the suit his two minor sons Jai Pal and Chandar Mohan were brought on the record as his legal representatives and their mother Mst. Kaushalay was appointed guardian ad litem. The two minors are the appellants before us. Chuni Lal, the son of Raghunath Sahai was defendant 6, Bal Kishan and Hari Kishan the two sons of Jagan Nath were defendants 7 and 8, and Badri Nath was defendant 9, Baij Nath's case was that the family was undivided and he wanted a partition of his share in the family properties, and so in his plaint he claimed appropriate reliefs in that behalf. The several defendants made out pleas in respect of the claims made by Baij Nath, but for the purpose of this appeal it is unnecessary to refer to the said pleas. This suit was instituted on June 11, 1941.

(2.) It appears that by consent of parties a preliminary decree was drawn by the trial court on October 30, 1941, but the validity of this decree was successfully challenged by an appeal to the Lahore High Court. It was held by the High Court that all parties had not joined in the compromise and so the preliminary decree could not be sustained. In the result the said decree was set aside and the case was remanded for trial.

(3.) It further appears that after remand parties again came together and by consent requested the court to pass a preliminary decree once again. This was done on October 15, 1943. This preliminary decree specified the shares of the respective parties and left three outstanding issues to be determined by Chuni Lal, defendant 6, who it was agreed should be appointed Commissioner in that behalf. Pursuant to this preliminary decree the Commissioner submitted his interim report on November 19, 1943, and his final report on November 19, 1943, and his final report on November 29, 1943. On receipt of the reports the trial court gave time to the parties to consider the said report which had been explained to them. Parties wanted time and so the case was adjourned. Since the property in dispute was valuable and the parties were unable to make up their minds about the said reports further time was granted to them by the court to consider the matter. Ultimately, when parties did not appear to come to any settlement about the reports the case was adjourned to December 17, 1943, for objections to be filed by the parties. Tirath Ram, defendant 4 alone filed objections; nobody else did. The said objections were considered by the court in the light of the evidence which had been led and a final decree was drawn on June 21, 1944.