CHIRANJI LAL Vs. RAM KANWAR S/O LAKHMICHAND

JUDGEMENT

(1.) The,following pedigree-table will illustrate the relationship between the parties to the suit which ;has given rise to this appeal, Seth Benarsi Das defendant 3 is alleged to have been adopted by R.S. Seth Ram Kanwar defendant 1 although the latter denies this. fact.

(2.) The family consisting of the descendants of Seth Pem Raj possessed considerable movable and immovable property and were doing extensive business. On 30-8-1903 an arrangement was arrived at between Seth Ghansham Das and his adopted son Seth Mahadev Parshad as one party and Seth Murli Dhar and R.S. Seth Ram Kanwar, the remaining two sons of Lakhmi Chand, as the second party (the lines of Seth Mohan Lal and Seth Bikari Lal having already become extinct) to the effect that in any partition of the joint assets Ghansham Das and his adopted son Seth Mahadev Parshad would be entitled to 221/2 per cent. of the total assets and the remaining 771/2 per cent. would go to Seth Murli Dhar and R.S. Seth Ram Kanwar.

(3.) On 29-8-1937 Seth Mahadev Parshad brought a suit for partition of the joint family property, movable and immovable and the joint business carried on under different names and styles and contrary to the arrangement mentioned above, he claimed a one-half share in the family assets. He impleaded his two sons Seth Benarsi Das and Beth Chiranji Lal as defendants 3 and 7. He alleged that Seth Benarsi Das had been adopted by R.S. Seth Ram Kanwar. The other defendants to the suit were Seth Murli Dhar, Seth Hanuman Parshad, Seth Hardwari Mal and Seth Gauri Shankar. The suit was resisted mainly by R.S. Seth Ram Kanwar who had been alleged by the plaintiff to be the managing member of the family and accordingly in possession of all the accounts. On 23-11-1938 the parties to the suit entered into a compromise according to which the plaintiff was to get a 221/2 per cent. share in the immovable property which formed the subject-matter of the suit excepting two properties which were daclared to be waqf. It was, however, agreed that the surplus income left after the defrayal of the expenses of one of the two properties declared waqf was to be shared by the parties in the same proportion in which they were sharing the rest of the property. The remaining 771/2 shares were to go to R.S. Seth Ram Kanwar and Seth Murli Dhar and their descendants. On the basis of this compromise a consent preliminary decree was passed on 23-11-1938. Certain commissioners were appointed in order to effect partition by metes and bounds. On 2-4-1939 parties other than Seth Chiranji Lal and SetH Benarsi Das who were defendants 7 and 3 respectively entered into a compromise as to the terms in which the final decree was to be passed. The deed of compromise is Ex. P-18 and will be found printed at pages 79 to 82 of the paper-book. It is not necessary to give the details of the arrangement arrived at by the parties to the compromise. On the compromise coming up before the Court for consideration on 6-4-1939 Seth Chiranji Lal refused to accept the same and prayed that either his name might be struck off from the list of the defendants so that the proceedings of the suit might not bind him or he might be transposed as a plaintiff and his share might be separated from the rest of the parties. On the plaintiff's counsel stating that Seth Chiranji Lal and Seth Benarsi Das were really not necessary parties to the suit and that he was prepared to give up the said defendants the Court proceeded to record his statement to the above effect and made an order striking off the names of Seth Chiranji Lal and Seth Benarsi Das from the list of the defendants. The other parties to the suit having compromised a final decree was ordered to be drawn up in the terms of the compromise. This decree is dated 6-4-1939. Some time after this Seth Chiranji Lal brought a suit to avoid the final partition decree mentioned above but his plaint was rejected on his failure to make tip the deficiency in the court-fee. On 28-10-1942 Seth Mahadev Parshad brought a suit against his son Seth Chiranji Lal, Balram minor, the son of Seth Chiranji Lal, his second son Benarsi Das and his wife Mt. Rattan Devi for partition of the property that had been allotted to him as a result of the final decree for partition mentioned above. It may be observed that Seth Mahadev Parshad had, in the suit which he brought against R.S. Seth Ram Kanwar etc., in 1937, claimed the full one half share which would have come to his branch of the family including his descendants but for the agreement of 1903, and in the actual partition effected got the full 221/2 per cent share to which that branch was under that agreement entitled. The object of the suit instituted by him in 1942 against his sons, grandson and wife was to have his own share in the joint family property of himself and his sons and grandson which represented the property that had been allotted to him as representing that joint family separated This suit was settled by means of a compromise on 4-5-1943. The terms of the compromise are to be found in Ex. P-16 which is printed at page 91 of the paper book. Seth Chiranji Lal when examined in Court with reference to the aforesaid compromise made the following statement. I have heard the contents of the compromise. They are correct. A decree may be passed in accordance therewith. Bat this compromise will hare no effect as against my rights in respect of which I have brought or I may bring a suit against Seth Ram Kanwar. The Court passed a final decree for partition in the terms of the compromise.