SHIKAR CHAND Vs. JAGMANDAR DAS

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for a declaration that certain revenue Court partition proceedings were fraudulent and are not binding on the plaintiff. The facts of the case are that the plaintiff's father owned a ten biswas out of 19 biswas share in village Bhat Kheri, and died leaving the present plaintiff as the sole surviving son who was then a minor. The other co-sharer was Hoshyar Singh, the father of defendant 1. In 1909 Mt. Jia, the mother of the plaintiff, was appointed the certificated guardian of the plaintiff during his minority by the District Judge. In 1912 Hoshyar Singh, the co-sharer, filed an application for partition of the village in the revenue Court. The Court, however, did not itself get the lots prepared, but acted upon two lots which wore filed in the case signed by Hoshyar Singh and purporting to have the thumb-impression of Mt. Jia. The village was divided into two separate mahals, one of which was allotted to the plaintiff, Shekar Chand, exclusively and was called after his name, and the other was allotted to Hoshyar Singh. Hoshyar Singh subsequently died and his son Jagmandar Das sold the entire mahal, Hoshyar Singh, to Mohan Lal and others for a sum of Rs. 30,000 under a deed dated the 30 January, 1921. The plaintiff alleges that in the preparation of the lots fraud was practised by Hoshyar Singh on the plaintiff and his guardian in this way that land of better quality was allotted to Hoshyar Singh's share and that of inferior quality to the plaintiff's share, and that a grossly unequal share of the occupancy holding was put in the plaintiff's lots as well as lands yielding no produce. It is further alleged that Hoshyar Singh showed these lots to Mt. Jai and assured her that these were of equal quality and value and got the same accepted by her. The plaintiff's claim accordingly is that the partition proceedings were fraudulent and are in no way binding on him. The suit was contested mainly by Mohan Lal and others who denied that any fraud had been practised and who pleaded that they were bona fide transferees for value and were protected.

(2.) The learned Subordinate Judge has dismissed the suit. On the question whether there was an unequal partition, he has come to a clear finding that it was so and that on a rough estimate the plaintiff has suffered loss from 5 to 10 per cent., of the value of his share. He also was clearly of opinion that the defendants were bona fide transferees for value, who have acquired the property in good faith and were protected. As regards the question of fraud his finding is by no means clear and satisfactory. He began by saying that as regards fraud the plaint did not show the circumstances under which the fraud was committed, and the details of the fraud. This is rather a surprising statement in view of the facts alleged by the plaintiff in paras. 7 and 8 of his plaint the purport of which we have recited above. He next proceeded to say that the only evidence on the point is the statement of the plaintiff's mother and that believing her statement to be true, there is no conclusive evidence of fraud as to vitiate the partition proceedings. We cannot understand how the learned Subordinate Judge could make this remark when he had himself recorded the evidence of Mt. Jia. If the whole of the evidence of Mt. Jia were to be believed, there would be no doubt that a gross fraud was practised on her and that her thumb-impression was obtained on the application on a misrepresentation and at a time when she had been assured "that the partition had been made, and lots had been prepared."

(3.) The learned Subordinate Judge has evaded a clear finding as to whether the statement of Mt. Jia should be believed in its entirety. He has at places criticized her evidence without specifically saying that he disbelieves her. It is also curious that at the end of the judgment he wound up by saying that the plaintiff did not claim any relief against defendant 1, the representative of Hoshyar Singh, and that there was not sufficient material on the record to ascertain the extent of the liability of this defendant due to his father's conduct. All this suggests in a vague way that the learned Judge was inclined to believe that some fraud was practised though in his opinion that fraud was not sufficient to vitiate the partition proceedings.