GANNU SINGH Vs. MUSAMMAT BHAGWATI KOERI

JUDGEMENT

(1.) This is an appeal from the judgment of the First Subordinate Judge of Monghyr dated 5th May 1906. The facts of the case are that there were two brothers named Gannu defendant No. 1 and Lalji Singh. Defendants Nos. 3 to 6 are the sons of Gannu Singh. Defendant No. 7 is the grandson of Gannu Singh through his son defendant No. 4. Lalji Singh was married to Musammat Nawratan Koeri alias Chunder Varti Koeri. She is now a widow and is the defendant No. 2. Lalji Singh had a daughter by Nawratan named Bhagwati Koeri, plaintiff No. 1. Ananta Prasad Singh plaintiff No. 2 and Shewnandan Prasad Singh plaintiff No. 3 are the minor sons of Bhagwati.

(2.) The plaintiff's case is that Gannu Singh and Lalji Singh were two brothers; they separated and Lalji Singh left his paternal house at Shakarpura and built a new house at Jailakh Abhiman, and continued to reside there up to his death, which took place in Pous 1305 Fasli; in 1304 he separated his collection from that of his brother and brother's son and grandson. After the death of Lalji Singh the defendant No. 2. Nawratan Koeri his widow caused her name to be separately recorded in the collectorate. In the said proceedings Gannu Singh defendant No. 1 opposed her alleging that Lalji Singh his brother was joint with him up to his death, but in spite of his allegations an order for the registration of the name of the defendant No. 2 in place of her deceased husband Lalji Singh was passed on the 13 June 1898. The defendant No 1 Gannu Singh appealed against that order to the Divisional Commissioner, but his appeal was dismissed Gannm Singh defendant No. 1 then brought a regular suit, against Nawratan Koeri defendant No. 2, praying for a declaration, that Lalji Singh died joint in mess and harbar with his brother defendant No. 1 and that the latter, therefore, was entitled to the estate of Lalji Singh, under the Hindu Law, by right of survivorship. To that suit the present plaintiffs were not made parties. The plaintiffs say that as they are residents of the Bhagalpur District, they had no knowledge of that suit. In that suit Gannu Singh defendant No. 1 is said to have paid a sum of Rs. 10,000 to Nawratan defendant No. 2 and agreed to pay a further sum of Rs. 5,000 and thereby to have obtained the consent of Nawratan Koeri to a solenama (Exhibit No. 29) dated 28 November 1900, by which the defendant No. 2 Nowratan was made to admit that her husband Lalji Singh died joint in food and karbar with Gannu Singh defendant No. 1. She also admitted in the solenama that after her death Gannu Singh and his sons and heirs were entitled to take possession of all the movable and immovable properties forming the estate of her deceased husband. It seems that under the arrangement arrived at by the solenama Nawratan was allowed to live separately with possession of all the properties of her deceased husband up to her death and that her name was allowed to remain in the Collector's register as proprietor in place of her husband. The plaintiffs alleged that the object of this solenama was to deprive them of their rights as reversionary heirs of Lalji Singh, so that a cloud was thrown over their rights as reversioners and that this has given them a cause of action. They also allege that as they are residents of another district they had no knowledge of the solenama filed in the previous suit and that they came to know of it for the first time in September 1901. In the present suit they pray for a declaratory decree to the effect that Lalji did not die joint in food and harbar with defendant No. 1 and his descendants, and that on the death of Nawratan Koeri, defendant No. 2. the plaintiff No. 1 as daughter of Lalji Singh is entitled, if she survives the widow, to succeed to the estate, the reversionary heirs being her minor sons the plaintiffs Nos. 2 and 3. The defendants Nos. ],, 5 and 7, filed written statements and in effect took common ground. Their pleas were (1) limitation, (2) that there was no cause of action, (3) that the parties were governed by Mithila Law, (4) that Lalji Singh and the answering defendants lived joint in food and harbar up to the death of Lalji Singh.

(3.) The Subordinate Judge has decreed the suit with costs, and the defendant first party Gannu Singh has appealed to this Court. On the appeal coming on for hearing, the grounds urged on his behalf are (1) that there is no cause of action, (2) that practically the suit was for setting aside the solenama and as such was barred by the Law of Limitation, (3) that on the evidence the lower Court should have held that Lalji Singh and Gannu Singh with his descendants were joint in food worship and estate (4) that the provisions of Section 42 of the Specific Relief Act have been misapplied.