BHAGWAT KOER Vs. DHANUKDARI PRASAD SINGH

JUDGEMENT

(1.) These are consolidated appeals against throe decrees of the High Court of Calcutta dated the 22nd May, 1913, two of which affirmed decrees of the First Subordinate Judge of Saran dated respectively the 17th March and the 12th May, 1910, while the third modified a decree of the same Court dated the 18th July, 1910.

(2.) The facts leading up to the litigation may be shortly stated as follows: Srikishan Singh, Bachchu Singh and Jugalkiahore Singh were three Hindu brothers governed by Mitakshara law and possessed of considerable properties in the districts of Saran and Gya and in Oudh. Jugalkishore died on the 5th July, 1872, without issue, leaving a widow Mussummat Anandi Koer; Srikishun died on the 18th July, 1872, without male Issue, leaving a widow and two daughters; and Bachchu died on the 9th February, 1874, leaving a son, Mahabir Singh.

(3.) After Jugalkishoro s death Bachchu applied to the District Judge of Saran, under Act XXVII of 1860, for a certificate to collect debts due to the estate of Jugalkishore, alleging that the three brothers had been joint in estate and that he was entitled as survivor to Jugalkishore s estate. This application was opposed ; by Jugalkishore s widow, Anandi Koer, who claimed that a partition between the three brothers had been effected in the year 1864 and accordingly that at the date of her husband s death the brothers were separate and she was entitled to succeed to her husband s estate. Bachchu died while this dispute was pending, but in the result the District Judge decided that the alleged partition had not taken place and accordingly that the three brothers were joint, and granted the certificate to Mahabir. This decision, being given only upon a question of representation, did not preclude Anandi Koer from raising the question of title again in a suit properly instituted for that purpose; but in fact Anandi, acting through her brother and attorney, accepted the decision and executed an agreement dated the 17th May, 1874, agreeing, in consideration of certain property being allotted to her for maintenance during her life, not further to contest the matter; and thereupon Mahabir took possession of the estate. This transaction, the effect of which is in dispute, will be referred to at greater length hereafter.