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Bhagwati Prasad Vs. Bhagwati Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in(1913)ILR35All126
AppellantBhagwati Prasad
RespondentBhagwati Prasad and ors.
Excerpt:
.....- - fraud, collusion and dishonesty were alleged by the plaintiff in the present suit, against both his own relations and the first set of defendants, but he has utterly failed to prove these allegations, and the courts below have held against him on this point and it is not now put forward. this decree clearly was one which, if it were to have any effect, would really upset the whole partition. he was of opinion that the managing members of the joint family were parties to the partition, and as there was no fraud or collusion proved all members of the family were bound by it and could not go behind it, and that the present suit was one brought at their instigation to get behind the partition and to attain the object which they failed to attain in the revenue court by their objections..........present suit does not fall under either of these two latter section of course a person who was no party to a partition proceeding in the revenue court could hardly be held to be bound by such a partition, but the civil court, while giving him relief in such a case, could not go behind the partition and redistribute the land. it would have to take the new mehals as they were and give the plaintiff adequate relief. the plaintiff's case is that by reason of the omission of the revenue court to formally appoint a guardian he was really no party to the partition, and that, even if this formal defect be not fatal to the partition, his brother, lachman, was unfit for the post and did not look after his interests and ought not to have been appointed in the presence of the plaintiffs mother. but.....
Judgment:

Tudball and Muhammad Rafiq, JJ.

1. The facts out of which this appeal has arisen are as follows:

2. The plaintiff, Bhagwati Prasad, together with his half brothers, Jokhu and Lachman, and his uncles Umrao and Ram Nath, and the widow of his deceased uncle Nandan, constituted a joint Hindu family. The family owned a share in mauza Dibaria Buzurg. The defendants, first party, Bhagwati Prasad No. II, minor, &c;, were also co-sharers, and so also were the defendants, third party. These three groups of co-sharers cultivated their separate sir lands. The defendants, second party, are the plaintiffs' half brothers and uncles and aunt. The first set of defendants applied to the Collector under the Land Revenue Act for partition of their share into a separate mahal, The plaintiff was then a minor, and, as the names of all the members of the family were recorded in the khewat, his name was also recorded therein under the guardianship of his half brother, Lachman. There was no objection to the partition, nor is it denied even now that the parties to the partition were the owners in possession of their recorded shares. In the wajib-ul-arz there was recorded the express wish of the then co-sharers that at the time of partition, if it occurred the future, the various co-sharers should be maintained in possession of the various lands which they then held. This is also in accordance with the provisions of the Land Revenue Act and it is a rule regularly followed in all partitions unless it is not possible to divide the mahal fairly and justly between the co-sharers, in which case the rule has perforce to be broken. Provision is made for this in the Act. In the partition proceeding there was an entry to the effect that the rule was to be followed. But apparently the defendants, first party, and the plaintiffs' brothers and uncles came to an agreement out of court and threw their sir lands into the hotchpot and the whole mahal was divided into shares. Fraud, collusion and dishonesty were alleged by the plaintiff in the present suit, against both his own relations and the first set of defendants, but he has utterly failed to prove these allegations, and the courts below have held against him on this point and it is not now put forward. It may therefore be taken for granted that the partition was justly and fairly carried out, and it was completed and sanctioned by the Collector on the 30th of September, 1908, The plaintiff at that time, though a minor, was not far from his majority, for he instituted the present suit on 27th May, 1910, as being major and of full age. He attained his majority in fact on November 25th, 1908 (vide his plaint). In the course of the partition many plots of land which he and his family cultivated as sir, were placed in the mahal of the first defendants. In the course of the partition case the Revenue Court omitted to make any formal appointment of a guardian ad litem for the present plaintiff. The application for partition was made on the 19th of February, 1908. On the 2nd of April a petition was filed by the plaintiffs brothers and uncles to the effect that they had no objection. It was not signed by Lachman, but by Jokhu on his behalf and the plaintiff's name was omitted. On the 2nd of July, 1908, the agreement mentioned above was written and it was filed on the 3rd of July, 1908, and with it a mukhtarnamah signed with Lachman's name. Plaintiff's name was entered in this application (or agreement). Jokhu again appears to have signed for Lachman. On the same day Jokhu filed an application that the plaintiff was a co-sharer and his share should be entered in Lachman's patti. His name was then entered in all papers from which it had been omitted. After the partition lots had been drawn up the family apparently concluded that it was a mistake not to retain their sir plots in their own shares. Accordingly Umrao and Ramnath, the two uncles, and Jokhu filed a petition of objection on the 31st of August, 1908. This was disallowed. Thereupon Lachman and others appealed to the Commissioner and this was also disallowed. The partition was completed.

