Full Judgment Text
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PETITIONER:
RATNAM CHETTIAR & ORS.
Vs.
RESPONDENT:
S. M. KUPPUSWAMI CHETTIAR & ORS.
DATE OF JUDGMENT18/09/1975
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
KRISHNAIYER, V.R.
CITATION:
1976 AIR 1 1976 SCR (1) 863
1976 SCC (1) 214
CITATOR INFO :
F 1979 SC1436 (3,7)
ACT:
Hindu Law-Partition-When may by reopened-Minor
coparceners -When partition binding on them.
HEADNOTE:
(1) A partition effected between the members of an
Hindu Undivided Family by their own volition and with their
consent cannot be reopened unless it is shown that it was
obtained by fraud, coercion, misrepresentation or undue
influence. In such a case. the Court should require strict
proof of facts, because, an act inter vivos cannot be
lightly set aside.
(2) When the partition is effected between the members
of the Hindu Undivided Family which consists of minor
coparceners it is binding on the minors also, if it is done
in good faith and in a bona fide manner keeping into account
the interests of the minors.
(3) But if the partition is proved to be unjust and
unfair and is detrimental to the interests of the minors the
partition can be reopened after any length of time. In such
a case, it is the duty of the Court to protect and safeguard
the interests of the minors and the onus of proof that the
partition was just and fair is on the party supporting the
partition.
(4) Where there is a partition of immovable and movable
properties, but the two transactions are distinct and
separable, or have taken place at different times, if it is
found that only one of these transactions is unjust and
unfair, it is open to the court to maintain the transaction
which is just and fair and to reopen the partition that is
unjust and unfair. [873D-874B]
In 1940, two brothers, defendants 1 and 5 partitioned
their movable and immovable properties by two separate
transactions. At that time defendant S had two sons who were
minors. They and their minor brothers filed a suit in 1952
for cancellation of the partition and for re-opening it on
the ground that the partition was unjust and unfair and had
the effect of depriving the minors of their legal shares in
the properties. The trial court passed a preliminary decree
for re-partition of the movable properties as it was ex-
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facie unjust and unfair and directed appointment of the
Commissioner to go into the valuation of the assets sought
to be partitioned while holding that the partition of
immovable properties was neither unjust nor unfair. In
appeal, the High Court agreed with the findings of the trial
court but set aside the direction of the trial court for the
appointment of Commissioner; quantified the value of the
disparity in the share of the plaintiffs and passed a decree
to the extent of 2/5th share of Rs. 17.700. In appeal to
this court, passing a decree for a sum of Rs. 46,500/- with
future interest in modification of the High Court’s decree,
^
HELD: (1) The division of immovable properties was just
fair and equal. The properties were not actually valued
according to the market rate and only a notional valuation
had been given in the partition deed; but, in view of the
detailed examination by the two courts of the facts
regarding capitalised value of the properties allotted to
the two brothers, it could not be said that the partition of
the immovable properties was either unfair or unjust. This
court will not interfere with concurrent findings of the
fact given by the courts below in the absence of any
extraordinary or special reasons. [868E-F; 869B-C]
2(a) But a perusal of the schedules to the partition
deed relating to movable properties shows an ex-facie
disparity of about Rs. 10,000. [874B]
(b) Further, the evidence disclosed that a sum of Rs.
55.000 with defend ant 1, was agreed upon between the
brothers to be divided later, but this
7-1127 SCI/75
864
amount was not included in the partition deed. Assuming that
defendant 5 had not taken any objection, since the amount
was very large, his Silence or his acquiescence in allowing
his elder brother to swallow the amount was not a prudent
act and has caused serious detriment to the interests of the
minors which he had to protect because. he and his minor
sons were member of an Hindu Undivided Family. [870H-871B]
(c) Taking these two sums into account and calculating
the plaintiff’s share in 1940 and adding interest thereon
till date of decree, the plaintiffs would be entitled to Rs.
46,500. [874D-E]
(d) The High Court was right in holding that it would
not be in the interest of the minors or. Of justice to order
the appointment of a Commissioner for re-opening the entire
partition when the shares of the plaintiffs are easily
ascertainable in terms of money and can be quantified.
[874C-D]
Bishunodeo Narain and v. Seogeni Rai and Jagernath.
[1961] S.C.R. 548. 556, followed. -
Devarain and ors. v. Janaki Ammal and Ors. C.A. No.
