A decree passed in a partition suit against the father is binding on his minor sons unless fraud or negligence is shown on the part of the father in the partition suit.

S.P. BHARGAVA, J.

1. This is plaintiffs' appeal from a judgment and decree of the District Judge, Chhatarpur, in Civil Suit, No. 12 of 1955 of his Court, passed on 25-10-1956.

2 The suit out of which this appeal arises was for a declaration that a decree made in a previous suit s ineffective and illegal against the plaintiffs. No further relief for reallocation of shares of fresh partition was asked for in the present case.

3. Briefly stated, the facts of the case are as follows:-The parties are members of a Hindu family governed by Mitakshara, whose common ancestor was one Bansidhar. The following geneological tree would disclose the relationship between the parties:-

4. After the death of Bansidhar and Shrinandan, Jwalaprasad, a grandson of Bansidhar, instituted a suit for partition against his uncle Choukheylal and his three sons, the legal representatives of his deceased uncle Shrinandan and against his own father and two brothers. This suit was registered as C. S. No. 36 of 1951 in the Court of the District Judge, Naogaon, and was decreed by the trial Court on 27-3-1952. This decree was confirmed on merits on an appeal being taken to the Additional Judicial Commissioner on 30-8-1952. Application was moved for obtaining sanction to appeal to the Supreme Court and for getting the judgment reviewed by the Additional Judicial Commissioner but these applications also were dismissed. The contesting defendants in the said suit were Choukheylal and his three sons. Choukheylal is said to have died during the pendency of the appeal in the Court of the Additional Judicial Commissioner and, therefore, subsequently, the contest remained between his three sons, i. e., defendants No. 8, 9 and 10 in the present suit, on the one hand and defendants No. 1 to 7 on the other.

5. In the said suit, the main plea of the contesting defendants was that during the life time of Bansidhar, he had made a partition in metes and bounds between his sons and later Bansidhar lived jointly with Choukheylal. The suit, as brought, comprised those properties which had been allotted to the share of, and were the self-acquired properties of Choukheylal and that there could not be a second partition of the same properties. All these contentions were negatived and a decree for partition was maintained.

6. To get away from the effects of the said decree, the seven plaintiffs who are the minor sons of defendants No. 8, 9 and 10 have brought the present suit alleging that the partition decree was obtained by fraud and collusion and prejudice to the plaintiffs was caused by bringing into hotchpot those properties of Choukheylal which belonged to him separately and these others which fell to his share on the partition having, been made by Bansidhar in his life-time between his sons.

7. The defendants denied all these allegations and inter alia contended that the decree in the partition suit was binding on the plaintiffs and had the force of res judicata; that there was no fraud or collusion practised or made in getting the partition decree; that no prejudice was caused to the plaintiffs and inasmuch as no material particulars of the alleged fraud or collusion were given by the plaintiffs, the plea could not be considered at all.

8. The trial Court tried to obtain particulars of fraud from the plaintiffs by examining the counsel for the plaintiffs on 14-8-1956 but he only stated that the particulars of fraud as alleged were already given in paragraphs 6 and 7 of the plaint. The trial Court then heard arguments with regard to the issue of res judicata and dismissed the plaintiffs suit after holding that the present suit was barred on the principle of res judicata. Hence, this appeal.

9. Shri R.K. Pandey, learned counsel for the plaintiff-appellants, conceded before us that the pleas of fraud and collusion were not made out from the allegations contained in the plaint, and therefore, he rested his case on the plea of prejudice having been caused to the minor plaintiffs by