Subhash Chandra Singh Alias Rana Subhash Singh Vs. Ramsingar Singh and ors. - Court Judgment

Excerpt:
title suit - partition of joint family properties--plaint amendment with addition of a new paragraph 14(a)--arbitration by punch(sic) appointed by parties but defendants 1 and 9 to 16 walked out and so failed--title suit decreed and plaintiff was held entitled to get 1/1(sic) share in schedule a properties--present suit not barred either (sic) principles of res-judicata or estoppel and plaintiff is competent (sic) file--plaintiff born before filing of suit but not impleaded in suit--where a partition effected between members of hindu undivide(sic) family consisting of minor coparceners, it was binding on minors if was done in good faith and in bohafide manner keeping into account interest of the minors--if such partition is proved to be unjust and unfair and was detrimental, it could be..... gurusharan sharma, j.1. one kali singh of village gadopur of (sic)rnea district left behind two sons, ramlagan singh, the defendant no. 1 and shyam nandan singh, the defendant no. 2. sunfulia devi, the defendant no. 4 was wife of ram lagan singh and baikunth singh, ramprit singh and (sic)andrakant singh, the defendants 9, 10 and 11 were his sons, binda devi, (sic) defendant no. 12 and rana subhash singh, the defendant no. 13 were respectively the widow and son of ramudit singh, pre-deceased son of (sic)mlagan singh, ram sumari devi, the defendant no. 15 and akhilesh kumar (sic)ngh, the defendant no. 16 were respectively the widow and son of (sic)mshresth singh, another pre-deceased son of ramlagan singh.bidyanand singh, the defendant no. 2 was son of shyam nandan singh, (sic) had six.....

Judgment:

Gurusharan Sharma, J.

1. One Kali Singh of village Gadopur of (sic)rnea district left behind two sons, Ramlagan Singh, the defendant No. 1 and Shyam Nandan Singh, the defendant No. 2. Sunfulia Devi, the defendant No. 4 was wife of Ram Lagan Singh and Baikunth Singh, Ramprit Singh and (sic)andrakant Singh, the defendants 9, 10 and 11 were his sons, Binda Devi, (sic) defendant No. 12 and Rana Subhash Singh, the defendant No. 13 were respectively the widow and son of Ramudit Singh, pre-deceased son of (sic)mlagan Singh, Ram Sumari Devi, the defendant No. 15 and Akhilesh Kumar (sic)ngh, the defendant No. 16 were respectively the widow and son of (sic)mshresth Singh, another pre-deceased son of Ramlagan Singh.

Bidyanand Singh, the defendant No. 2 was son of Shyam Nandan Singh, (sic) had six sons, namely, Abinash Singh, Arbind Singh, Ashok Singh, Ramnath Singh and Sheonath Singh, the defendants 4 to 8 and his sixth son (sic)msinger Singh was the plaintiff.

2. According to plaintiff, in order to save the joint family properties from a mischief of the Bihar Land Reforms (Fixation of Ceiling Area and acquisition of Surplus Land) Act, 1961, as also Bihar Agricultural Income Tax Act, a collusive Partition Suit bearing No. 237 of 1955 was filed by the defendant No. 1, wherein defendants 2 and 3 and existing minor sons of (sic)dyanand Singh (defendant No 3) with wrong names were shown as plaintiffs (sic)d the said suit was disposed of on the basis of a fraudulent compromise (sic)tition filed therein even without any knowledge thereof to the other members of the family. A forged signature of the defendant No. 3, who was e of the plaintiffs in the said suit on the plaint as well as on the compromise (sic)tition were got inserted. The said compromise, if any, was collusive and (sic)udulant one and was never acted upon and the family continued as a joint ndu family.

3. Even the mutation of the names of the members of the family was done (sic)parately on the basis of the compromise decree, without their knowledge, (sic)spite of the above the defendants 1 and 2 jointly dealt with the properties of (sic) family at villages pirarha and Basantpur Goriar Kamat.

4. The plaintiff further pleaded that it was apparent that the schedules of a properties shown to have been allotted to the members of the family in the compromise petition were not according to their respective share. Neither any permission as required under Order XXXII of the Code of Civil Procedure was sustained from the court permitting the guardian of the minor plaintiffs to sign e compromise petition on behalf of the minors, nor the court recorded its (sic)tisfaction that the said compromise was for the benefit of the minor parties such the said compromise was null and void and not binding on the plaintiff, me of the properties of the joint family were even not included in the said it. The plaintiff's interest was not affected on account of such a compromise cree.

5. On 18.11.1976, the plaintiff, therefore, filed Tile Suit No. 272 of 1976 the Court of Subordinate Judge, Purnea for partition of his 1/6th share in joint family properties described in Schedules A, B and C to the plaint.