2298 of 1066 dated r March 20, 1967, Lal Bahadur Singh v.
Sispal Singh and ors. T.L.R. 14 All 498; Chanvira ’Pa’ v. Da
’Na’ ’Va’ & ors. I.L.R. 19 Bom. 593 and Maruti v. Rama
I.L.R. 21 Bom. 333. referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 685
Form the Judgment and order dated the 22nd November,
1963 of the Madras High Court in Appeal Nos 329 and 468 of
1959
F. S. Nariman, A. Subba Rao, R. V. Pillai and P.
Ramaswami, for the appellants.
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M. Natesan, P. S. Srisailam and M. S. Narasimhan, for
L.rs. Of respondent no. 1 and respondents 2 and 3.
The Judgment of the Court was delivered by .
FAZAL ALI, J.-This is the plaintiffs’ appeal against
the Judgment of the High Court of Madras dated November 22,
1963 by certificate. The appeal arises out of a partition
suit filed by plaintiffs Nos. 1 to 4 for concellation of
partition made between the father of the plaintiffs who is
defendant No. 5 and defendant No. 1 the elder brother of
defendant No. 5. It appears that as far back as May l, 1940
the two brothers, namely S. M. Kuppuswami Chettiar defendant
No. 1 and S. M. Ranganatham Chettiar defendant No. S, who
were originally members of Undivided Hindu Family
partitioned their shares by virtue of a registered partition
deed dated May 10, 1940. At the time when the partition was
made plaintiffs Nos. 2 to 4 were minors and defendant No. 3
was also a minor. Under the partition deed both immovable
and movable properties were divided between the two brothers
voluntarily through the aid and assistance of D.W. 3 K.
Narayanswami who was the family auditor of defendant No. 1
and was his friend and adviser. The partition deed with
respect to the immovable properties is Ext. B-l which
appears at pp. 243-248 of the Paper Book. Under the
partition deed two Lists were prepared itemising the
properties which were to go to the two brothers. The list of
properties is contained in Ext. B-115 of the Paper Book. As
regards the movable properties it appears that the partition
had taken place a month earlier i.e. On April 12, 1940 and
865
the partition deed is Ext. B-3, which consists of two
Schedules-Schedule A and Schedule B-movables mentioned in
Sch. A were allotted to the defendant No. 1 and those
contained in Sch, were allotted to the share of defendant
No. 5.
The plaintiffs’ case was that the two brothers who were
members or the Undivided Hindu Family along with the
plaintiffs and other minor coparaceners betrayed the
interests of the minors and the division made between them
was both unjust and unfair and had the effect of depriving
the minors of their legal shares in the properties the
lion’s share having fallen to the lot of elder brother
defendant No. 1 S. M. Kuppuswami Chettiar hereinafter
referred to as ’S.M.K.’. The plaintiffs? father who is
defendant No. 5 being a person of weak intellect did not
care to protect the interests of the minors and he
accordingly accepted any share that was allotted to him
without any objection. Defendant No. 5 S. M. Ranganathan
Chettiar would be hereinafter referred to as ’S.M.R.’
Plaintiffs also alleged that the partition was secured by
practising fraud and undue influence and by suppressing
large assets belonging to the family which were taken by
defendant No. I by taking advantage of the weakness of the
plaintiffs’ father.
We might mention at the outset that Mr. F. S. Nariman
the learned counsel for the appellants did not at all press
the plea of fraud and undue influence taken by the
plaintiffs before the Trial Court and confined his arguments
only to the allegation that the partition offered between
the two brothers S.M.K. and S.M.R. was on the very face of
it unjust and unfair and detrimental to the interests of the
minors. The plaintiffs also laid claim to a sum of Rs.
10,000/- from the cash deposit which is said to have been
given to the mother of defendants 1 & 5 but this claim was
not pressed before us ill the course of the arguments. Other
minor claims which were also made before the Trial Court
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were not pressed before us.
