GANESH PRASAD Vs. MTMAKHNA

JUDGEMENT

(1.) These are two appliby one Ganesh Prasad,on of Purshottam, arising out of Execution First Appeals Nos. 69 and 190 of 1944 for a certificate that the cases fulfil to the requirements of Secs.109 and 110, Civil P.C., and are fit for appeal to His Majesty in Council.

(2.) The following pedigree will be helpful in appreciating the facts of the case:

(3.) Suit No. 51 of 1923 was filed in the Court of the Subordinate Judge at Benares for the partition of the joint Hindu family property by Ram Das, Purshottam and the applicant against Ram Narain, his son Laxmi Narain and Deo Narain. They all appear in the above pedigree. A preliminary decree for partition was passed on 28-4-1924. Deo Narain was lunatic at the time of the suit and his wife Mt. Makhna was his guardian ad litem. In the written statements filed by Ram Narain and Deo Narain no demand for partition as between themselves was made. Shortly after the preliminary decree, Deo Narain's guardian ad litem presented a petition to the Court praying that his share, viz., one-fourth, should be separated by the Amin. His three brothers objected, but the Civil Judge on 27-5-1924, granted her application and in the final decree for partition dated 16-8-1924, one-fourth share was allotted in severalty to Deo Narain. Prom this decree, Ram Narain and his son appealed on 27-7-1925, to this Court mainly on the ground that it was not in conformity with the preliminary decree of 23-4-1924. Before the appeal was heard, Deo Narain died on 5-8-1927, leaving him surviving his widow and a daughter. The widow having been brought on the record of the appeal in his stead, this Court on 19-7-1928, allowed the appeal holding that after the preliminary decree the Civil Judge was not competent to entertain an application that Deo Narain's share should be separated. This Court observed as follows in the course of the judgment: We leave Ram Narain and Mt. Makhna to have their rights adjusted by means of a separate suit if they so choose. In the meantime we are of opinion that the portion of the property which had not been allotted to the plaintiffs should be considered for the purposes of the present suit to be property held in common. What the legal effect of the application of Mt. Makhna upon the status of the family property or the constitution of the family qua Ram Narain and Deo Narain is has got to be determined in a subsequent suit if the parties are not agreed as to it or if one or the other party choose to institute a suit.