6. Only the defendant No. 13 filed written statement on 11.7.1980 and contested the suit. According to him, the compromise decree in Partition Suit No. 237 of 1955 was legal, valid, justified and binding on the members of the erstwhile joint family including the plaintiff and it was acted upon. As the plaintiff was not born then, he was not a party therein but his father was plaintiff No. 2 and was a signatory on the compromise petition, in terms of which, the said suit was disposed of. In fact, the present suit in the garb of a partition suit was a suit for setting aside the said compromise decree. The present suit was, therefore, barred by the principles of estoppel and res-judicata.

7. In accordance with the said compromise decree, the lands were recorded in the recent revisional survey record of rights and the parties were enjoying separate and exclusive physical cultivating possession over the lands allotted to them and made separate alienations thereof. After the said compromise, there was no occasion for the defendants 1 and 2 to jointly deal with any property. The properties of the family were legally partitioned and the legitimate shares were shown in the compromise petition and there was no unequal distribution therein. A petition for sanction of compromise on behalf of minor defendants was filed and the court granted permission and the interest of the minors were fully protected by their natural guardian. The plaintiff was not justified in saying that by the said compromise decree only partial partition can be alleged to have taken place, whereas in fact, partition by metes and bounds was effected and parties were put in physical possession over the properties allotted to each one of them and as such there was no necessity thereafter for preparation of any final decree.

8. On 13.12.1980, at the instance of the plaintiff, the plaint was amended and a new paragraph 14(a) was added. A subsequent event after filing of the suit was brought on record. There was a panchayati/arbitration by the punches/arbitrators duly appointed by the parties but the defendants 1 and 9 to 16 walked out and so it failed.

9. By the impugned judgment and decree dated 31.3.1981, Title Suit No. 272 of 1976 was decreed by the Third Additional Subordinate Judge, Purnea and the plaintiff was held entitled to get 1/16th share in Schedule-A properties.

10. The trial Court found that the plaintiff was born on 20th January, 1955, i.e. earlier to filing of Title Suit No. 237 of 1955. In the compromise petition the alias name of the plaintiff as Ajay Kumar Singh was inserted at one pace. The writings of Bidyanand Singh, Exts. D/2 and D/3 on the compromise petition were clearly in different pen and were not genuine. The compromise decree was wholly null and void and not binding on the plaintiff. The present suit was not barred either by principles of res-judicata or estoppel and the plaintiff was competent to file. There was unity of title and possession of the parties in respect of the properties described in Schedule-A to the plaint and the plaintiff was entitled to get a decree for partition to the extent of his share therein. Defendant No. 13 has therefore, filed the instant appeal against the said judgment and preliminary decree.

11. Mr. Indushekhar Prasad Sinha, Senior counsel for the appellant submitted that the compromise decree was not void and even if violation of Order XXXII, Rule 7(2) of the Code of Civil Procedure - was may be voidable, the present suit was barred by time under Article 59 of the Limitation Act. Further while alleging commission of fraud in the Compromise the plaintiff failed to comply with the provisions of Order VI, Rules 3 and 4 of the Code and for these reasons the impugned judgment and preliminary decree are vitiated.

12. Mr. S.K. Mazumdar, Senior Counsel for the respondent No. 1 submitted that under Section 44 of the Evidence Act, the compromise decree in Partition Suit No. 237 of 1955 was vitiated by fraud and the Court and was rightly set aside by the trial Court by the impugned Judgment and decree which may be confirmed by this Court. It was not in dispute plaintiff-respondent No. 1 herein was already born before the filing out he was not impleaded in the suit. However, his alias mm d in the compromise petition, but his natural guardian, the father plaintiff No. 2 was not permitted by the court to sign the compromise after recording a finding that the said compromise was for the minor and the trial Court rightly found that signature of plaintiff the said compromise petition was forged.

13. It is well settled that where a partition was affected between the members of the Hindu undivided family, which consisted of minor coparceners, it was binding on the minors also if it was done in good faith and in bonafide manner keeping into account the interests of the minors. If such partition was proved to be unjust and unfair and was detrimental to the interests of the minors, it could certainly be re-opened whatever the length of time when the partition took place, irrespective of the question of bonafide. If a minor, on attaining majority was able to show that the division was unfair and unjust, the court would certainly set it aside.

14. After hearing the parties at length and perusing the records 1 am of the opinion that the present case fell within the ratio of the decisions in Bishundeo v. Seogeni Rai : [1951]2SCR548 and in Ratnam Chettiar and others v. S.M. Kuppuswami Chettiar and Ors. : [1976]1SCR863 , The evidence and circumstances of the case clearly show that every step in Partition Suit No. 237 of 1955 was taken by Ram Lagan Singh alone, who was the karta of the joint family, without the knowledge of either the father or grandfather of the present plaintiff.

15. In the premises of the circumstances stated above, I do not find any reason to interfere with the impugned judgment and preliminary decree.

16. In the result, the appeal fails and is dismissed, but without costs.