The suit was resisted by defendant No. 1 S.M.K. and his
major sons defendants 1 and 4 and a minor son defendant 3
who however attained majority during the pendency of the
suit before the Trial Court. We might also mention here
that plaintiffs Nos. 2 to 4 sons of S.M.R. were also minors
at the time when the suit was filed but plaintiff No. 2
attained majority on October 3, 1958 just about a month and
a half before the judgment in the suit was delivered by the
Subordinate Jude, Coimbatore. The defendants stoutly denied
the allegations made by the plaintiffs and averred that
there was absolutely no disparity in the division of the
properties, that no fraud’ or undue influence had been
practised, that the properties were divided between
defendants I and 5 with the explicit consent of defendant
No. 5 and that the division of the properties would show
that the partition was neither unjust nor unfair, both
parties having taken equal shares in the immovable and
movable properties. A number of other pleas was also raised
by the defendants, but it is not necessary for us to deal
with them in view of the points pressed before us by the
learned counsel for the appellants.
The Trial Court framed as many as 18 issues and after
considering the oral and documentary evidence produced
before it held that so far as the partition of the immovable
properties was concerned which
866
was done by sparate document and was clearly severable from
the partition of the movable properties, the partition was
neither unjust nor unfair so as to entitle the minors to re-
open the partition after a long period. The learned Trial
Judge, however, was of the opinion that so far as the
partition of movable properties was concerned it was ex
facie unjust and unfair and the plea of the plaintiffs for
re-opening the same must succeed. The Trial Court
accordingly passed a preliminary decree for re-partition of
the movable properties and directed the appointment of a
Commissioner to go into the valuation of the assets sought
to be re-partitioned.
Both the plaintiffs and the defendants filed separate
appeals before the High Court of Madras. The plaintiffs
filed an appeal before the high Court against that part of
the decree which dismissed their suit for re-opening the
partition of the immovable properties., while the defendants
filed an appeal against the decree of the Trial Court
directing reopening of the partition of movable properties
and thus decreeing the plaintiffs’ suit to that extent. The
High Court decided both the appeals by one common Judgment
dated November 22, 1963 and by upholding the findings of the
learned Subordinate Judge, Coimbator, the High Court made a
slight variation in the decree by setting aside the
directions of the Subordinate Judge for the appointment of a
Commissioner and by quantifying the value of the disparity
in the share of the plaintiffs the High Court passed a
decree to the extent of 2/5th share of Rs. 17,700/. The
plaintiffs alone have filed the present appeal against the
judgment and decree of the High Court after obtaining a
certificate from that Court.
Before going into the merits of the case, it may be
necessary to mention a few unique aspects of the present
case. It would appear from the findings arrived at by the
two courts that defendant No. 1 was undoubtedly an honest
man and defendant No. S the younger brother appears to be an
idealist-a person to whom the value and prestige of the
family was a consideration much above mundane monetary
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matters. Secondly, the partition between the two brothers
was voluntarily made about 35 years ago and the father of
the plaintiffs had most willingly and with good grace
accepted the partition and the shares that were allotted to
him. Thirdly, since a very long time had elapsed since the
partition took place, it would be well nigh impossible for
any court to determine the value of the assets, some of
which might have disappeared, others may be shrouded in
mystery, and for determining the rest the necessary data may
not be available. It appears to us to be too late in the day
in 1975 to appoint a Commissioner in order to go into a
situation which existed-in 1940 and the to pass a decree
which may result in a fresh spate of litigation for another
decade. It was possibly this consideration which weighed
with the High Court in quantifying the amount of the share
of the plaintiffs which they had suffered under the division
of the assets. Finally, the plaintiff’s father defendant No.
5 was a shrewd business and after his elder brother had
suffered from some illness, he was carrying on the business
of the family a few years in before the partition. Both the
parties were assisted by an Auditor Mr. K. Narayanswami in
effecting the partition by metes and bounds. In these
circumstances, therefore, there could be no question of
practising
867
any fraud or undue influence as alleged by the plaintiffs
and if the partition was unjust or unfair to the minors it
was merely because defendant No. 5 made an error of Judgment
with respect to some properties. Lastly, we have not been
able to find any material to justify the conclusion of the
High Court that the difference in the allotment of the
shares to the plaintiffs would be 2/5th of Rs. 17,700/-.We
shall deal with this point a little later and show that the
difference is much more.
Mr. Nariman learned counsel for the appellants
submitted two points before us. In the first place, he
assailed the partition of the immovable properties on the
ground that no valuation of the properties was fixed
according to the market value and that the plaintiffs were
not given any share in the agricultural properties. As
regards the movable properties it was argued that the
division was wholly unjust and unfair because the lion’s
share was taken by defendant No. 1 and the choice made by
defendant No. S the father of the plaintiffs was neither
wise nor prudent and was extremely detrimental to the
interests of the plaintiffs. As an instance of the
unfairness of the partition Mr. Nariman pointed out that a
comparison of Schedules A and of Ext. B-3 would show that
defendant No. 1 was allotted movable properties worth Rs.
