RAM NARAIN SAHU Vs. MT MAKHNA

JUDGEMENT

(1.) (For pedigree see next page.) The sole question in this case is whether at the date of his death (5 August 1927), Deo Narain was separate in estate from all the other members of his family; or whether he was joint with the plaintiffs-appellants, viz. his brother Ram Narain and Lachmi Narain, the latter's son. If he died a separated Hindu, then, as he left no son, his widow Mt. Makhna (defendant-respondent) became heir to his property : if at the time of his death he was a member of a joint Hindu family his interest passed by survivorship to his coparceners. Both Courts in India have held in favour of the widow that he died separate.

(2.) In 1923 the family was joint. Four sons of Rameshar were alive and on 26 March 1923, two of them, Ram Das and Parsotam (together with the latter's minor son) sued the other members of the family for partition, asking for allotment and separate possession of a one-half share. At that time and at all material times Deo Narain was a lunatic. His wife (the present respondent) was appointed his guardian ad litem. The plaint was in one respect disingenuous : it alleged untruly that there had been a division of cash and furniture among the members of the family. This was an attempt to deprive Deo Narain and Ram Narain's branch of their proper shares, but it was detected and frustrated at the trial. Both Ram Narain and Deo Narain filed written statements but neither pleading contained a demand for partition as between themselves. On 15 September 1923, certain accounts were directed and on 23 April 1924 the trial Judge ordered a partition, directing the amin to divide the immovable properties into two lots and to report by 14 May 1924, which lot should be given to the plaintiffs in that suit. This decree does not appear to have been drawn up until October 1924, but a very few days after it was pronounced, Deo Narain's guardian ad litem presented a petition to the Court (dated 3 May and filed 10 May 1924), praying that his share, viz. one-fourth should be separated by the amin and stating that "there is an apprehension of loss in future if the said share is allowed to remain joint." His three brothers objected, but the Subordinate Judge, on 27 May 1924 granted her application and in the final decree for partition dated 16 August 1924 a one-fourth share was allotted in severalty to Deo Narain. From this decree Ram Narain and his son appealed on 27 July 1925 to the High Court at Allahabad, mainly on the ground that it was not in conformity with the preliminary decree of 23 April 1924, and before the appeal was heard Deo Narain died (5 August 1927), leaving him surviving his widow and a daughter. The widow having been brought on the record of the appeal in his stead, the High Court on 19 July 1928 allowed the appeal, holding that after the preliminary decree the Subordinate Judge was not competent to entertain an application that Deo Narain's share should be separated:

(3.) 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 has not been allotted to the plaintiffs should be considered for the purpose 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.