BUJHAWAN SINGH Vs. SHYAMA DEVI

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for partition of joint family properties scheduled to the plaint, involving a dispute about the parentage of the first five plaintiffs. They claimed that they were sons of one Kanchan Singh through his second wife Churia and the original defendant No. 1 (who now is dead) was their step brothel through the first wife of Kanchan Singh. A genealogy was appended to the plaint showing one Dhana Singh had three sons Jagmohan, Bansi and Chandi. Jagniohan's son was Kanchan Singh whose sons were the defendant No. 1 and the first five plaintiffs. Defendants 2 to 5 are sons and grandsons of a Baikunth Narain Singh, defendant No. 1. Plaintiffs 6, 7 and 11 are sons and grandson oi plaintiff No. 1, Ramkhelawan Singh. Plaintiff No. 8 is son of the second plaintiff Bujhawan Singh and plaintiffs 9 and 10 are sons of the third plaintiff Lachhmi Singh. During the suit Ramkhelawan Singh died, so also defendant No. I Baikunth. Plaintiffs' case was that Jagmohan, Bansi and Chandi formed a Hindu joint family having ancestral properties. They also acquired properties out of the income from the ancestral properties. While in joint possession of the same, there was an amicable oral partition between the three branches in 1336 Fs. in which raiyati lands described in schedules 1-Ka and 1-Kha of the plaint and the zamindary interests, mortgage debts and other debts as mentioned in the plaint schedule were allotted to the share of the plaintiffs and the defendants, and they have been, since then, in joint possession of those properties. The properties allotted to the branches of Bansi Singh and Chandi Singh came in their respective separate possession. The lands mentioned in schedule i-Kha were purchased by and belonged to Kanchan Singh and the plaintiffs and the defendants had been also in joint possession of the same. On account of difference amongst the two wives of Kanchan Singh the plaintiffs had to mess with their mother, separate from their step mother and her son and grandson in 1933, but the properties continued to remain joint in the management ot defendant No. r who was the eldest member and Karta of the family. The properties described in Schedule 2 of the plaint were in separate possession of the plaintiffs for their pocket expense. On account of difference and suspicion, the plaintiffs claimed partition from the defendants which was refused and the suit therefore, had to be instituted claiming five-sixth share for the plaintiffs, the remaining one-sixth belonging to defendant No. x and his branch.

(2.) In the trial Court, on account of death, plaintiff No. 1's name was expunged, his heirs having already been on record as plaintiffs. The original defendant No. 1, after his death, was substituted by his widow Shyama Devi. His other heirs were already on record. The minor sons oi defendants 2 and 3, namely, original defendants 4, 5 6 and 7 (grandsons of defendant No. 1 Baikunth) were also expunged for failure of necessary steps for appointment of a guardian-ad-litem for them.

(3.) The suit was contested by defendant No. 2. The written statement was filed by him and his father defendant No. 1. Plaintiffs' title and possession over the suit properties were denied. The basis of the contest mainly was that Kanchan Singh, father of defendant No. 1, had not two wives. He had only one wife and defendant No. 1 was the only son through her. Kanchan Singh being of loose moral character had left the house and began to live with one low caste woman (Tirani woman). Plaintiffs 1 to 5 were born of that woman who was also accessible to others. The original ancestor Dhana Singh's three sons Jagmohan, Bansi and Chandi were of poor means and maintained themselves with difficulty. Jagmohan went to America in young age and became a medical practitioner there and began to support the family which had only 8 bighas of land, with his earnings. He amassed great fortune and acquired large properties. By a deed of gift in 1906 he made over one third of all the properties acquired by him to defendant No. 1, Baikunth Narain Singh, since when he (Baikunth) came in exclusive possession of those properties. Kanchan Singh was completely excluded. The other two-third shares went to Bansi Singh and Chandi Singh in equal halves. Jagmohan became annoyed with Kanchan Singh as he had become vagabond and of immoral character. In 1336 Fs. there was an amicable partition between defendant No. 1 with his branch and the other two branches of Bansi Singh and Chandi Singh. A deed of partition regarding the same was executed on the 10th of January 1930. Following that partition, the defendants have been all through in separate possession of the suit lands allotted to their share. Baikunth Narain Singh's name was also recorded over the raiyati lands in the office of the landlords and his name was also recorded in respect of the villages allotted to bis share in register D. None of the plaintiffs was in any way in possession of any of those properties and they had or have no interest whatsoever in the same. About the properties described in schedule 1-Kha of the plajnt, it was said that those lands were sold for arrears of rent in Court auction and were purchased by Jamuna Singh. The claim of the plaintiffs that they were in separate possession of some lands for their pocket expense was stoutly denied and it was asserted that khata No. 118 Ka had been allotted to the share of the defendants in the partition of 1930. Similarly, plaintiffs' assertion that they separated in mess only from the defendants was challenged. Defendants also claimed that on account of their exclusive possession in an open manner for a long period, they had acquired a perfect title by adverse possession meaning thereby that alterna- tively if the plaintiffs had any claim, that had. been extinguished.