1,10,274-2-6, whereas defendant No. 5 was given properties
worth Rs. 90,142-4-0 there being a difference of about Rs,
20,000/odd. He also pointed out that shares of Lakshmi
Textile Mills were allotted to defendant No. 1 which were
extremely valuable and gave very rich dividends, where as
defendant No. S was allotted the shares of Lakshmi Sugar
Mills which was one of the sick Mills running at a loss
whose dividends were insignificant. We shall consider this
contention raised by counsel for the appellants a little
later.
The learned counsel appearing for the respondents Mr.
Natesan, however, submitted that the present suit is
frivolous and has been filed only with a view to harass the
defendants and to re-open a partition which was both just
and equitable and which was entered by both the brothers
with their eyes open and with the aid of their financial
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expert. Learned counsel for the respondents, further
submitted that there is no reliable evidence to show that
there was any cash deposits of Rs. 65,000- as mentioned in
Sch. B, and if there was one it would have been divided on
the spot instead of being postponed to a future date.
Similarly it was submitted that so far as the shares are
concerned they were chosen by defendant No. S himself and
their valuation was equal.
As regards the immovable properties we find ourselves
in complete agreement with the arguments of the learned
counsel for the respondents that the partition of these
properties was fair and just and there is no material on the
record to show that the partition worked in any way
injustice or was detrimental in any way to the interests of
the minors; In this collection we might try to illustrate
our point from the findings of the Trial Court regarding the
valuation of the immovable properties divided between the
two; brothers. The partition of immovable properties Ext. B-
1 which appears at pp. 243 to 248 of the Paper Book consists
of to Schedules A & B. The Trial Court has, after careful
consideration of the evidence, very scientifically itemised
the properties
868
allotted to each of the brothers and the value of those
properties. For A instance, item 1 of Sch. allotted to
defendant No. 1 is a tank-fed nanja land is Kurichi village
measuring 3.80 acres and has been valued at Rs. 4,000/-.
Item 2 is a similar land in village Kurichi which is self-
cultivated and has been valued at Rs. 7000/-. Thus [he total
value of items 1 and 2 of Sch. A comes to Rs. 11,000/-. As
against this defendant No. 5 was allotted item 2 of Sch.
which on the basis of capitalised value at the rate of Rs.
601/- per month has been fixed at Rs. 14,000/-. Items 1 & 2
of Sch. A are the only agricultural properties possessed by
the family and the Trial Court has rightly pointed out that
whereas defendant No. 1 took the agricultural properties,
defendant No. 5 got urban properties not only of the same
value but of a higher value. Similarly item No. 3 of Sch. A
allotted to defendant No. 1 is a house in the Big Bazaar
Street and has been valued at Rs. 16,50/-. As against this
the family house in the Oppanakkara Street has been allotted
to defendant No. 5 whose value is much more than item No. 3
of Sch. A. The capitalised value of the family house in the
oppanakkara Street on the basis of rental of Rs. 700/- per
month would come to near about Rs. 96,000 . Item 4 of Sch. A
is a house and site in Ramanathapuram and has been valued at
Rs. 7,000/- because it was purchased in 1938 for a sum of
Rs. 5,650/- vide Ext. B-139 dated March 6, 1938. The learned
Subordinate Judge has roughly put the valuation of the said
house and site at Rs. 7,000/- in 194(). As against this item
3 allotted to defendant No. 5 is a shop building in the Big
Bazaar Street carrying a rental of Rs. 300/- per month at
the time of the partition whose capitalised value would be
Rs. 7,000/-. Item No. 5 of Sch. A which was allotted to
defendant No. 1 has been valued at Rs. 2,300/- representing
the purchase price of the property mentioned in Exts. B-140
to B-142. As against this item 4 of Sch. which has been
allotted to defendant No. 5 was purchased for a sum of Rs.
