GIRIJANANDINI DEVI Vs. BIJENDRA NARAIN CHOUDHARY

JUDGEMENT

(1.) This appeal with certificate under Art. 133 (1) (a) of the Constitution arises out of suit No. 17 of 1942 on the file of Subordinate Judge, Purnea filed by Bijendra Narain son of Ishwari Narain against Mode Narain, Hari Narain and Rajballav Narain sons of Bidya Narain and others for a decree for partition and separate possession of a half share in the properties described in Schedules A, B, and C to the plaint. The suit was decreed by the Trial Court and in appeal to the High Court of Judicature at Patna the decree was confirmed with a s1ight modification. The defendants in the suit have appealed to this Court.

(2.) One Mankishun had four sons: Talebar, Indra Narain, Chandra Narain and Shyam Narain. Talebar had two sons Hanuman and Raghu Nandan. Hanuman died leaving him surviving no lineal descendant and Raghu Nandan adopted Udit Narain - grandson of his uncle Shyam Narain. In 1923 Udit Narain and the sons of Shyam Narain instituted suit No. 27 of 1923 in the Court of the Subordinate Judge, Purnea, impleading as defendants the descendants of Indra Narain and Chandra Narain as parties thereto, for partition and separate possession of a half share in the properties of the joint family. Bijendra Narain son of Ishwari Narain who was at the date of the suit a minor was impleaded as the 8th defendant, by his guardian-adlitem. Bidya Narain his uncle, was impleaded as the 4th defendant. Mode Narain, Hari Narain and Rajballav Narain sons of Bidya Narain, were impleaded as defendants 5, 6 and 7. A preliminary decree was passed in the suit on July, 1924 by consent of parties. By Para. (a) of the decree the adoption of Udit Narain as a son by Raghu Nandan was admitted and it was agreed that Udit Narain was entitled in the properly in suit to a fourth share as adopted son of Raghu Nandan, and a twelfth share as heir of his natural father Shyam Narain. The decree further provided :-

(3.) Bijendra Narain attained the age of majority in 1934, and on July 10, 1942 commenced the present action for partition of a half share in the properties which were in the possession of Bidya Narain, his sons and grandsons alleging that he (Bijendra Narain) came to learn in 1938 that talking advantage of his minority and inexperience his uncle Bidya Narain and the sons of Bidya Narain had purchased in their own names many properties with the aid of joint family funds and had acquired certain other properties in the name of Bashisht Narain - (twenty-fourth defendant in the suit) who was daughter's son of Bidya Narain - that in September, 1941 certain respectable residents of the village consented to lend their good offices to settle the dispute and to act as panchas, that at the meeting before the panchas, Bidya Narain and his sons admitted that the properties held by them including the properties acquired in their names and of Bashisht Narain were joint family estates, but they later demurred to give to the plaintiff a separate share, and hence the suit.