JANAK YADAV Vs. SARBAJIT RAI

JUDGEMENT

(1.) This Second Appeal, at the instance of the defendants, is directed against a judgment of reversal and involves for consideration a short substantial question of law namely, whether the plaintiff's suit was liable to be dismissed for non-joinder of one Mosst. Jileba Kuer?

(2.) One Pitamber Raut had three sons, namely, Sarbjit (who is the plaintiff), Sarjug, who died leaving behind his wife Jileba, and one Bhuil, who, undisputedly, died issueless. The plaintiff's case was that after the death of Pitamber his three sons came in joint possession over the ancestral property, which, undisputedly, included the suit land. Bhuil died in a state of jointness with his two brothers. Sarjug too, according to the plaintiffs case, died at Rangoon some time in the year 1935 A. D. leaving his widow Jileba Kuer but no issue. The property of Sarjug, on his death, passed by the right of survivorship to the plaintiff and Jileba was only a maintenance-holder-Jileba was a pardanashin lady of weak Intellect and of old age and, taking advantage of the same, the two appellants got two sale deeds executed by her each on 4-7-1977 with respect to the suit land by practising fraud and without payment of consideration. Impleading the two defendants, who are appellants before this Court, the plaintiff, therefore, instituted the instant suit for a mere declaration that the two sale deeds were void, inoperative and they did not confer any title to the defendants in respect of the suit land,

(3.) The defendants contested the suit by filing a common written statement alleging, inter alia, that the suit was not maintainable and was liable to be dismissed for non-joinder of Jileba Kuer. while not disputing that Bhuil died in a state of jointness with the plaintiff and Sarjug, the defendants averred that there was a Private partition between Sarbjit and Sarjug some time in the year 1936 in which they partitioned their properties and came in separate possession. Thereafter, in the year 1957, Sarjug died at Rangoon and accordingly his widow Jileba Kuer came in possession of his properly and having a necessity, she executed the two sale deeds alleging that the properties transferred by the two sale deeds were in her possession. 3A. On 9-11-1978, issues were framed. Although, one of the issues framed was that the suit was not maintainable, no specific issue was framed regarding the suit being bad for non-joinder of Jileba Kuer. On 19-4-1979, both the parties were prcsent, their lawyers were heard regarding the issues and the issues were recast. No issue, however, was framed on that date, also as to the suit being bad for non-joinder of Jileba Kuer.