3. The present suit was brought by the plaintiff alleging--

(1) Fraud and dishonesty on the part of his own brothers and uncles with intent to ruin his interests.

(2) That though Lachman was nominated as a guardian ad litem the court did not formally appoint him.

(3) That he was unfit to act as guardian and not entitled to the post as the minor's mother was alive.

(4) That he did not, as a matter of fact, look after the minor's interests.

(5) That the Revenue Court did not grant any sanction to the agreement in regard to the mode of partition of the lands and that the said partition had been detrimental to the minor's interests.

4. On these allegations he asked for a declaration that the partition was unlawful and void and that defendants, first party, had no right or share in the five anna, four pie share of the family and those plots of land which had been the sir and khudkasht of plaintiffs' family and which had been allotted to them (the defendants). In the alternative he asked to be put into possession of those specific plots. The court of first instance held that the plaintiff was entitled to maintain the suit in respect only to his own share and granted a declaration that the partition was not binding on him and that the defendants, first party, were not entitled to the possession of the plots (of sir and khudkasht) in dispute belonging to the plaintiffs share. It was futher declared that the decree did not affect the rights of the defendants, first party, regarding so much of the lands in dispute as appertained to the share of the defendant, second party. This decree clearly was one which, if it were to have any effect, would really upset the whole partition. It did not even make the plaintiff restore to the other party those lands which he received in lieu of his sir and khudkasht plots in dispute. On appeal the District Judge dismissed the suit in toto. He was of opinion that the managing members of the joint family were parties to the partition, and as there was no fraud or collusion proved all members of the family were bound by it and could not go behind it, and that the present suit was one brought at their instigation to get behind the partition and to attain the object which they failed to attain in the Revenue Court by their objections and appeal. The plaintiff appeals.

5. In the beginning we have to point out--

(1) that no fraud has been established;

(2) that it has nowhere been shown that the partition has been made to the detriment of the plaintiff or that he has not received his fair share of the parent mahal;

(3) that his objection to it is directed not to a question of proprietary title but merely to the mode in which the lands have been distributed;

(4) That the Revenue Court is not in any way subordinate to the Civil Court in respect to the mode of distribution of the land.

6. The suit must fail. Firstly Section 233, Clause (k), of the Land Revenue Act clearly states that no person shall institute any suit or other proceeding in the Civil Court with respect to the partition of mehals except as provided in Sections 111 and 112 of the Act. The present suit does not fall under either of these two latter section Of course a person who was no party to a partition proceeding in the Revenue Court could hardly be held to be bound by such a partition, but the Civil Court, while giving him relief in such a case, could not go behind the partition and redistribute the land. It would have to take the new mehals as they were and give the plaintiff adequate relief. The plaintiff's case is that by reason of the omission of the Revenue Court to formally appoint a guardian he was really no party to the partition, and that, even if this formal defect be not fatal to the partition, his brother, Lachman, was unfit for the post and did not look after his interests and ought not to have been appointed in the presence of the plaintiffs mother. But whatever might otherwise have been the result of the Revenue Court's irregularity, there is in the present case a circumstance which is fatal to the plaintiff's case. His family was a joint family, i.e., one legal entity and it was duly represented by the adult male members. The whole body of adult members was made a party to the proceeding. Their interests and the minor's interests were one and the same. There was no fraud and nothing has been put before the Court to show that the interests of the family or the minor have in any way suffered. There has, therefore, been a partition fairly carried out between the family on one side and the other defendants on the other. The minor was duly represented either by Lachman or the managing member or members of the family. In regard to Lachman the plaintiff in his evidence stated: 'Lachman was master and did all my business after my father's death.' We are therefore of opinion that, even though no guardian was formally appoint for the plaintiff in the Revenue Court, he was duly represented, and a partition fairly and honestly obtained against the managing members of the family is binding on him. We would note here that we allowed the plaintiff an opportunity of taking the matter of the partition on review to the Board of Revenue, the highest court of appeal and revision on the revenue side, so that any injustice might, if it existed, be set right. The Board has rejected his application and nothing has been shown to us which goes to prove that the partition was other than just and equitable.

7. In the circumstances, therefore, we hold that the suit was properly dismissed. We dismiss the appeal with costs.


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