RAMESHWAR PROSHAD SINGH Vs. LACHMI PROSAD SINGH

JUDGEMENT

(1.) The suit out of which this appeal arises was brought by the plaintiff appellant, a minor represented by his mother and next friend, for obtaining a declaration that the compromise decree in suit No. 35 of 1894 was not binding on the plaintiff, that the will of Ram Charan Singh, the plaintiff's great grandfather and the ekrarnamah of Sheoadhin, the plaintiffs grandfather are void and inoperative, and that Lachmi-Pershad, the grandfather's brother, was a trustee for the join-family composed of himself and his brother and their descendants; and for partition of the properties in dispute. The suit is brought against Lachmi Pershad and his male descendants as defendant first party, and Sheoadhin and his wife Parbati Kumari and his sons Balgobind Singh and Bacha Singh as defendants second party. And the main allegations upon which it is based are that Ram Charan Singh, the great grandfather of the plaintiff who was a Hindu governed by the Benares School of Hindu Law, with the object of keeping the property which had been acquired by himself intact in perpetuity from generation to generation, executed a will or deed of settlement on 8 of November 1867, assigning some properties for the maintenance of his younger son Sheoadhin and declaring that the rest of his property shall be inalienably attached to his gaddi reasat, he being the first incumbent of the gaddi, and his eldest son Lachmi Pershad, and after him his eldest son and the eldest son of his eldest son and so on being his successors, who should hold the estate and provide the other members of his family with maintenance and wedding and funeral expenses; that Oil the 18 of July 1869 Ram Charan Singh's brother "Chandi Pershad made a will in similar terms; that us April 1870 Ram Charan made over the possession of his property to Lachmi Pershad, who got his name registered in the Collectorate; that on the 13 of January 1871 Sheoadhin, in consideration of receiving some additional properties for his maintenance from Lachmi Pershad, executed an ekrarnama in his favour relinquishing all his claims to the property attached to the gaddi; that the descendants of Ram Charan notwithstanding these transactions continued to form a joint Hindu family with Lachmi Pershad as the head or managing member down to Rangoon 1296 F.S.; that the said will and ekrarnamahs which were executed in furtherance of the will are invalid and inoperative; that the defendants second party in, J.891 instituted a suit against the defendants first party for obtaining their shares of the joint property upon a declaration that the said will and ekramamahs were invalid and inoperative, that the suit was compromised and a decree made in accordance with the compromise, but as the present plaintiff was not represented by a proper next friend, and as the compromise was entered into by the defendants second party in ignorance of the real value of the properties in suit, neither the compromise nor the decree passed upon it can bind the plaintiff; and that the plaintiff accordingly brings this suit for the reliefs set out above.

