PROVABATI KUNWAR Vs. KAISER KUNWAR

JUDGEMENT

(1.) This is an application for amendment of plaint in a suit for partition. The plaintiff instituted this suit impleading the husband's other co-sharers as parties. Two other defendants--Monmohanmull and Bhowarmull have been impleaded. By a deed of adoption executed by the plaintiff the defendant Monmohanmull appears to be adopted as a son of the plaintiff's husband. Bhanwarmull is the natural father of Monmohanmull. The deed is challenged and it is alleged that it is tainted with fraud. Leave under Clause 12 of the Letters Patent was obtained inasmuch as some of the properties were situate outside the jurisdiction of this court.

(2.) The plaintiff's case as made in the original plaint is that she as the widow of Jitmull an admitted co-owner was entitled to one-sixth share in the joint properties. On that title the instant suit was instituted. Allegations have been made in the plaint of fraud having been committed by the defendant Bhanwarlal by reason of which, it is contended that the deed of adoption has become void. Reference bas also been made of a suit instituted by the co-sharers against herself and the defendants Monmohanmull and Bhanwarmull in the Ajmere Court wherein adoption and the deed was challenged. This Ajmere suit ultimately terminated by the judgment and decree of the Judicial Committee which upheld the adoption. It is to be conceded that no reference to this adoption was made in the plaint, except as it came up in connection with the plea of fraud with reference to the deed of adoption. It is alleged that the deed of adoption was brought about by fraud perpetrated on the plaintiff by the defendant Bhanwarmull, father of Monmohanmull, along with others. While pleading this case of fraud, it has been stated in the plaint that as a condition of adoption the plaintiff was to be in control of the property of her husband and to enjoy the usufruct during her natural life. The deed, which she was made to execute, was different and therefore the deed was alleged not to be binding on her.

(3.) In the written statement filed by the Lodhas, the other co-sharers, the plaintiff's claim to one-sixth share has been admitted and the right of Monmohanmull, the adopted son, has been disputed. Monmohanmull and Bhanwarmull contested the suit inter alia on the plea of res judicata and maintainability by reason of the decision in the Ajmere suit, being Suit No. 5 of 1924. Facts alleged in support of the case of fraud have been, denied.