MANU BISWAL Vs. LATA BISWALANI

JUDGEMENT

(1.) DEFENDANTS 1 to 4 are the appellants. The suit out of which this appeal arises was a suit for partition of joint family properties.

(2.) THE parties are members of a family governed by Hindu Mitakshara Law. One bhagaban Biswal had two sons Cheru and defendant No. 1 Manu. In Cheru's branch are his son defendant No. 5 Debadhi; plaintiff No. 1 Lata, wife of Debadhi, and plaintiff No. 2 Jayananda and plaintiff No. 3 Gayadhar who are the sons of debidhi. In Manu's (defendant No. 1) branch are defendant No. 1 Manu himself; manu's son defendant No. 3 Jugal and defendant No. 4 Gurucharan who are sons of defendant 2 Dolgobinda. The plaintiffs claim partition by metes and bounds in respect of A and B Sen. lands into two equal shares and allotment of one share to the plaintiffs and pro forma defendant No. 5. It is said that defendant No. 5 debadhi had previously in 1959 filed a partition suit being T. S. No. 3 of 1959 against defendant No. 1 Manu Biswal in the Court of Munsif, Bonaigarh claiming one half share in the suit properties. In the said suit Defendant No. 1 Manu Biswal had taken a plea that defendant No. 5 Debadhi had been adopted by his (Debadhi's) maternal grandfather Mahan Sahu. The plaintiffs' case is that defendant No. 1 Manu Biswal in the previous partition suit got defendant No. 5 debadhi intoxicated and fraudulently made him enter into a compromise giving up his right to the suit properties; the said compromise was thus fraudulently obtained and was against the interest of the plaintiffs, and therefore not binding on the plaintiffs. The plaintiffs filed the present suit for partition.

(3.) IN defence defendants 1 and 2 in their written statement denied that the parties are of a Hindu joint family. Their case is this; alter the death of Cheru (defendant no. 5's father), defendant No. 5 Debadhi had been duly taken in adoption by his maternal grand-father Mohan Sahu as early as November 18, 1919 on which date a document of adoption is also said to have been executed. The natural mother of debadhi took a second husband. Debadhi ceased to be a member of the family. The suit properties are self-acquired properties of defendant No. 1 Manu Biswal; he is in possession of the same to the exclusion of the plaintiffs and defendant No. 5 Debadhi. As regards the compromise in T. S. No. 3 of 1959 the defence case is that the plea taken therein by defendant No. 1 Manu Biswal, namely that Debadhi had been adopted by Mohan Sahu, was quite correct and Debadhi is the adopted son of Mohan Sahu; the said suit ended in a compromise through the intervention of respectable gentlemen of the locality and a sum of Rs. 800/- was paid to debadhi by way of family settlement and to avoid further troubles; the compromise is valid and binding on the plaintiffs as they all benefited by the compromise and they cannot challenge the same.