HARISHANKER PRASAD Vs. BISHWANATH PRASAD

JUDGEMENT

(1.) This appeal is directed against the order of the second additional Court of the Subordinate Judge, Muzaffarpur, in Title Suit No. 33/1 of 1956/1960 by which he recorded a compromise.

(2.) Sakhichand Sahu, the common ancestor ot the parties had five sons, Jagarnath, Raghunandan. Ramkhal, Dwarka and Badri Narain. Of them, Jagarnath and Dwarka are dead leaving no issue. Sakhichand Sahu had acquired large properties during his life and he executed a deed of endowment on the 3rd of April, 1900 in respect of some properties in favour of the deities Sri Ram Lachhuman Jankiji, Sri Radha Krishnaji and Shiva Girjaji and others. In that deed he stipulated that during his lifetime he would act as manager and Shebait and after him his eldest son Jagarnath Prasad Sahu would be the Shebait and work in consultation with his fourth son Dwarka Prasad Sahu. He further provided that Jagarnath will be competent to authorise anyone of Dwarka Prasad and Badri Narain to be Shebait after him and that Shebait would nominate his succeeding Shebait in consultation with the members of the family of Sakhichand. Badri Narain became the Shebait after Jagarnath. According to the plaintiffs, he appointed plaintiff No. 1, one of his sons, to be the next Shebait by a deed of appointment dated the 14th October 1955. Defendant No. 1, another son of Badri Narain, however, claimed that he had been appointed as the next Shebait by a resolution passed in a meeting of the members of the family as he was the oldest and ablest of all the sons of Badri Narain. This dispute led the plaintiffs to institute the suit. Four sets of defendants were impleaded; Badri Narain's sons by his first wife were defendants first and second parties, defendants 8 to 14, descendants of Raghunandan and Ramkhal were defendants third party and defendants fourth party were the tenants. Plaintiff's own brother and mother joined in the suit as plaintiffs 2 and 3.

(3.) A petition of compromise was filed in the trial court on the 9th of May 1957 by the plaintiffs and all the defendants except defendant No. 14 and defendants fourth party. On that day the plaintiffs applied to expunge the defendants fourth party from the suit. On the 28th of May 1957 defendant No. 14 filed an objection against recording of that compromise. So also objections were filed by defendants 8 to 13 but defendants 12 and 18 withdrew their objections later. Defendant No. 14 was expunged by an order of the court passed on the 30th August 1957 on an application filed by the plaintiffs and defendant No, 1, Thus the only objection to the recording of compromise that remained for consideration by the Court below was by defendants 8 to 11. They raised two grounds; one was that they had signed the petition of compromise without reading its contents and at a time when the defendant No. 8's child was seriously ill. The other ground was that the terms of the compromise were unlawful inasmuch as it came in conflict with the terms of the deed of endowment.