RAJ KUMAR Vs. SHIVA PRASAD GUPTA

JUDGEMENT

(1.) The parties in this suit are members of a Hindu family governed by the Mitekshara School of Hindu law, whose common ancestor was one Badanlal. Their relationship is shown in the pedigree annexed to the plaint. At the time of the institution of the suit both the plaintiffs were minors. Bajkumar has since attained his majority. The plaintiffs ask for a declaration that a decree dated 26 February 1926, made in the Miscellaneous Case No. 13 of 1926 in the Court of the Subordinate Judge of Allahabad, by which effect was given to a partition award, is void against or voidable by the plaintiffs, for a decree setting aside that decree and consequently the partition and for consequential reliefs, including partition and accounts. Prom the time of Badanlal onwards the members of the family lived as members of a joint Hindu family, but on 30 April 1921 the defendant, Shivaprasad Gupta gave notice of his intention to separate and to obtain a partition of the family property. At that time the co-parceners were Raja Motichand C.I.E., who subsequently became Raja Sir Motiohand Kt., C.I.B. and died in 1934. (2) The defendant Gooul Chand. (3) The defendant Krishna Kumar, (4) The plaintiff Raj Kumar. (5) The plaintiff Bejoy Kumar. (6) The defendant Jyoti Bhusan. (7) The defendant Harak Chand. (8) Jagat Bhusan, then an infant under the age of 18 years, who died in or about the month of February 1936. (9) Rai Mukund Lal Bahadur, originally a defendant, who has died since the institution of the suit. (10) The defendant Shashi Bhusan, another infant under the age of 18 years. (11) The defendant Indu Bhusan. (12) The defendant Shiva Prosad Gupta.

(2.) Thereafter it was agreed between the adult members of the family that partition should be given effect to as from 10 October 1921 and a draft deed of partition was prepared. But the parties could not come to terms, and on 25 May 1922 it was agreed in writing between (a) Raja Motichand and the defendant Gooulchand and Krishna Kumar.... First Party (b) The defendant Harakchand.... Second Party (c) Rai Mukundlal Bahadur.... Third Party (d) The defendant Shiva Prosad Gupta.... Fourth Party, that matters in difference between the parties should be referred to the arbitration of Pandit Madan Mohan Malviya and Pandit Baldeo Earn Dave. A copy of this agreement is annexed to the plaint. The defendant Goculchand purported to act for himself and also as father and natural guardian of the plaintiffs and as the natural guardian of the defendant Jyoti Bhusan who was then a minor. It is contended inter alia by the plain. tiffs that Goculchand had no authority so to act because Raja Motichand was then the elder brother of Goculchand and was the head of that branch of the family. Further that their interests were adverse to those of Goculchand and that the reference to arbitration was not for their benefit and that Pandit Madan Mohan Malviya was for various reasons strongly biased in favour of the defendant Shivaprosad Gupta and other defendants, and consequently, that there was no proper reference to arbitration on their behalf and that the reference and subsequent award are not binding on them. The arbitrators published their award on 30th November 1925, a copy of which is annexed to the plaint. The plaintiffs con. tend that it was not for their benefit and that the arbitrators were guilty of misconduct, and that Pandit Madan Mohan Malviya's self-interest and his duty as arbitrator were in conflict.

(3.) The real and substantial cause of the dispute between the parties to the present suit centres round a part of the family property, namely a mill known as the Bharat Abhyuday Cotton Mill. The plaintiffs contend that this and the business connected therewith was an asset of uncertain and fluctuating value, but the arbitrators allotted this property, upon the basis of a gross overvaluation, to the plaintiffs branch of the family instead of to all the branches according to their respective shares. On 19 January 1926 the defendant Shivaprosad Gupta made an application in the Court of the Subordinate Judge of Allahabad for an order directing the arbitrators to file the award, and for judgment and for a decree in accordance therewith. A copy of this application is annexed to the plaint. Goculchand was appointed to act as guardian- ad-litem of the plaintiffs and Motichand and Gooulchand and others filed petitions to the effect that they had no objection to the decree, which was passed on 26 February 1926. The plaintiffs allege that this was a consent decree and contend that it is not binding on them because the leave of the Court was not obtained or recorded under the provisions of Order 32, Rule 7, Civil P.C. Further they contend that their interests were adverse to those of Goculchand, and consequently that they were not properly represented, that the decree was not for their benefit that the Court made no inquiry to ascertain whether it was for their benefit and did not so certify and that Goculchand was negligent in failing to draw the attention of the Court to these facts and otherwise in failing to protect their interests. The defendants deny all these contentions and allegations. A number of issues were raised and settled but the most important one is founded upon the plaintiffs allegation that the parties came to an agreement of compromise in or about the first half of the mon February, 1926 and that in consequence thereof the decree of 26 February 1926 was passed by consent. In the first place they contend that certain letters (Ex. E) which passed between Raja Motichand and Shivaprosad on 30 January 1926 and 11 and 12 February 1926 amount to such an agreement.