(2.) The defence of the defendants first party who alone contested the suit was shortly this: that the suit was barred by limitation, that Ram Charan had in his lifetime effected a family settlement by which his sons Lachmi Pershad and Sheoadhin became separate, and Lachmi Pershad had all along been in sole possession of the properties in in dispute, and that the ekrarnamahs, the compromise and the decree in the previous suit were valid and binding on the plaintiff. Upon these pleadings several issues were frmed, and by consent of parties, issues Nos. 1, 2, 3, 6 and 7 which run as follows, namely, "(1) Has the plaintiff any valid cause of action? (2) Are the grounds set forth in the prayer No. 1 of the plaint for setting aside the decree and the compromise in suit No. 35 of 1894 true and valid, and sufficient in law to set them aside? (3) Is the said compromise decree liable to be set aside so fear as it affects or- purports for affect the plaintiff? If so, under what conditions if any? (6) Has the plain-tilt a right to maintain the suit when haw after and grandfather me both alive? (7) Has the plaintiff acquired by his, birth right to the properties in suit? If so, what is the nature and extent thereof; and whether he can enforce it by partition" were tried and disposed of first. Upon the result of such trial the suit has been dismissed by the Court below. Against that dismissal of the suit the plaintiff has preferred this appeal, and it is contended on his behalf, first, that the Court below is wrong in holding that the plaintiff did not by his birth acquire any interest in the properties in dispute and he had no cause of action in this suit; secondly, that the Court below is wrong in holding that the plaintiff had no right to maintain this, suit when his father and grandfather were both alive; thirdly that the Court bellow was wrong in holding that the compromise and decree based thereupon are binding on the plaintiff when it ought to have held that they were not binding on him (a) by reason of his not being represented by a proper next friend, (b) by reason of the ignorance of the defendants second party, the plaintiff in that suit, as to the value of the property, and (c) by reason of the sanction of the Court having been obtained without placing all the proper materials before it. On the other hand it is argued for the respondents that not only is the Court below right in dismissing the suit on the grounds stated in its judgment, but that, the suit was liable to dismissal on the further ground that the right to set aside the ekrarnamas of Sheoadhin was barred by limitation and the reliefs claimed in this suit could not be granted until those ekrarnamahs were set aside. The contentions in the appeal therefore raise the following points for determination, namely, first, whether the plaintiff had by his birth acquired any interest in the properties in dispute such as would entitle him to maintain this sit; second, whether the plaintiff can maintain this suit when his father and grandfather are both alive; third, whether the suit is barred by limitation by reason of the right to set aside the ekrarnamahs of Sheoadhin being so barred; fourth, whether the compromise in the former suit and the decree based thereupon are invalid and not binding on the plaintiff by reason of the plaintiff not having been represented in the suit by a proper next friend; and, fifth, whether the said compromise and decree are invalid and not binding on the plaintiff by reason of the ignorance of the plaintiff's next friend as to the value of the property, and also by reason of the Court's sanction, to the compromise having been obtained without placing before it the proper materials. We should have observed that the third point, relating to limitation, arises fear determination in this appeal notwithstanding that, the issue of limitation, which was the fifth issue raised in the Court below, has mot been tried by that Court, because that was a general issue on the question of limitation, whereas the third point is only a particular issue of limitation which arises on the face of the ekrarnamahs and can be disposed off without going into other facts, as will appear when we come to deal with that point.

(3.) In dealing with the first point, it is necessary to state at the onset some of the undisputed or indisputable facts of the case. They are shortly these: The properties in dispute were the self-acquired properties of the plaintiff's great- grandfather Ram Charan Sing and Ram Charan Singh's brother, Chandi Pershad Singh, and the properties purchased with the income of those properties. On the 8 of November 1867 Ram Charan, with the object of perpetuating the right to those properties; in his family, executed a will declaring that all his properties shall retain inalienably attached to his gaddi reasat and shall be impartible amongst this heirs, that he shall be the first occupant of the gaddi reasat, that after him his eldest son, Lachmi Pershad, and then Lachmi Pershad's eldest son, and so on according to the rule of primogeniture, should succeed to the gaddi reasat, that the testator shall have full authority to manage the estate unopposed by any one, and Lachmi Pershad shall have similar authority, that Ram Charan's younger son Sheoadhin shall have two mouzahs named in the will for his maintenance, and that the incumbent on the gaddi reasat for the time being Shall maintain the junior members of the family. Then on the 4 April 1870 Ram Charan and Lachmi Pershad put in applications in the Collector's Court, the latter applying for registration of his name as make of the properties covered by, the will in the place of that of Ram Charan, and the former assenting to, such application, Lachmi Pershad shme was registered. Then on the 13 of January 1871 "Sheoadhin, having, received some additional properties for his maintenance from Lachmi Pershad executed an ekrarnamah surrendering and waiving all claim the moveable and immoveable properties, belonging to his father's estate, and subsequently Sheoadhin got his name registered, in respect of the properties obtained from his brother. On the 18 of July 1869 Chandi Pershad executed a will in favour of Lachmi Pershad bequeathing all his properties in favour pf Lachmi Pershad in connection with the gaddi reasat, and in October 1869 Chandi Pershad made over possession of his properties to Lachmi Pershad, whose name was registered in respect of the same. And Lachmi Pershad and Sheoadhin have continued to be in possession of the properties in respect of which they have had their names registered.