TMI Blog1951 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ng: Moti Rai had two sons, Bhanjan Rai and Hazari Rai. The defendants are descended from the former and the plaintiffs from the latter. The contesting defendant is Seogem Rai, son of Firangi Rai. The plaintiffs did not disclose that Moti Rai's two sons were by different wives, as that was not their case, but that has now been found to be the fact and was not disputed here. The plaintiffs' case is that the family was joint at all material times until their father Ghughuli Rai was forced into a partition in the year 1924. They state that this partition does not bind them for a variety of reasons which, so far as they affect the present appeal, will be detailed later. According to the plaintiffs, the circumstances of that partition were as follows. The plaintiffs' father Ghughuli Rai and the first plaintiff instituted partition suit No. 51 of 1924 against Firangi Rai and his brothers and their descendants, that is to say, against all the members of Bhanjan Rai's branch who were then in existence. The second plaintiff was not then born and the first plaintiff was a minor. There were also minors among the defendants. Firangi Rai, who was the, karta of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 51 of 1924) a number of properties stood in the separate names of various members of the family and were the separate properties. The plaintiffs thus had no right of suit at all. But in order to avoid a long litigation and to settle this family dispute amicably, the defendant's father Firangi Rai agreed to give the plaintiffs a four annas share in many of the properties acquired by the defendant's branch after the first partition in Moti Rai's lifetime to which the plaintiffs' branch had no claim at all. The defendant claims that this is a family arrangement which binds all sides. The first Court decided in the plaintiffs' favour and decreed their claim not only for a declaration but also for partition. It is a matter of doubt whether the plaintiffs ever claimed partition, but there is no doubt that the properties which the learned trial judge has directed to be partitioned were not admitted by the defendant to be subject to partition even on the assumption that the plaintiffs are right in all their other allegations. Thus, the defendant stated that some of the properties were non-existent, others sell-acquired and so forth. But the learned Judge, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction is invalid and the agreement and the decree, if any, following on it is without force. We do not think the Allahabad decision helps the appellants. It is reported in Hariam Bibi v. Arena Bibi (I.L.R. 1937 All. 317). The question there was about arbitration. A suit had been filed in which a minor was involved. The guardian ad litem of the minor agreed to refer the dispute to arbitration. He did not seek the permission of the Court to enter into the agreement but did place the matter before the Court in another way. He said that the parties had agreed to refer the dispute to arbitration and asked the Court to sanction the reference. The Court did so, an award followed, and a decree was passed in terms of the award. Now it will be seen that the learned Judge, who sanctioned the reference, never applied his mind to the question whether a reference to arbitration would be for the minor's benefit under the circumstances of the case. His whole attitude was that as the parties had agreed, that was enough. This did not comply with the provisions of Order 32, rule 7. The learned Judge did not even certify that the compromise was for the minor's benefit. The Full Bench he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uardian for the suit can enter into an agreement or compromise which will bind the minor unless the court sanctions it. If the Patna decision is meant to convey that before the guardian even begins negotiations for compromise with the other side, he must obtain the sanction of the Court, we are unable to agree with that view. The next point was put in the form of a question. Can a minor have a compromise which effects a partition set aside on the single ground of unfairness to him? It was argued that he can, and reliance was placed on Balkishen Das v. Ram Narain Sahu (30 I.A. 139 at 150) and on Mulla's Hindu Law, 10th Edition, page 394, section 308(2). The rule laid down in Mulla's book is expressly stated to be in cases where the partition is not effected by a decree of a competent Court. In our opinion, that is correct. It does not matter whether the decree was by consent or otherwise, for a decree, unless and until it is set aside or avoided in one or other of the ways in which alone a decree may be attacked, holds its force and binds all concerned. It is well established that a minor can sue for partition and obtain a decree if his next friend can show that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and undue influence of the said Firangi Rai Then, in paragraph 17 and 18 the plaintiffs state- 17. That plaintiffs, father being a man of week intellect and finding no help and succour from the people of residential village or neighbourhood and being also unaware of the details of properties of the family could not but submit meekly and quietly to the dictates of Firangi Rai who taking advantage of his fearful supremacy wanted to have everything according to his own sweet wish. 18. That even after the compromise plaintiffs' father could not get any income of the family properties and Firangi Rai remained the sole master of the family appropriating every pice to himself. We will deal with the case of coercion first. It will be seen that the plaintiffs' case regarding that is grounded on the single allegation that their father was threatened with death. When all the verbiage is cleared away, that remains as the only foundation. The rest, and in particular the facts set out in paragraphs 8 to 12 about the ferocious appearance of Firangi Rai and his allegedly high-handed and criminal activities and his character, are only there to lend colour to the genui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is nothing in the evidence to indicate when the undue influence ceased and we find it impossible to believe that it could have lasted eleven years and even two and a half years after Firangi Rai's death. There is also another point. The basis of the claim is the inequality of the partition. Under the compromise, the first plaintiff and his father got those properties which stood in their names and a four annas share in certain other properties. No evidence has been adduced to show the values of these various properties in 1924. For all we know, their value and the four annas share in the other properties may have been equal to eight annas of the entire joint properties. We agree with the learned High Court Judges that coercion is not proved. The case of undue influence suffers the same fate. It was not separately pleaded and the evidence is the same. The last contention is that even if the plaintiffs fail in all else, their case cannot be wholly dismissed because, admittedly, certain properties are still undivided and the plaintiffs are entitled to have them partitioned and to be given separate possession of their share. As we remarked at the outset, it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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