BHAGWATI PRASAD Vs. BHAGWATI PRASAD

JUDGEMENT

(1.) The facts out of which this appeal has arisen are as follows:

(2.) The plaintiff, Bhagwati Prasad, together with his half brothers, Jokhu and Lachman, and his uncles Umrao and Ram Nath, and the widow of his deceased uncle Nandan, constituted a joint Hindu family. The family owned a share in mauza Dibaria Buzurg. The defendants, first party, Bhagwati Prasad No. II, minor, &c, were also co-sharers, and so also were the defendants, third party. These three groups of co-sharers cultivated their separate sir lands. The defendants, second party, are the plaintiffs half brothers and uncles and aunt. The first set of defendants applied to the Collector under the Land Revenue Act for partition of their share into a separate mahal, The plaintiff was then a minor, and, as the names of all the members of the family were recorded in the khewat, his name was also recorded therein under the guardianship of his half brother, Lachman. There was no objection to the partition, nor is it denied even now that the parties to the partition were the owners in possession of their recorded shares. In the wajib-ul-arz there was recorded the express wish of the then co-sharers that at the time of partition, if it occurred the future, the various co-sharers should be maintained in possession of the various lands which they then held. This is also in accordance with the provisions of the Land Revenue Act and it is a rule regularly followed in all partitions unless it is not possible to divide the mahal fairly and justly between the co-sharers, in which case the rule has perforce to be broken. Provision is made for this in the Act. In the partition proceeding there was an entry to the effect that the rule was to be followed. But apparently the defendants, first party, and the plaintiffs brothers and uncles came to an agreement out of court and threw their sir lands into the hotchpot and the whole mahal was divided into shares. Fraud, collusion and dishonesty were alleged by the plaintiff in the present suit, against both his own relations and the first set of defendants, but he has utterly failed to prove these allegations, and the courts below have held against him on this point and it is not now put forward. It may therefore be taken for granted that the partition was justly and fairly carried out, and it was completed and sanctioned by the Collector on the 30th of September, 1908, The plaintiff at that time, though a minor, was not far from his majority, for he instituted the present suit on 27th May, 1910, as being major and of full age. He attained his majority in fact on November 25th, 1908 (vide his plaint). In the course of the partition many plots of land which he and his family cultivated as sir, were placed in the mahal of the first defendants. In the course of the partition case the Revenue Court omitted to make any formal appointment of a guardian ad litem for the present plaintiff. The application for partition was made on the 19th of February, 1908. On the 2nd of April a petition was filed by the plaintiffs brothers and uncles to the effect that they had no objection. It was not signed by Lachman, but by Jokhu on his behalf and the plaintiff s name was omitted. On the 2nd of July, 1908, the agreement mentioned above was written and it was filed on the 3rd of July, 1908, and with it a mukhtarnamah signed with Lachman s name. Plaintiff s name was entered in this application (or agreement). Jokhu again appears to have signed for Lachman. On the same day Jokhu filed an application that the plaintiff was a co-sharer and his share should be entered in Lachman s patti. His name was then entered in all papers from which it had been omitted. After the partition lots had been drawn up the family apparently concluded that it was a mistake not to retain their sir plots in their own shares. Accordingly Umrao and Ramnath, the two uncles, and Jokhu filed a petition of objection on the 31st of August, 1908. This was disallowed. Thereupon Lachman and others appealed to the Commissioner and this was also disallowed. The partition was completed.

(3.) The present suit was brought by the plaintiff alleging-- (1) Fraud and dishonesty on the part of his own brothers and uncles with intent to ruin his interests. (2) That though Lachman was nominated as a guardian ad litem the court did not formally appoint him. (3) That he was unfit to act as guardian and not entitled to the post as the minor s mother was alive. (4) That he did not, as a matter of fact, look after the minor s interests. (5) That the Revenue Court did not grant any sanction to the agreement in regard to the mode of partition of the lands and that the said partition had been detrimental to the minor s interests.