GOPAL LAL Vs. KISHAN LAL

JUDGEMENT

(1.) This appeal under Section 96 CPC is directed against judgment and decree dated 16.04.1982 passed by District Judge, Merta, whereby, the suit filed by the appellants for declaration and partition has been rejected.

(2.) The suit was filed on 10.11.1966 by plaintiffs Gopal Lal and Om Prakash, both sons of Birdhi Chand against Kishan Lal, Joravar Mal - their uncles, Birdhi Chand - their father, Hem Chand - their minor brother through father Birdhi Chand and against Bhanwar Lal S/o Kishan Lal, who was impleaded as party on 07.09.1967 with the averments that the plaintiff Gopal Lal was born on 13.11.1945 and Om Prakash was born on 20.06.1947 and both attained majority on 13.11.1963 and 20.06.1965 respectively; plaintiffs' grand-father Dhanna Lal son of Sukhram died on 20.06.1965 and their grand-mother Ganga Devi died on 25.04.1965; Sukhram died in or about Samwat year 1952 (1895-96), who was Karta and manager of the coparcenery consisting of himself, his son Dhanna Lal and Kishan Lal, Joravar Mal and Birdhi Chand and left considerable properties both movable and immovable at Merta; it was alleged that during the minority of the plaintiffs on or about 09.10.1958, Kishan Lal, Joravar Mal and Dhanna Lal obtained a release deed from their father Birdhi Chand, which is unfair and prejudicial to the interests of plaintiffs, as Kishan Lal, Joravar Mal and Dhanna Lal suppressed the facts of properties described in Schedule-B being joint family properties and gave false and wrong valuation of the properties described in Schedule-C; the release deed dated 09.10.1958 was described as void, illegal and of no effect for the reasons indicated in para 8 of the plaint; the properties described in Schedule-B and C were reproduced in Schedule-A and it was claimed that the plaintiffs being members of the joint Hindu family continued to be in joint possession of properties and the properties were in actual possession of plaintiffs and defendants Birdhi Chand and Hem Chand; cause of action accrued on 09.10.1958 and on 13.11.1963 and 20.06.1965, the date on which the plaintiffs attained majority and prayed for reliefs of declaration of release deed dated 09.10.1958 as void and partition of Schedule-A properties by metes and bounds.

(3.) The suit was resisted by Kishan Lal, Joravar Mal and Bhanwar Lal, who filed joint written statement; the dates of birth of the plaintiffs were not admitted; it was alleged that the family of the plaintiffs Gopal Lal and Om Prakash and defendants Birdhi Chand and Hem Chand was joint family and whose Karta was Birdhi Chand; at the time of death of Sukhram, father of Dhanna Lal, he had four sons, from which, one had gone in adoption and besides Dhanna Lal one Choth Mal and Shiv Lal were also there; Sukhram died leaving behind few house hold utensils as movable property and one Kaccha house as immovable property; the said house was later brought down and at the said place Dhanna Lal and Choth Mal constructed a Pakka house from their personal income; on 23.02.1924 there was partition between Dhanna Lal and Choth Mal by registered document, by which, the said property, which was indicated at Item No.1 in Schedule-A, came to the share of Dhanna Lal; another property indicated in the partition deed was acquired by Dhanna Lal and Chauth Mal after death of Sukhram, their father, from their personal income; at the time of death of Sukhram, all his sons were unmarried and, therefore, Kishan Lal, Joravar Mal and Birdhi Chand were not born, therefore, Dhanna Lal inherited the property from his father as absolute owner; Birdhi Chand left Merta from before August, 1943 and joined service at Ajmer and was continuing in service there and is settled with his family and has separated from Dhanna Lal, Kishan Lal and Joravar Mal from 1943 in food, worship and income and has got a separate income and he never shared any part of his income with his father and with Kishan Lal and Joravar Mal and neither made any effort or contributed any money in acquiring the properties indicated in Schedule; it was then stated in the written statement that Birdhi Chand executed registered release deed on 09.10.1958 in favour of Dhanna Lal, Kishan Lal and Joravar Mal and received Rs.9,000/-, Rs.7,500/- was received cash and a shop costing Rs.1,500/-, which is indicated at Item No.3 in Schedul-A was also given to him; the release deed was executed by Birdhi Chand as natural guardian of his minor sons Gopal Lal, Om Prakash and Hem Chand in his capacity as Karta and for the benefit of the minors; the allegations about the release deed being prejudicial to the interests of the plaintiffs and being unfair were denied; it was stated that Birdhi Chand was not entitled to receive Rs.9,000/-, but as he had difficulty regarding residential accommodation at Ajmer, he requested Dhanna Lal and Dhanna Lal being father, out of love and affection, gave huge sum and property by way of said release deed, which was accepted by Kishan Lal and Joravar Mal in terms of their father's wish; the Schedule-B properties are not ancestral joint family properties as the same were not acquired with the effort and contribution by Birdhi Chand; the allegations about suppressing properties were denied; except for Item No.1 in Schedule-A property, the entire property belong to Kishan Lal, Joravar Mal and Dhanna Lal; the plaintiffs were properly represented by their father at the time of execution of release deed and he was physically and mentally fit and had executed the said deed in his full sense; ultimately, it was contended that except for Item No.1 in Schedule-A, the entire property was acquired by Dhanna Lal, Kishan Lal and Joravar Mal and Birdhi Chand having executed the release deed, the plaintiffs Birdhi Chand and Hem Chand had no right in the Schedule properties; in additional pleas it was stated that Suit No.22/59 was filed by Birdhi Chand challenging the release deed dated 09.10.1958 and seeking partition, which was withdrawn vide application dated 01.09.1961 without permission to file a fresh suit and the said suit was dismissed as withdrawn on 05.09.1961; as the suit was filed by Birdhi Chand, who was guardian of plaintiffs and Hem Chand, who were represented by their father in the said suit and he was manager of the family and, therefore, the present suit was barred on account of doctrine of constructive res judicata; the suit was barred under Order XXIII CPC; it was indicated that the said suit was withdrawn on payment of Rs.2,000/-, which was paid to Birdhi Chand by cheque amounting to Rs.1,065/- and the balance sum alongwith interest amounting to Rs.1,246.25 P. was paid before Civil Judge, Merta on 08.09.1964 and till such time that the said agreement, which led to withdrawal of the suit is also questioned, the suit was not maintainable; several other pleas were also raised including a plea that certain loans were also outstanding.