JANG BAHADUR MISHRA Vs. NAWAL KISHORE MISHRA

JUDGEMENT

(1.) These two appeals have been preferred by two different sets of defendants. Second Appeal No. 882 of 1963 has been filed by defendants Nos. 1, 2 and 3. Second Appeal No. 917 of 1963 has been filed by defendant No. 4. Both these appeals arise out of one single suit instituted by the common plaintiffs respondents. The plaintiffs' suit had been dismissed by the trial Court and, on appeal, the suit has been decreed and the two sets of defendants have come up to this court in their own appeals. The appeals have been heard together and this judgment will govern both of them.

(2.) The plaintiffs' case was as follows: One Makham Mishra had three sons named Gudar Mishra, Jhingur Mishra and Kirit Mishra. Gudar had three sons named Anutha, Daroga and Ramjit. Anutha's son is Nawal, who is one of the plaintiffs. Daroga's son named Chandreshwar is another plaintiff. The third plaintiff is Asharfi, son of Kirit. Jhingur had a son named Jageshwar, who had died leaving behind him a son named Ramlobhit and a daughter named Ramsikil Devi by one of his wives. Jhingur had married a second time and the second wife is Ramkali Devi, who is defendant No. 4 and the appellant in second Appeal No. 917 of 1963. It was alleged that the three sons of Makham were separate and the properties in dispute were in the branch of Jhingur. Jugeshwar had died during the lifetime of Jhingur, leaving Ramlobhit. (Sic) had also died during the lifetime of Jhingur. The plaintiffs had alleged that on the facts stated above, Jhingur had half interest in the properties of the joint family consisting of himself and his descendants, and Ramlobhit and Ramkali had one-fourth interest eack. It was said that after Ramlobhit's death, his interest had devolved on Jhingur and thus Jhingur had three fourths interest. On the 5th August, 1951, Jhingur executed a will by which he conferred life-interest in 2 bighas and 3.1/2 kathas of land on Ramkali and gave the other properties to the plaintiffs. When Ramkali knew of this matter, she filed a partition suit numbered as 97 of 1951, claiming half share in the properties. The suit was compromised by the intervention of well-wishers and Jhingur executed a deed of gift in favour of Ramkali, giving all the properties to her for her life. She was given no power of alienation, and by that deed of gift, all the properties were to devolve on the plaintiffs after Ramkali's death. It was alleged that Ramkali had agreed to the terms of this gift and had accepted the same. It was further alleged that in accordance with this deed of gift, a petition of compromise was filed in the partition suit and the suit was dismissed on the terms of the compromise. But, according to the plaintiffs, although Ramkali had not been given any power of alienation over the properties by the deed of gift, certain terms were incorporated in the compromise petition which had never been agreed upon and which were against the terms of the deed of gift. According to the plaintiffs, further, certain terms which had been agreed upon for the compromise were omitted from the petition of compromise on account of the fraud committed by one Rampadarath Missir, Bahnoi of Ramkali. According to the plaintiffs, neither by the petition of compromise filed in the partition suit nor by the deed of gift, Ramkali had any absolute right in Jhingur's properties and, therefore, she had no power of alienation. The plaintiffs' case was that two sale deeds executed by Ramkali in favour of the defendants first party, who are the appellants in Second Appeal No. 882 of 1963, were not binding on the plaintiffs and the plaintiffs were entitled to a declaration to that effect.

(3.) The suit was contested by defendants Nos. 1 to 3 and 4, who had filed separate written statements. The defence was really the same and the substance of it was as follows. It was contended that Ramlobhit had died before his father, Jugeshwar, during the life-time of Jhingur, and, therefore, Ramkali had half share in the properties and not one-fourth share. It was admitted by Ramkali that she had filed partition suit No. 97 of 1951, claiming half share in the properties to which she was entitled. (It was the common case of the parties that Jugeshwar had died in 1941). According to Ramkali, this suit was compromised and Jhingur had relinquished his interest in her favour and had given her absolute right in the properties. Jhingur was entitled to maintenance only. It was agreed that Jhingur executed a deed of gift in respect of his share according to this compromise, and in fact, a petition of compromise was filed in the partition suit and Ramkali was put in possession of all the properties. All allegations of fraud having been perpetrated in bringing into existence a false compromise " petition were denied. But, according to Ramkali, Jhingur had executed a deed of gift in her absence and the terms of this deed of gift, contrary to the agreement between the parties, were not binding on her. According to her, she had acquired absolute interest in the entire properties of this branch of the family after the Hindu Succession Act of 1956 had been enacted. According to Ramkali, she had every right to execute the sale deeds in favour of the defendants first party, which were challenged by the plaintiffs. These sale deeds were said to have been executed for consideration and for legal necessity. Thus according to the defendants, the suit; was liable to be dismissed.