RAMAUTAR SINGH Vs. RAM BINOD SHARMA

JUDGEMENT

(1.) The relevant facts necessary to be stated for the disposal of this civil revision application are these. One Rangu Singh had three sons, Ganauri Singh, Dudheshwar Singh and Deopati Singh, Ganauri Singh and Dudheshwar Singh predeceased Deopati Singh. Dudhesh war's son Ramauthar Singh, who is petitioner No. 1 in this civil revision application, is a lunatic. He, along with his son Bhagwat Prasad Singh and under his guardianship, filed partition suit No. 34/58 of 1948/51, claiming half share in the joint family properties on the ground that Ganauri Singh had died, leaving a widow Alodhan Kuer, who was probably defendant No. 2 in the suit, before 1937. Therefore, on his death the properties came to be owned and possessed half and half by two branches only, namely, those of Dudheshwar Singh and Deopati Singh. The suit was contested by Deopati Singh and, as it appears, also by Alodhan Kuer. In spite of their contest, a preliminary decree was passed by the court below on the 7th of August, 1951, declaring that the plaintiffs were entitled to half share in the suit properties. This decree was, however, challenged in First Appeal No. 444 of 1951 by Deopati Singh and others (it appears, also by Alodhan Kuer, as the facts stated in the order under revision indicate).

(2.) The further facts are that after the passing of the preliminary decree, Bhagwat Prasad Singh, who was the eldest sane adult member of the family of Ramautar Singh, executed a partition deed in which joined Deopati Singh and Alodhan Kuer. By the partition deed, executed and registered on the 2nd of February, 1952, which is Exhibit A in the present proceeding, one -third share in the joint family properties was given and allotted to Alodhan Kuer, one -third share was given and allotted to the branch of Ramautai Singh and one -third share was given and allotted to Deopati Singh. The partition by the deed (Ext. A) was complete by metes and bounds. About two months later, First Appeal No. 444 of 1951 was allowed to be dismissed and was dismissed on the 7th of April, 1952. It also appears that Deopati Singh, after partition under Exhibit A, made a gift of his properties, which he had got in lieu of his one -third share, to Ram Binod Sharma, opposite party No. 1 in the civil revision application. Alodhan Kuer's daughter, Muneshwari Devi is opposite party No. 2, from the facts stated in the order under revision it appears that Alodhan Kuer is dead, but she also is opposite party No. 3 in the civil revision application. It is not necessary to go into the complexity of this question. Be that as it may, the fact which is to be specifically stated is that after the lapse of twelve years, on the 7th of September, 1964, the petitioners, out of whom petitioner No. 3 is a minor son of Bhagwat Prasad Singh and petitioner No. 2 is his widow -since Bhagwat Prasad Singh died after the execution of the deed (Ext. A) - filed a petition dated the 5th September, 1964, in the court below, asking it to appoint a Pleader Commissioner for partitioning the properties by metes and bounds and to pass a final decree on its basis. The opposite party objected to it on the ground that the properties had already been partitioned by Exhibit A and, therefore, they were no longer available for partition by appointment of a Pleader -Commissioner. The court below has rejected the application filed by the petitioners on the 7th of September, 1964, on two grounds, namely (i) that the properties have been partitioned amicably between the parties under Exhibit A and, therefore, there was nothing further left for the court to partition by appointment of a Pleader Commissioner, and (ii) that in the application filed by the petitioners no guardian ad litem was appointed for petitioner No. 1, who is a lunatic. They have come up in revision to this Court.

(3.) We shall leave the second point as it is, without saying much in regard to that, because had we not felt inclined to support the order of the court below on the first point, probably, we would have remitted the case back to that court directing it to appoint a guardian of Petitioner No. 1, as was their prayer in another petition filed on the same date, i.e., the 7th September, 1964, but on which a formal order of the court was not made. But, on consideration of the entire facts and circumstances of the case, we do not feel inclined, in exercise of our revisional power, to upset the order of the court below on the first point.