SHEODHAR PRASAD SINGH Vs. JAGDHAR PRASAD SINGH

JUDGEMENT

(1.) This appeal by defendant No. 2 is directed against the decision of an Additional Subordinate Judge of Patna who decreed a suit for partition or one-fourth share in the suit properties, after reversing the decision of a Munsif of Patna dismissing the suit. The parties are some of the descendants of one Bihari Singh, the second son of Chuni Singh who died leaving behind him also another son named Narayan. These two brothers separated from each other in all respects long ago. Bihari died leaving three sons, namely Sheo Prasad, Mahabir (defendant No. 1) and Raghubir. They also separated from one another in all respects by 1919. Raghubir died in 1920, leaving behind him a widow who came into possession of her husband's estate. This widow died; and Sheo Prasad took possession of Raghubir's estate. Therefore, Mahabir and his two sons, namely Sheodhar (defendant No. 2) and Jagdhar (plaintiff No. 1) instituted a suit in 1932, for the declaration of title to one-half of the estate of Raghubir and for partition of the same, against Sheo Prasad and his descendants. A preliminary decree was passed by the trial Court and upheld by the appellate Court. Then there was a compromise (Ext. 3) on the 2nd May, 1939, by which the plaintiffs of that suit got one-half of the estate of Raghubir; and it was agreed that each of the three plaintiffs would get equal share in this part of the estate, that is, Mahabir, Sheodhar and Jagdhar would each have aqual share in half the estate of Raghubir. Another relevant term of the compromise was that, out of the ancestral property, that is the-property that Mahabir had got after partition amongst the three sons of Bihari, one-half was given to Mahabir and the remaining half to Sheodhar. On the 18th January, 1951, Mahabir executed a registered deed of gift in favour of Sheodhar, in respect of all the family properties. This gift was the cause of action for the present suit which was instituted on the 9th February, 1952.

(2.) Defendant No. 3 is the son of Sheodhar; defendant No. 4 is the wife of Mahabir; and plaintiffs 2 and 3 are the sons of Jagdhar.

(3.) There was a dispute between the parties regarding the legitimacy of Jagdhar. The case of defendant No. 2 who contested the suit was that Muni Kuer (defendant No. 4) was not the legally married wife of Mahabir, and, therefore, Jagdhar, who is admittedly the son of Mahabir through Muni Kuer, was illegitimate. On the other hand, the case of the plaintiffs was that Jagdhar (plaintiff No. 1) was a legitimate son of Mahabir, inasmuch as his mother Muni Kuer was legally wedded to Mahabir, and, therefore, he was entitled to one-fourth share of the suit properties, made up of half the estate of Raghubir plus the ancestral properties which Mahabir got by partition amongst his brothers. The plaintiffs challenged the aforesaid terms of compromise in the title suit of 1932 on the ground that Sheodhar, who was a pleader's clerk, managed to insert those terms during his minority. It was further alleged that the gift had been executed by Mahabir at the age of 80 years under the undue influence of and fraud practised upon him by Sheodhar. The plaintiffs therefore prayed for declaration of titla to and recovery of their possession of their share after partition with mesne profits and also for declaration that the deed of gift was not binding on them. Defendant No. 1 filed a written statement supporting the case of the plaintiffs, but he did not take any further interest in the litigation ft may be mentioned here incidentally that defendant Mahabir died during the pendency of this second appeal in 1957.