2,100/-. It would thus appear that the division of immovable
properties is just, fair and equal. It is true that the
properties were not actually valued according to the market
rate and that a notional valuation had been given in the
partition deed. But in view of the detailed examination by
the two Courts of the fact regarding capitalised value of
the properties allotted to the two brothers it cannot be
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said that the partition of immovable properties was either
unfair or unjust or in any way detrimental to the interests
of the minors. After considering the evidence., the Trial
Court found as follows:
"It is thus found from the available evidence that
there was no unfairness or inequality in the partition
of the immovable properties effected under Exhibit B-1
and that no ground exists for reopening that
partition."
The High Court upheld the findings of the Trial Court in
these words:
"Thus in regard to the division of the immovable
proper ties it is not possible for us to say that there
was unfairness or fraud or irregularity in the
allotment of the properties between the brothers.
The scheme of the division of the immovable
properties seems to us to be fair and we cannot say
that the plaintiffs’ father (5th defendant) acted
against the interests of his sons
869
or that the 1st defendant took any advantage of his
position as the eldest member of the family and
allotted to himself the best among the properties
available for division. We there fore confirm the
finding of the learned Subordinate Judge that the
partition of the immovable properties effected under
Exhibit B-1 is binding on the plaintiffs and that the
plaintiffs are not entitled to reopen the partition."
It is a well-settled practice of this Court not to
interfere with a con current finding of fact given by the
two Courts below in the absence of any extra-ordinary or
special reasons. In the instant case we hold that the
finding of the l High Court as well as of the Trial Count
based on a full and complete consideration of the evidence
both oral and documentary and an elaborate and meticulous
discussion of all the surrounding circumstances. We,
therefore do not feel inclined to interfere with this
concurrent finding of fact which is hereby affirmed.
We might state that the objection regarding the
properties not having been properly valued falls to the
ground when we find that instead of notional value mentioned
in the partition deed which is Rs. 12,517-13-0 for defendant
No. l and Rs. 12,000/- for defendant No. S the capitalised
value of the items allotted to the two brothers either on
the basis of their purchase price or on the basis of the
rent fetched by them is almost equal. The first contention
regarding the partition of immovable properties raised by
the learned counsel for the appellants being unfair and
unjust must therefore be overruled.
We now come to the question of the division of movable
proper ties. In this connection our attention was drawn by
Mr. Nariman to Ext. E-3 which is to be read along with the
pencil note of K. Narayana swami D.W. 3, who was the auditor
of Defendant No. 1 himself. Exhibit B-3 is the partition
deed of movable properties consisting of shares, deposits,
promotes, mortgage deeds and cash, particulars of which are
given in Schs. A & B. Movable properties mentioned in Sch. A
were allotted to defendant No. 1 and those mentioned in Sch.
B, were allotted to defendant No. 5 father of the
plaintiffs. It will appear from a plain examination of the
two schedules that whereas defendant No. 1 admittedly got
properties worth Rs. 1,10,274-2-6 defendant No. 5 got
properties only worth Rs. 90,142-4-0 there being a clear
disparity of Rs. 10,000/- because the share of each of the
two defendants would be Rs. 1,00,2081-. On the defendant No.
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1’s own documents, therefore? it is clear that a loss of Rs.
10,000/- was caused to defendant No. 5 in the year 1940 and
the share of the plaintiffs in this loss would be 2/5th i.e.
about Rs. 4,000/- which would swell into a large amount if
we add interest for all these 35 years. That apart the
learned counsel for the appellants has submitted that the
document Ext. B-3 deliberately omits to mention a sum of Rs.
65,000/- which was a cash deposit alleged to have been kept
in the safe and out of which Rs. 10,000/- were agreed to be
given to the mother of the two brothers and the rest, viz.
Rs. 55,000/- were to b divided between the two brothers,
each defendant getting Rs. 27,500/-. This is
870
undoubtedly proved by Ext. A-2 where these figures are
clearly mentioned. Entry No. l of Ext. A-2 runs thus:
Total Settlement S. M. K. S. M. R.
(1) (2) (3) (4) (5) (6)
Thanichontham
65,000 55,000 27,500
27,500
Belonging exclusively-
*Scored out in pencil.
This cash amount of Rs. 65,000/- is denied by defendant No.
1 and it is said that this amount might have been hidden
money which never came to the share of the parties. D.W. 3
K. Narayanaswami has positively admitted in his evidence
that he had made this entry in his on hand-writing but he
scored out this entry as the amount was not available. Both
the Suborclinate Judge, Coimbatore and the High Court have
accepted the explanation given by D.W. 3 Narayanaswami
although the explanation appears to us to be prima facie
false and unconvincing. Even assuming that this entry was
made due to some mistake and had to be scored out, we cannot
believe that a person of the expert knowledge and status of
D.W. 3 Narayanaswami Iyer the Auditor would forget to make a
corresponding correction in the total amount which is given
below the statement of account signed by him. If the amount
of Rs. 65,000/- was scored out, then the total would be Rs.
