BANKEY LAL Vs. NARENDRA SINGH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for partition. The appeal came up before a learned single Judge who has referred it to a Bench for decision because of the importance of the question of law that arises for determination in the case.

(2.) The facts giving rise to the appeal, very briefly stated, were these. One Lachhman Singh married twice and the two wives were named Savitri and Sarwati; they are both alive. He also had a son Narendra Singh who was the plaintiff in the suit. Narendra Singh was born sometime roundabout the year 1940 -- the exact year of his birth is however not given in the pleadings of the parties to this case. On the aforesaid composition of the family, Narendra Singh claimed one-fourth share in the family properties by right of his having an interest in the properties by being born into this family. In the year 1936, Lachhman Singh made an application under Section 4 of the Encumbered Estates Act, he having been encumbered with debts and his property also having been encumbered with his private debts. The proceedings under the Encumbered Estates Act continued in accordance with the provisions of that Act and a decree under Section 14 of that Act was made by the Special Judge and subsequent to such decree being passed, the decree was transmitted to the Collector for the purposes of liquidation in accordance with the provisions of the Encumbered Estates Act. It appears that the suit, out of which this appeal has arisen, was filed by Narendra Singh on 25-4-1944, that is to say long after the application under Section 4, Encumbered Estates Act, had been made by his father Lachhman Singh. It also appears that the suit was filed after the decree contemplated by Section 14 of the Encumbered Estates Act had been passed by the Special Judge and sent to the Collector for liquidation purposes. The case of Narendra Singh was a simple case of an after-born son claiming his share in the family property by virtue of his birth.

(3.) Several defences were raised; but the most material defence was that the plaintiff could claim no partition in the present case, because the property in respect of which he sought partition had been made the subject of proceedings under the Encumbered Estates Act and had in a sense "vested" in the Collector for the purposes of liquidating the debts which had been incurred by Lachhman Singh before the birth of the plaintiff. It was further contended on behalf of the defence that the decree which had been pronounced under Section 14, Encumbered Estates Act, was a bar to the present suit.