Case: Chandra Kant Missir &amp; Others Vs. Balakrishna Missir &amp; Others

2. One Bideyanath Misir died many years ago leaving him surviving five sonsMakund, Mohan Lal, Basudeo, Ranu and Bouku. Mohan Lal relinquished his interest in the property of the joint family. Ranu died on November 9, 1913, leaving him surviving his wife Alikrani and no lineal descendants. After the death of Makund and Basudeo, Bouku and his sons and grandsons instituted, in the Court of the Subordinate Judge, Darbhanga, an action for partition and separate possession of their share in the properties described in the Schedule to the plaint on the plea that the properties were of the joint ownership of the parties. The plaintiffs claimed a half share in the properties on alleging that they were entitled to a fourth share in the right of Bouku and another fourth share of Ranu which had after the death of Ranu been entered in the name of Bouku, and income whereof was appropriated by him. The suit was defended by the sons of Makund and Basudeo. They contended that the claim as barred as barred as res judicata, in that a suit was instituted in the Civil Court in 1914 by Basudeo for partition and separate possession of his share in the properties and that the arbitrators who were appointed with the consent of the parties made an award allowing to Makund a six anna share, to Basudeo a five anna share and to Bouku the remaining five anna share, and the property of Ranu was to remain in the possession of his widow Alikrani and on her death it was to be divided in the same proportion between Makund, Basudeo and Bouku. The defendants submitted that pursuant to this award, the property was divided and the parties entered into separate possession of their respective shares. The claim of the plaintiff that Bouku was in possession of Ranus share was denied.3. The Trial Court decreed the suit holding that notwithstanding the award of the arbitrators the suit filed by Basudeo being dismissed forof Commissioners fee, the parties must be deemed relegated to the original status as members of the joint Hindu family. In appeal the High Court of Patna set aside the decree passed by the Trial Court and dismissed the suit filed by the plaintiffs. With certificate, Bouku and his descendants have filed this appeal.

Reasoning: 4. On the evidence it is clear that there was severance of the joint family status and the members of the family were divided in 1914 and their respective shares were since then separately enjoyed and possessed by them thereafter and were entered in the revenue records in their names. That the three members of the familyMakund, Basudeo and Boukuwere in possession of their separate shares in the property of the joint family is established by a mass of evidence and the admission made by Bouku and his sons andparagraph 14 it is averred that Ranu Misser had appointed Rangi son of Bouku as adopted son and that Ranu thereafter lived with him and on his death Rangi performed the obsequial ceremonies and entered into possession and occupation of his entire estate as legal heir and had been appropriating the produce thereof since that day. These averments clearly show that the three branches were in separate possession of their respective shares.It appears that after this preliminary decree was passed by the Court, a Commissioner was appointed. But ultimately the suit was dismissed on the ground that the Commissioners fee was not paid.But the dismissal of the suit cannot operated to wipe out the preliminary decree.Counsel for the plaintiffs sought to raise two contentions before us in support of the plea that the decree was not binding upon the plaintiffs: (1) that Bouku was not served as a party in the suit; and (2) that the arbitrators had acted improperly in giving to Makund 6 annas share, whereas he was entitled to only/5/4 (five annas four pies) share.There is no substance in either contention.10. But, pursuant to the division made in 1914 the shares of the three branches were demarcated by the Commissioner andthe three branches remained in separated possession of the properties allotted to them under that partition. The record of the suit No. 187 of 1914 was it was reported destroyed. But that fact will not enable the plaintiff to get any advantage because the subsequent conduct of Bouku clearly shows that he had taken possession of the properties pursuant to the award and had acted upon the award as being effective. It would be reasonable to infer that a decree binding a person would not be made unless he was duly served with the writ of summons from the Court.The ground that the arbitrators had awarded to Makund a larger share cannot also invalidate the award. It appears that the division was made by agreement between the parties, and Makund was given 6 annas share. Apparently Makund claimed that he was the eldest member and that some of the properties claimed by Basudeo to be joint family properties were acquired by him by his own exertion. The arbitrators apparently accepted that contention and the parties agreed to the award, 35 years after that date and after the terms of the award were carried out, it was not open to one of the parties to raise a contention that the arbitrators had acted improperly in awarding to Makund a larger share than what was awardable to him under the Hindu Law relating to partition.12. The claim to a half anna share in the properties on the footing that Ranus share had devolved upon Bouku is futile. The award in terms provides that Ranus share was to remain in the possession of Alikrani and on her death to be divided between the three branches in the same proportion in which the joint family property was divided. Alikrani died in 1946. Ranu could obviously not make a will of his undivided share in the properties. But the parties agreed that the share of Ranu should be held by his widow, Alikrani for her life and after her death it should be divided according to the shares in the joint property. Under the terms of the award Bouku gets no interest in the property and his claim that his son Rangi was adopted, and that he Bouku had by adverse possession acquired title to Ranus share is not supported by any evidence .