200116/- in-Ext. A-2, but the total shown in pencil in Ext.
A-2 is Rs 2,65,116/- which completely demolishes the case of
defendant No 1 and the explanation given by D.W. 3 that the
entry was made due to some mistake. The Courts below have
however, relied on a number of circumstances which are
purely of a speculative nature, in order to hold that the
plaintiffs have not been able to prove the existence of the
cash amount of Rs.65,000/-. One of the circumstances was
that according to the evidence of defendant No. 5 the amount
of Rs. 65,000/- was taken out from the safe and counted in
the presence of defendants 1 and 5 and yet defendant No. 5
did not care to divide it at that time into two equal parts,
nor did he insist on the same. Defendant No. S has, however,
given an explanation that as his elder brother wanted that
this money should be divided later he did not want to join
issue on the subject and trusted his elder brother. A
perusal of the evidence of defendant No. 5 clearly shows
that he is an extremely emotional sort of a person who
believes in the respect of the family above all
consideration. It is., therefore, not unlikely that
defendant No. 5 quietly accepted the advice of his elder
brother to divide the amount later on. It was however argued
by the learned counsel for the respondents that defendant
No. 5 was a shrewd business-man having managed the family
affairs for quite some time and if such a huge amount was
concealed from him by his elder brother he would have
undoubtely raised objection at any time before the suit.
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This conduct of defendant No. 5 cannot, however, put the
plaintiffs out of court. He had decided to abide by the
advice of his elder brother and if he thought that his elder
brother did not want to divide the amount of Rs. 65,000/- he
kept quiet which is quite in consonance with the
871
character of this man as revealed in his evidence and the
circumstances of the case. Assuming however that defendant
No. 5 did not take any objection, as the amount was very
huge the silence of defendant No. 5 or even his acquiescence
in allowing his elder brother to swallow this amount was not
a prudent act and has caused serious detriment to the
interests of the minors which he had to protect, because the
minors at that time were members of the Hindu Undivided
Family. In view of these circumstances, therefore, we are
satisfied that the plaintiffs’ case regarding the deliberate
suppression of the cash amount of Rs. 65,000/- has been
proved and if this amount would have been available to
defendant No. 5, then the plaintiffs would have got 2/5th
share of Rs. 55,000/-, (Rs. 10,000/- reserved for the
mother) viz. Rs. 27,500/-, as far back as 1940. The argument
of Mr. Nariman on this point is, therefore, well-founded and
must prevail.
The only other point that was stressed before us by the
learned counsel for the appellants was that the Trial Court
was right in ordering the appointment of a Commissioner for
going into the assets of the movable properties,
particularly the question of the shares of the Lakshmi
Mills. We are, however, unable to agree with this argument.
Mr. Natesan learned counsel for the respondents has drawn
our attention to some important documents to show that the
shares were equaly divided between defendants Nos. 1 and 5
and were actually chosen by defendant No. 5 with his eyes
open. Exhibit B-153 which is a share market report dated
April 5, 1940 shows that the paid up value of each share of
Lakshmi Sugar Mills was Rs. 50 but the current price of the
share at that time was Rs. 41/8/- i.e. it was Rs. 8/8/-
below the paid-up value and the dividend paid on the share
was only Rs. 9/- yearly. It was, therefore, suggested by
counsel for the respondents that defendant No. 5 was given
the choice to take the shares of the Lakshmi Mills or the
Lakshmi Sugar Mills and in view of the low market rate of
the Lakshmi chose to take the shares of the Lakshmi Sugar
Mills to the extent of Rs. 10,000/. In lieu of the shares of
other Mills defendant No. 5 took a cash amount of Rs.
13,000/- as would appear from Ext. B-3. It is true that the
shares of Lakshmi Textile Mills went up enormously a few
years later in view of the international war situation in
the continent but defendant No. 5 could not have foreseen
such a contingency and if he had made the choice which he
thought would be beneficial to the interests of the minors
his conduct would have been at best an error of judgment
which would not be sufficient to reopen the choice made by
him.
