MOHAMMAD YAHIA Vs. BIBI SOGHRA

JUDGEMENT

(1.) These are two appeals, one by the first two defendants and the other by the plaintiff, against the decision of the Subordinate Judge in an action for partition of certain shares inherited by the parties from their father Maulavi Mohammad Rafiuddin. The Subordinate Judge dismissed the suit against defendant No. 3 holding that a compromise decree upon which this suit was based was not binding on him, he being a minor at the time when the agreement was entered into. The Subordinate Judge gave a decree against the two remaining defendants. Defendants Nos. 1 and 2 appeal against this decision and it is contended on their behalf by Mr. Sushil Madhab Mullick that having dismissed the suit against one of the defendants, the suit could not proceed and should have been dismissed as a whole. The plaintiff appeals against the decision contending that the Judge was wrong in dismissing defendant No. 3 from the suit. Defendant No. 3, respondent, by his Advocate, contends that the decision dismissing him from the suit was right and also supports the other defendants contention that the suit should have been dismissed.

(2.) Maulavi Mohammad Rafiuddin died on September 18, 1919, leaving him surviving three sons and two daughters by his first wife, three sons and one daughter by his second wife, and his widow. The properly inherited by the family consisted of a share in 148 villages in the Patna, Gaya and Monghyr Districts. The widow his second wife, Musammat Bibi Asiran, inherited 2 annas and lais six sons and three daughters the balance of the 14 annas, two-fifteenths going to each of his sons and one fifteenth to each of his daughters. After Maulavi Rafiuddin s death, that is, in October 1919, the widow, Musammat Asiran, made a gift of her 2 annas interest in her late husband s property to all the children including her step-children.

(3.) It appears that disputes arose between the parties and the lady, having repented of her gift, brought an action, suit No. 17 of 1920, to set aside the deed of gift. This suit was compromised in December 1920, on the terms that the gift as regards one and a half anna should stand and the plaintiff, Musammat Bibi Asirar, should retain one half-anna. The defendants of this suit were minors at the time. In June of 1930 this half-anna share of Musammat Bibi Asiran was transferred to her sons, defendants Nos. 1 and 3 of this suit. In 1931 Musammat Bibi Soghra the daughter instituted a suit No. 27 of 1931, against her mother and three brothers to have the Compromise of December 1920 set aside on the ground that the agreement of compromise had been brought about by collusion between her guardian and mother. This suit was also compromised on April 25, 1935. The terms were as follows : the half-anna share which was retained as a result of the compromise of the 1920 suit should be divided into seven parts, one part to go to the plaintiff, Musammat Bibi Soghra, and six parts to defendants Nos. 2 to 4 in that suit who are defendants Nos. 1 to 4 in the present suit; for facility of enjoyment" it was agreed that the plaintiff s share of the property including her share in the anna, her share in the 1/2 annas and her share of the remaining 1 1/2 annas of her father s interest should be taken from 25 villages in the Monghyr District, excluding certain named villages of the other Districts. The plaintiff was to have a right to select from which of the 25 villages her share was to come. The method of working this out was that the jama should be ascertained from the survey khatian, partition khatian, and the schedule prepared under the road cess return, also from the three years village papers of Maulavi Abdulla Saheb, and the village papers of the parties, and the partition should take place according to the jama thus ascertained. This was to be done, in the presence of two named Vakils. On failure of the parties to carry out this agreement, it was further provided that they should be entitled to obtain a partition by the Court. Another term of the agreement was that the plaintiff gave up her right to an account from her eldest brother, defendant No. 1 in this suit. The Judge in the Court below has held that the agreement, apart from the terms relating to the 1/2 anna share, did not form the consideration for the settlement of the dispute in the suit, and this part of the compromise thus being beyond the scope of the suit was not binding on the minor defendant. A decree having been passed on the compromise, the question is whether the minor defendant was bound.