RAI KUMAR SINGH Vs. ABHAI KUMAR SINGH

JUDGEMENT

(1.) These two appeals and the connected civil revision which has been filed ex acutely in case it is held that the appeal is not maintainable have been heard together at great length and arise out of an order passed in execution proceedings. The question for decision is difficult and interesting and has kept learned Counsel on both sides engaged in strenuous, able and exhaustive arguments for four days before us. The question in the main is the applicability of Section 6(a), T.P. Act, to a term in a compromise decree.

(2.) Fortunately, the facts are not in dispute at all. Rai Bahadur Sukhraj Bay by his marriage with Kiran Kumari Devi had two sons, Abhai Kumar and Jai Kumar. Rai Kumar is his son from a predeceased wife. This well-known family of Bbagalpur was possessed of considerable moveable and immovable property and had large money-lending transaction. In the year 1926, Rai Kumar Singh and his minor son Sujas Kumar Singh filed a partition suit in the Court of the Subordinate Judge at Bbagalpur. The defendants were Rai Bahadur Sukhraj Ray, the father, and Abhai Kumar and Jai Kumar, the brothers, and Kiran Kumari Devi, the step-mother of the plaintiff. Mt. Genda Kumari, the mother of Rai Bahadur Sukhraj Ray, was also made defendant 5 in the action.

(3.) The plaintiffs in the plaint alleged that by reason of a special custom prevailing in this family, the females were excluded from inheritance or participation in any share in the event of a partition of the joint family property, but were only entitled to maintenance. On this allegation the share of the plaintiffs was claimed to be one-fourth. On behalf of the defendants and specially on behalf of Kiran Kumari Devi and Mt. Genda Kumari the existence and validity of the alleged custom was stoutly denied. They also raised disputes as to the extent of the jewelleries which could be treated as joint family property. Various other disputes and differences arose between he parties, but they were all settled by a compromise petition filed in the Court on 4-8-1927. By that compromise inter alia the share of the plaintiffs which was claim-ed by them to be one-fourth in the plaint, but which might have been reduced considerably after prolonged investigation, was agreed to be &frac730;th for the reason given that Mt. Genda Kumari was relinquishing her share in lieu of maintenance and the plaintiffs were relinquishing their share in the properties which would be open to inheritance after the death Of defendant 4, the step-mother. Elaborate provisions were made in the compromise petition by which the parties purported to settle the various disputes that could conceivably arise in connection with the partition of such a big joint family estate. It was provided also in para. 9 that if any dispute arose in carrying out the terms of the compromise or if any term or dispute was left out by oversight and not taken into consideration by the compromise petition, it would be brought to the notice of Babu Ranjit Singh and Babu Dharindra Sen (who effected the settlement between the parties) and each party will be bound to act according to the advice given by them in respect of any matter of difference and in case there wag any difference between the said two gentlemen in their respective advices, the parties will be bound by the decision of this Court at the time of drawing the final decree in the suit. In accordance with this compromise petition, a preliminary decree for partition was passed. Order No. 202 of 4-9-1930 (Ex. 6 (c) p. 22) shows that after this compromise a dispute arose between the parties as to the share which the plaintiffs had been given in the jewelleries of the joint family the defendants alleging that the plaintiffs were not entitled to &frac730;th share in the jewelleries but only one-fifth share. The learned Subordinate Judge decided that out of the jewelleries, after handing over jewelleries worth Rs. 6000 to defendant 4, the balance was agreed to be, treated as joint family property and so the plaintiffs were entitled to &frac730;th share in the jewelleries. Various other disputes had apparently cropped up then between the parties but ultimately the Court was asked to prepare the final decree in accordance with another compromise petition which was filed on 18-9-1980. This compromise petition is at p. 29. In para. 2 reference is made to the compromise petition of 4-8-1927 by which the plaintiffs were allotted &frac730;th share in all the moveable and immovable properties and to the preliminary decree passed on 8-8-1927 embodying the terms of that compromise. In para. 3 it is stated that subsequent to the passing of the preliminary decree many disputes relating to the parties and connected matters arose, but they have been finally determined either by an order of the Court or by mutual agreement amongst themselves which the parties were now accepting as final. Paragraph 4 is important and has been the subject of elaborate arguments before us and must be quoted in full: That as regards the share of the parties by private agreement and compromise the plaintiffs have been allotted &frac713;th share in all the joint family properties subject to the exceptions, mentioned in the various paragraphs of the preliminary decree referred to above arid defendants 1, 2 and 3 have each been allotted ⅕th share and defendant 4 has been allotted ⅙th share and defendant 5 has relinquished her share and it has been finally agreed that on the demise of defendants 1, 2, 3 and 4 the plaintiffs or their heirs shall have no claim whatever to the shares allotted to the said defendants and likewise defendants 1 to 4 or their heirs shall have no claim whatsoever to the share allotted to the plaintiffs on their demise. By paragraph 5 it was agreed that defendant 5 would be given a monthly allowance of Rs. 250 for her life and this sum was payable by the plaintiffs and defendants 1 to 4 in proportion to their respective shares the share of the allowance payable by the plaintiffs was made a charge on village Sharfuddinpur and similarly the share of the allowance payable by defendants 1 to 4 was made a charge on village Jotram Rai.