ANANDI DEVI Vs. MAHENDRA SINGH

JUDGEMENT

(1.) This is a defendant's second appeal under Section 100 of the Code of Civil Procedure (for short the Code) in a suit for declaration that ex parte decree dated 17-2-1961 passed in Partition Suit No. 38 of 1960 in the Court of Subordinate Judge, Gaya is illegal and without jurisdiction and also for restraining defendant No. 1 from taking further steps in pursuance of the ex parte decree.

(2.) The plaintiffs have filed the suit with the averments that there was an earlier suit No. 38 of 1960 filed by the present defendant Smt. Anandi Singh in the Court of Subordinate Judge III, Gaya. Lakshman Singh was also made party to the suit, whereas other sons namely, Mahendra Singh and Upendra Singh (the respondents 1 and 2), who (Illegible) minors, were not parties and a preliminary decree obtained on 17th February, 1961 was illegal and fraudulent.

(3.) The suit was contested by the defendant appellant refuting the averments made in the plaint and alleging that Sakaldip Singh, was the natural guardian of minors Mahendra Singh and Upendra Singh, who were not made parties to the suit. But as the natural guardian Sakaldip Singh was a party, hence even though minors were not made parties but that was no prejudice. Lakshman Singh, the major brother of minors Mahendra Singh and Upendra Singh was already party. A preliminary decree was obtained and that wins legal and of no prejudice to minors or any body else. The claim of minors or others could be gone into while preparing final decree. The suit was correctly decreed. No relief can be granted in the present suit.