KAMESHWARI DEVI ALIAS KALESHWARI DEVI Vs. BARHANI

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the Patna High court, made on 25/2/1986 in appeal from Appellate Decree No. 17 of 1977.

(2.) The admitted facts are that one Hulash Kumhar, the common ancestor had two. sons, Jitram Kumhar and Gudar Kumhar. The appellants represent the branch of Jetram Kumhar and the respondent represented the branch of Gudar Kumhar. Bigan was the father of the appellant and his mother was Anandi Kauri. Bigan died in 1957 leaving behind him the original plaintiff, arujun Mahato and his sisters. Defendants 8-11 and brothers Defendants 13 and 14. One Bajani Kumari, Defendant 1 in the present suit, representing the branch of Gudar Kumhar, filed Suit No. 178 of 1957 for partition impleading Bigan and five others. The suit for partition was filed on 20/9/1957 and Bigan died before summons were served on him on 27/9/1957. Subsequently, his widow, Anandi Kauri was brought on record as Defendant 1. The appellant was impleaded therein as 4th defendant. Summons, ultimately, were taken to his mother as natural guardian. Since she refused to receive the notice, an application was taken out to appoint a court guardian, which accordingly came to be ordered. The court guardian represented the appellant in OS No. 178 of 1957. The suit was decreed confirming grant of 1/42nd share of each of the branches of Bigan. The appellant, after attaining majority, filed the present suit for setting aside the earlier partition decree and for fresh partition contending that the decree in Suit No. 178 of 1957 did not bind him. The trial court granted a preliminary decree. But, on appeal, the District Judge reversed that decree and dismissed the suit and in the second appeal the High court confirmed the same. Thus, this appeal by special leave.

(3.) The only controversy in this appeal is whether the appellant is bound by the decree passed in Suit No. 178 of 1957. The findings recorded by all the courts are that there was no written statement filed on behalf of the appellant in Suit No. 178 of 1957. The thrust of the case set up by the appellant is that the Phatbandi, Ex. C, does not bind him and the parties and the interest of the estate of the appellant as a minor was not properly safeguarded in that behalf in Suit No. 178 of 1957. It is an undisputed fact that Phatbandi was a registered document of the year 1920 by which time even the plaintiff was not born. It is the common case of the parties of the branch of Bigan in Suit No. 178 of 1957 that it was a nominal document with a view to defraud the creditors and was not acted upon. The controversy was gone into up to the High court in the earlier litigation in detail and ultimately the finding recorded was that it was a valid document in the nature of a partition and was acted upon. That finding had become final. The question is whether the estate of the minor was properly represented in Suit No. 178 of 1957