KISHAN LAL Vs. LACHMI CHAND

JUDGEMENT

(1.) This is a plaintiff's first appeal arising out of a suit for a declaration and for the completion of a deed of partition in accordance with the terms agreed upon between the parties. The facts of the case which have given rise to this appeal may briefly be stated as follows : One Tota Ram had three sons, Piare Lal, Atma Ram and Lachmi Chand. Mt. Sarsuti is the widow of Piare Lal. Kishan Lal and Debi Prakash are the sons of Atma Ram. Piare Lal died in. 1918. Tota Ram died on 21st October 1927. Tota Ram and his sons admittedly were members of a joint Hindu family. The family owned extensive properties in the District of Dehra Dun. The present suit was instituted by Atma Ram but he died during the pendency of the suit and thereupon his sons named above were brought on the record as his legal representatives.

(2.) The plaintiffs allege that Atma Ram, and Lachmi Chand, defendant 1, made a partition of the properties owned by the joint family privately and each of them got possession over the plot which was allotted to his share. According to the plaintiffs case this partition was made orally and after the partition had been made a memorandum was written out in which the properties allotted to each side respectively were noted down. It was also noted in the memorandum that both sides would pay a sum of Rs. 60 monthly to Mt. Sarsuti, the widow of Piare Lal. In the memorandum it was also noted that a complete and formal deed of partition will later on be executed. All this is said to have happened on 3 February 1928. The plaintiffs alleged that Lachmi Chand, defendant 1, in the case resiled from his position and refused to execute the deed as had been agreed upon between him and Atma Ram. Atma Ram plaintiff thereupon instituted a suit in which the following reliefs were claimed : (a) It may be declared by the Court that according to the private petition the lots consisting of the properties given in Schedule (b) came to the plaintiff's share, that the said partition is binding upon the parties, that all the rights which the defendants had to the property mentioned in the said lot before the private partition ceased to exist from 3 February 1928 and that the plaintiff is the owner in possession of the said lot. (b) The defendant may be ordered to execute and complete along with the plaintiff a deed of partition according to the terms given in the bond drawn in the shape of a memorandum dated 3 February 1928 and he may be directed to get the same registered. (c) Note : - This relief was abandoned during the pendency of the suit, (d) In case the plaintiff is held to be dispossessed from any portion of the property given in Sch. (b) a decree for possession thereof may be passed in favour of the plaintiff. These were the principal reliefs claimed.

(3.) The suit in the first instance was instituted against Lachmi Chand, defendant 1, alone, but Unkar Prasad, defendant 2, who is a son of Lachmi Chand, was brought on the record as one of the defendants. The suit was resisted by both the defendants. Lachmi Chand's defence was that he had been made to sign the memorandum mentioned above as a result of fraud and that he was not in any way bound by it. It was denied by him that any partition of any property was made between him and Atma Ram. Unkar Prasad also denied the partition, said to be private partition, set up by the plaintiff and further pleaded that he was not in any way bound by any such partition even if the fact be established on the ground that it was against his interest. The case proceeded and the plaintiff and Lachmi Chand filed a compromise in the Court of the Civil Judge of Dehra Dun. The learned Judge passed a decree against the defendants on the basis of that compromise. An appeal was referred to this Court by the minor Unkar Prasad against this decree. This Court set aside the decree as it had been passed ex parte against defendant 2 and the case was remanded to the Court below for trial.