SUMESHWAR MISHRA Vs. SWAMI NATH TIWARI

JUDGEMENT

(1.) This is a plaintiffs' second appeal and has come up before us on being referred for hearing to a Division Bench by a learned single Judge of this Court. Their case is that, Deokinandan Missir was the common ancestor of the parties. He had four sons, one of whom named Raniprasad predeceased Deokinandan without leaving any issue. Deokinandan died in the year 1920 leaving behind his three surviving sons Ramdat, Rampratap and Ramphal. He died in a state of jointness, Rampratap and Ramphal both died in the year 1921 in a state of jointness. The former's grandsons are plaintiffs 2 to 4. Ramphal left behind Mosstt. Shukbaso Kuer., his widow, and a minor son Man Missir. Shortly after, Man Missir also died in 1921 in a state of joint-ness with Ramdat and the members of Rampratap's branch. Shukbaso Kuer was impleaded as defendant No. 4. She died during the pendency of this litigation. The suit was instituted by Ramdat (Plaintiff No. 1) and the grandsons of Rampratap as Plaintiffs 2 to 4. Ramdat also died during the pendency of the appeal in the lower appellate court and his heirs were substituted.

(2.) In the year 1924 the plaintiffs (by which word in the judgment we mean the original plaintiffs) filed a petition before the Revenue Court for mutation of their names in respect of the joint family properties, which at one time belonged to Deokinandan Missir. Shukbaso Kuer filed a petition of objection and claimed to be substituted in place of her son Man Missir. A compromise was entered into on the 3rd of January, 1925, according to which the plaintiffs were mutated in respect of the properties and the suit land was allotted to Shukbaso Kuer for her maintenance without conferring any right on her to alienate any of those properties. As against the restriction put in the compromise petition, Shukbaso Kuer transferred to defendants 1 to 3, who are her Natis, in August 1960 the suit properties by two registered sale deeds. The plaintiffs brought the present suit for a declaration that the sale deeds are void, inoperative and the transferees have acquired no title thereunder. The trial Court decreed the suit in part only in respect of the properties which were not allotted to Shukbaso Kuer by the compromise dated the 3rd of January, 1925 but had yet been transferred by her under the sale deeds. In respect of the rest of the suit properties, however, the suit was dismissed. The plaintiffs went up in appeal. The learned District Judge has maintained the decision of the trial Court but has only rectified the decree as there was obviously an error in it in regard to the extent of the properties which were covered by the sale deeds but had not been allotted to Shukbaso Kuer in the compromise dated the 3rd of January, 1925. They have come up in second appeal to this Court.

(3.) Before discussing and deciding the main point, which falls for decision in this appeal, I would like to dispose of a minor point raised on behalf of the appellants. Mr. Thakur Prasad endeavoured to point out that the properties transferred by Shukbaso Kuer under the two sale deeds in the year 1960 were not only in excess of the properties allotted to her by the compromise as found by the courts below in regard to some of the plots but excess area even in the plots which were allotted to her was also transferred by her. We do not find any such case made out in the Courts below and since this is a question of fact, we did not permit this' question to be raised for the first time in second appeal. The net result would be that if on the main question of law the judgment of the lower appellate court is fit to be affirmed, it will stand affirmed as a whole.