Madhavan Nair, J. - (1.) THESE are consolidated appeals by the plaintiffs, defendant No.2 and defendant No.5, from a judgment and decree of the High Court of Patna dated May 8, 1941, which varied a decree and judgment of the third Subordinate Judge of Patna dated April 10, 1937, decreeing the partition of the joint family property.
(2.) THE appeals arise out of a suit for partition instituted by plaintiff No.1 (hereinafter called the plaintiff), and his son, plaintiff No.2, against defendant No.1 (hereinafter called the defendant) and defendants Nos. 2 to 4, the other members of a joint Hindu family governed by the Mitakshara law. Defendant No.3 was a minor at the time of the suit but became a major subsequently. Defendant No. was born more than 3 years after the suit began, and was made a party to the suit. The following questions raised by the plaintiffs, defendant No.2, and defendant No.5, respectively, in their appeals, arise for determination before the Board: 1. Whether items 27, 28, 29, valuable articles of jewellery, mentioned in the amended Schedule II of the plaint have been established to belong to the joint family ? 2.Whether the Courts below should have held that defendant No.2 was entitled to arrears of maintenance ? 3.Whether it was open to defendant No.5, born more than 8 years after the partition suit began, but before the actual division of the estate, to claim a separate share in the joint family estate as an "after born son," i. e. in other words, whether the Courts below should have held that the plaintiff and defendants Nos. 1 to 5 were each entitled to one-sixth share in the property ? Other questions raised in their appeals were abandoned by the appellants in the course of the hearing of the appeals.
(3.) TO appreciate the arguments, a few facts not disputed may be mentioned. The following genealogical table shows the relationship of the parties : Raja Ram|ramji Ram (Defendant No.1) |--------------------------------------| | First wife (deceased) Savitri Devi (second | wife) (Defendantno. 4) | |---------------------------- - || Bhagwat Ramlakshmi Newas Ram Sri Newas Ram | | Krishna Newas Ram (Plaintiff No.1) (Defendant No.5)|tarkeshwar Ram (Defendant No.2) (Defendant No.3) (Plaintiff No.2) The defendant was the karta of the joint Hindu family composed of himself and the rest of the parties to the suit. The plaintiff and defendant No.2 are his sons by his first wife deceased. Plaintiff No.2 is the son of plaintiff No.1. Previous to this litigation there had been a family dispute between the defendant and his father Raja Ram, on one side, and a collateral, Saligram, on the other. This was settled by a compromise in 1912, on the terms, inter alia, that each party should retain possession of the jewellery and ornaments which were in its exclusive possession at the time of the compromise, and that the remainder should be divided later. That division took place in 1918, and the present plaintiff and the defendant came into possession of the items allotted to their share.;