LAWS(PVC)-1929-2-84

KUNDAL LAL Vs. RAJ BEHARI LAL

Decided On February 26, 1929
KUNDAL LAL Appellant
V/S
RAJ BEHARI LAL Respondents

JUDGEMENT

(1.) First Appeal No. 444 of 1925 and First Appeal No. 196 of 1926 are connected, and are cross appeals by defendants and plaintiffs respectively arising out of the same suit 1929 A/65 & 66 for recovery of possession of the plaintiffs share of the property and for the avoidance of a deed of relinquishment, dated 19 February 1924, executed by the plaintiffs father. The plaintiffs are the sons of Ram Lal who was one of the sons of Nand Kishore. In 1901. Nand Kishore had two sons, Chaturbhoj and Ram Lal forming members of his joint family and he had a third wife Mt. Chandan Kuar, who was not the mother of either of the sons. Chaturbhoj instituted a suit for the partition of the family property in 1901 against his father and brother and at a subsequent stage, his stepmother, Mt. Chandan Kuar was also impleaded. The share of Chaturbhoj thus became one-fourth of the entire property. At that time Ram Lal was a minor and was impleaded under the guardianship of his father Nand Kishore. The judgment in the case, printed at p. 35, shows that the case was principally contested by Nand Kishore, and was ultimately decreed. A preliminary decree was passed for the partition of the family property and by a subsequent order, dated 28 May 1903 (p. 43) four lots of moveable properties were prepared out of which lot No. 3 was allotted to Chaturbhoj, lot No. 1 went to Mt. Chandan Kuar, lot No. 2 went to Ram Lal and lot No. 4 to Nand Kishore. The decree which was finally prepared on 28 May 1903 (p. 44), however, only mentioned lot No. 3, which had been allotted to the plaintiff Chaturbhoj, although the operative portion of the order passed by the Judge under which the partition made by the commissioner was confirmed had mentioned all the four lots separately. The zamindari property was left undivided and a declaration of the shares of the coparceners only was given Chaturbhoj's one- fourth share was admittedly separated off. We also find that Mt. Chandan Kuar got her one-fourth share separated through the revenue Court.

(2.) A record of the partition proceedings is to be found at p. 71 which shows that there was an imperfect partition of a mahal under which patti No. 1 was allotted to Mt. Chandan Kuar separately, patti No. 2 to Chaturbhoj and patti No. 3 remained joint with Nand Kishore and Ram Lal. Ram Lal attained majority sometime in 1911. In 1924 he, jointly with his wife acting as the guardian of their minor sons, executed the deed of relinquishment referred to above which the plaintiffs now wish to impugn. Under this deed, he admitted that accounts had been settled between him and Nand Kishore and recited the manner in which they had agreed to adjust their accounts.

(3.) The plaintiffs came to Court on the allegation that Ram Lal was insane and the deed of relinquishment obtained by him was obtained under undue influence and was in no way binding on the plaintiffs. They claim that the family has been separate since the partition was made at the instance of Chaturbhoj, and that the share of Ram Lal and his sons has been one-fourth all along. They further claimed that Nand Kishore, who had continued to manage the property, was liable to render accounts and lastly they contended that no such account had been rendered and the deed of relinquishment purporting to close the account was not binding on them. They claimed an actual possession of the one-fourth share together with some property alleged to have been purchased with the money in the hands of Nand Kishore and also claimed mesne profits. The suit was contested mainly by the sons of Chandan Kuar, who had been born subsequent to the partition brought about by the suit of Chaturbhoj. They pleaded that although Chaturbhoj separated, Nand Kishore and Ram Lal continued to be joint and the family was joint, when these defendants were born with the result that they all shared in that half of the property, which remained in the possession of Nand Kishore. They further pleaded that the property which has been subsequently acquired has been acquired not out of the money belonging to Ram Lal but out of the joint family fund, in which all the parties are interested. They of course pleaded that the relinquishment by Ram Lal was binding on him and it was no longer open to his sons to reopen the accounts.