John Wallis, J. -
(1.) THIS is a suit instituted by Babuyee Radhika Devi, a minor suing by her father-in-law as her next friend, for a declaration that she will be entitled to succeed to the share of her father Ramakant in the suit properties on the death of her mother Parbati and the determination of her widow's estate, on the ground that at the time of his death on December 29. 1918, Ramakant had become separated from his brother Ramasray and his nephew Bindeshwari, defendants Nos. 1 and 2. The High Court at Patna reversing the judgment of the Subordinate Judge of Darbhanga has decreed the suit, and defendants Nos. 1 and 2 have appealed.
(2.) THE following genealogical table shows the state of the family. Raghubar Chaudhry. |-----------------------------------| | Chhatardhari = Musammat Makho Bhekhdari = Musammat Chowdhry Chowdhrain. Chowdhry | Alakrupi. (died Dec., 1914) | (died 1915).|| || Baleshar Chowdhry| ----------------------------------------------------- | | |Bhagirath Prasad = Musammat Ramakant = Musammat RamasrayPrasad Chowdhry |Nunubati. Chowdhry | ParbatiChowdhry(died before 1914)| (died 29th | Chowdhrain(Defendant No. 1). | December,| (Defendant. || 1918) | No. 5). || | | Bindeshwari Prasad Babui Radhika Devi = Gobind N. Bacha Chowdhry Chowdhry (Plaintiff) Chowdhry.(Defendant No. 3).(Defendant No. 2. ) (born October, 1918).| Jinut Narain Chowdhry (Defendant No. 4).
The family were wealthy zemindars and money-lenders, and the plaintiff's branch of the family owned an eight annas share of the suit properties, the other eight annas share being owned by the minor Baleshwar who was under the guardianship of his mother Alakrupi. After Ramakant's death his widow Parbati remained for about a year in her husband's family, and then went away to her own family taking with her the plaintiff who was then an infant having been born in October, 1918, and never returned. In 1920 she applied to the Revenue Court for registration of her name in the revenue records as having succeeded to her husband's share in the suit properties; but, owing, it is now alleged, to want of means to prosecute her claim, she entered into a compromise with the defendants by which she accepted in full satisfaction, a maintenance allowance of Rs. 3500 a year and a sum of Rs. 9,000 to be spent on pilgrimages and fasting (sic). It is alleged in the plaint that she was induced to enter into the compromise by fraud and collusion, but no question as to this arises in the present appeal, as it is not contended that the widow's compromise affects the plaintiff's right to the declaration prayed for in the event of her establishing that her father Ramakant had separated from the joint family.
Five years later, when the plaintiff was seven years old, her mother arranged to marry her to the son of Babu Ajodhia Chaudhury. Ajodhia was a zemindar of means and in a position to finance this litigation and there can be little doubt that the prospect of recovering her father's share for his son's wife was his inducement for bringing about this marriage, as it was the defendants' reason for opposing it. They succeeded in obtaining a temporary injunction restraining the performance of the marriage, but Ajodhia and the plaintiff's mother none the less proceeded to celebrate it, thereby exposing themselves to proceedings for disobeying the injunction which did not affect the legality of the marriage; and shortly" afterwards Ajodhia as the plaintiff's next friend filed the present suit on July 20, 1925,
(3.) IT is alleged in the plaint, and not denied in the written statement, that at the time of his death in 1914, Chatardhari, the plaintiff's grandfather, was living jointly with his sons, Ramakant, the plaintiff's father, and Ramasray, defendant No. 1, and Bindeshwari, defendant No. 2, who was the son of a deceased eldest son. The omission of any mention of Bhekhdari's branch of the family which was then represented by his minor son Baleshwar, suggests that Bhekhdari's branch had become divided before his death in 1915; and in the judgment of Kulwant Sahay J., with which James J. concurred, it is said to have been admitted by the defendants at the hearing of the appeal that the two branches of the family were separate. The rent collections continued to be made on behalf of both branches, until in 1918 owing to Ramasray's interference Baleshwar's mother and guardian Alakrupi claimed to have separate collections for her son's share. Ramakant took no part in this dispute which resulted in civil and criminal proceedings in the course of which Ramasray is said to have spent Rs. 30,000 in the next two years. Their Lordships have referred to this dispute at the outset because it figures largely in this case, as the Subordinate Judge has refused to act on most of the documentary evidence tendered for the plaintiff on the ground that it was fabricated in support of Alakrupi's case in this dispute; but, as already stated, it does not appear that there was then any dispute about the separation of the two branches of the family, nor has it been attempted to show that any of these documents were used in support of Alakrupi's case. In their Lordships' opinion this summary rejection of the plaintiff's documents was unwarranted, and deprives the Subordinate Judge's finding on the main issue of any weight.
The plaint in the present case sets up the same case as was put forward by the plaintiff's mother, Parbati, in the mutation proceedings in 1920. It alleges in paragraph 3 that owing to unpleasantness in the family Ramakant became separated in mess utensils and grain in Fasli 1323 beginning in October, 1915, that in Fasli 1324 there was a partition of money, jewels and other moveable properties, and that from the beginning of Fasli 1925, October, 1917, there were separate collections of rents.;