Manash Nath Roy, J. - (1.) Shri Trijugi Narayan Misra and Ram Bharasa Misra were the sons of Brindaban Misra. The said Trijugi Narayan Misra died on or about 11th September, 1973, leaving behind him, his wife Bidya Debi, petitioner No. 3, son Anup Kumar Misra, petitioner No. 2, another son Gobinda Misra, petitioner No. 1 and three unmarried daughters. The petitioners have claimed to be governed by Mitakshara School of Hindu Law. It has been stated that in or about 1954, Trijugi Narayan Misra and Ram Bharasa Misra amicably partitioned amongst themselves by a registered deed of partition, the ancestral properties as inherited from Brindaban Misra. The said Brindaban Misra died in or about 1937. It has also been stated that shortly after the said partition, Trijugi Narayan Misra effected partition, of the properties with his son, Anup Kumar Misra and Smt. Bidya Debi who are petitioner Nos. 2 and 3, by registered deed of partition and in terms thereof got the respective shares and allotments, demarcated.
(2.) It would appear from the statements in the petition that at the time of such partition, petitioner No. 1, Gobinda Misra was in his mother's womb. It has also been claimed, that the two sons of Trijugi Narayan Misra, being petitioner Nos. 1 and 2, in accordance with the texts of Mitakshara School of Hindu Law, since then became co-sharers with their father, Trijugi Narayan Misra in respect of the ancestral lands and properties as involved in this proceeding.
(3.) It would appear from the statements in the petition, that on or about 8th April, 1968, petitioner No. 1, Gobinda Misra, filed Title Suit No.-34 of 1968 in the Court of learned Subordinate Judge, Coochbehar, against the father, Trijugi Narayan Misra as well as the other two petitioners herein for partition to the extent of his £ share in the 'B' Schedule properties to the plaint, and also claiming appropriate declaration.' Such suit was decreed in preliminary from on or about 10th July, 1968 and thereafter, a final decree was passed upon compromise' on or about 10th July, 1968. Such decree, it has been stated, was passed on the basis of a joint petition of compromise. The copies of the plaint and the said petition of compromise were produced by Mr. Motilal, appearing in support of the Rule, apart from producing the preliminary and final decrees. It has been pleaded in the plaint to the said Title Suit, that in respect of 8 annas share as in the 'B' Schedule properties of the plaint, the defendant Nos. 1, 2 and 3 in the suit viz., Trijugi Narayan Misra, Smt. Biday Debi and Shri Anup Kumar Misra, entered into a partition deed on 6th November, 1954, divided the said properties amongst themselves in three equal shares, while the plaintiff viz., Gobinda Misra, was in mother's womb without allotting any share to him and by the birth of the said Gobinda Misra, the partition as effected was liable to be reopened and the properties in question, would also be liable to further partition in between the parties to the suit. It has also been alleged, that plaintiff Gobinda Misra through his grand-mother had requested to the defendant in the concerned suit, whose particulars have been mentioned hereinbefore, to partition the properties in question, but they, not having done so, the plaintiff Gobinda Misra, would be entitled to partition of the properties as respective shares. In Clause IV of the terms of the settlement, which was the basis of the compromise decree, it was also stated that the partitions and divisions of the properties as envisaged were fair, equitable and lawful and beneficial to the minor plaintiff, Gobinda Misra and shall not be liable to be reopened on any ground whatsoever and that the particulars of the properties, as described in the concerned schedule to the plaint would be fully and wholly covered by the agreement as was presented.;