MT RAMJHARI KUER Vs. DEYANAND SINGH

JUDGEMENT

(1.) This in an appeal against the decree dated 3 September 1943, of the Second Additional District Judge, Patna, which reversed the decree dated 4th February 1942 of the Subordinate Judge, Third Court, Patna. The suit relates to a dispute regarding certain properties of a Hindu family governed by the Mitakshara school of Hindu law. The pedigree given below-indicates the relations between the parties and other descendants of the common ancestor, Ujiar Mahton.

(2.) The plaintiffs in the suit are descendants of Lakpat Mahton, one of the three sons of Ujiar Mahton. The defendants are daughters of Fauzdar Mahton, grandson of Ujiar by his third son Ganpat Mahton. Fouzdar died in the year 1926 leaving behind him his widow Mt. Samundar Kuer and three daughters who are defendants in the suit. On the death of Fouzdar Mahton a dispute arose between the sons and grandsons of Lakpat Mahton on one side and Mt. Samunder Kuer, widow of E ouzdar, on the other, in land registration proceedings for the mutation of names in place of the deceased proprietor Fouzdar Mahton in respect of certain revenue paying estates which were recorded in the names of Lakpat's descendants and Fouzdar Mahton having certain separate shares. Mt. Samunder Kuer claimed to be mutated in the place of her husband on the ground of separation of her husband from the joint family. Lakpat's sons and grandsons claimed mutation on the allegation that Fouzdar died in state of jointness with them and so his interest in those estates devolved upon them by survivorship. Mt. Samunder Kuer's claim was allowed and her name was mutated in the place of her husband. Lakpat's descendants then instituted a suit for a declaration that they were entitled to the estate of Fouzdar by right of survivorship and for confirmation of possession and in the alternative for recovery of possession of three zamindari properties in respect of which Mt. Samunder Kuer's name had been mutated. This suit was instituted in the year 1927.

(3.) During the pendency of the suit Mt. Samunder Kuer died and in her place Fouzdar's three daughters, defendants 1 to 3, were substituted. Ultimately the suit was compromised by which the plaintiffs in the suit recognised absolute right of the daughters to their father's interest in the properties. Rameswar Singh, plaintiff 1, was minor at the time and in the suit he was represented by his grand-uncle Jagatnarain Mahto who, it appears, was the eldest member of the family consisting of Lakpat Mahton's descendants who are admittedly joint. Jagatnarain signed the compromise petition for himself as well as for Rameswar Singh, minor as his guardian. Kedarnath Singh, another plaintiff in the suit, did not sign the petition by his own pen and his signature was made per pen of Misri Singh. Plaintiffs 2 and 3, sons of Kedar were born after the said compromise. In the year 1938 Rameswar Singh and Kedar's two sons, plaintiffs 1 to 3, instituted a suit for setting aside the compromise mainly on the ground that the provisions of Rule 7 of Order 82, Civil P.C., had not been complied with. Kedarnath Singh's son also alleged that their father was not a party to the compromise. The principal defendants in the suit were daughters of Fouzdar Mahton and the adult members of the family in Lakpat's branch who had entered into the compromise were impleaded as defendants second party. It may be mentioned here that Kedarnath Singh died sometime between the compromise of the suit and the institution of the suit of 1938. In that suit defendants second party did not enter appearance and the contest was between plaintiffs 1 to 3 on one side and defendants 1 to 3 on the other. The suit was decreed.