Vivian Bose JUDGMENT
Vivian Bose, J.
1. This is a plaintiffs' appeal from a judgment and decree of the High Court of Judicature at Patna. Their Lordships of the Privy Council had granted special leave and the matter has been transferred to this Court.
2. The suit out of which the appeal arises was for a declaration that a compromise decree, made in a previous suit for partition, does not bind the plaintiffs. The learned counsel for the plaintiffs-appellants also contends that he asked for partition in the present case. But that is a matter of doubt.
3. The facts in brief are as follows : The parties are members of a family whose common ancestor was one Moti Rai. A long genealogical tree was attached to the plaint but it is not necessary to reproduce more than the following :
4. 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 Seogeni 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.
5. 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.
6. 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 family, through the exercise of undue influence, and by coercion, forced the plaintiffs' father to compromise. The compromise was grossly unfair and unequal but nevertheless a decree for partition followed. This is the decree which the plaintiffs seek to challenge here.
7. It is admitted on both sides that that decree left certain properties undivided. The extent of those properties is in dispute but the fact that some properties were left undivided is admitted.
8. In the year 1936 the first defendant instituted partition suit No. 29 of 1936 for partition by metes and bounds of that portion of the estate which was not divided in 1924. The plaintiffs' case is that the previous partition does not bind them and so the whole of the family estate must be brought into hotch-pot and divided and not merely the properties which were left undivided in 1924; also that their share in these properties is greater than the share allotted to their father under the compromise decree. The plaintiffs state that so long as the compromise decree in partition suit No. 51 of 1924 stands,........