Mr Nariman, however, strenuously relied on the evidence
of D.W. 3 Narayanaswami Auditor which was to the effect that
he expressed great surprise when defendant No. 5 chose the
shares of Lakshmi Sugar Mills and in his opinion that was
his foolish act. This is, however, a matter of opinion but
the fact remains that the market report of the Lakshmi Mills
was not encouraging and therefore there was some
justification for defendant No. 5 for not opting for the
shares of the Lakshmi Mills. In these circumstances we hold
that so far as the shares of the various Mills were
concerned there was no unjust or unequal distribution
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between the parties. This item of movable properties,
therefore, was correctly divided between the parties.
872
Learned counsel for the respondents submitted that
taking a broad view of the whole case the Court should hold
that it was not a case of unfair or unjust partition,
because both defendant Nos. 1 and 5 were persons who had
shrewd business experience and had voluntarily accepted the
partition of the properties which was by and large equal.
The learned counsel relied on the decision of this Court in
Devarajan and Ors. v. Janaki Ammal and Ors(1) where this
Court observed as follows:
"Generally speaking, a partition once effected is
final and cannot be reopened on the ground of mere
inequality of shares, though it can be reopened in case
of fraud or mistake or subsequent recovery of family
property: [see Moro Vishvanath v. Ganesh Vithal (1873)
10 Bom. H.C.R. 444]. Further an allotment bona fide
made in the course of a partition by common consent of
the coparceners is not open to attack when the shares
are not absolutely equal, or are not strictly in
accordance with those settled by law. It is true that
minors are permitted in law to reopen a partition on
proof that the partition has been unfair and unjust to
them. Even so, so long as there is no fraud, unfair
dealing or over-reaching by one member as against
another, Hindu law requries that a bona fide partition
made on the basis of the common consent of coparceners
must be respected and is irrevocable:"
It was submitted that the evidence and circumstances of
the case clearly show that there was no inequality of shares
and the plea of fraud or mistake has not been accepted by
the courts and that on the whole the partition was bond
fide. It is true that if this was the position the ratio of
the decision in Devarajan’s case (supra) would undoubtedly
apply to this case. But this Court had taken care to point
out in these very observations which are underlined by us
that this rule did not apply to the minors who are
undoubtedly permitted in law to reopen the partition once it
is proved that the partition was unfair or unjust to them.
In view of the concurrent finding of fact of the two Courts
below that the partition of movable properties, excepting
those with respect to the shares, was unfair and unjust,
even according to the decision mentioned above the partition
with respect to the movable properties has to be reopened.
Moreover in an earlier decision of this Court in
Bishundeo Narain and Anr. v. Seogeni Rai and Jagernath it
was observed:
"It is well established that a minor can sue for
partition and obtain a decree if his next friend can
show that that is for the minor’s benefit. It is also
beyond dispute that an adult coparcener can enforce a
partition by suit even when there are minors. Even
without a suit, there can be a partition between
members of a joint family when one of the members is a
minor. In the case of such lastly mentioned
873
partitions, where a minor can never be able to consent
to the same in law, if a minor on attaining majority is
able to show that the division was unfair and unjust,
the Court will certainly set it aside."
In our opinion the present case falls within the ratio laid
down by the decision cited above.
Apart from that there are numerous authorities which
have sonsistently held that where a partition is unjust and
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unfair and detrimental to the interests of the minors the
partition would be reopened irrespective of the question of
bona fides. In Lal Bahadur Singh v. Sispal Singh and Ors.(1)
it was observed that even though the ground of fraud and
mistake failed, the partition which affected the interests
of the minor could be reopened. Similarly in Chanvira ’Pa’
v. Da ’Na’ ’Va’ & Ors.(2) a Division Bench of the Bombay
High Court held that a partition will be binding on the
minors only if it was just and legal, but if it was made and
finalised there being no means of testing the validity of
the assets the partition was not final. The same view was
taken in Maruti v. Rama(3)
Thus on a consideration of the authorities discussed
above and the law on the subject, the following propositions
emerge:
(1) A partition effected between the members of
the Hindu Undivided Family by their own
volition and with their consent cannot be
reopened, unless it is shown that the same is
obtained by fraud, coercion,
misrepresentation or undue influence. In such
a case the Court should require a strict
proof of facts because an act inter vivos
cannot be lightly set aside.
(2) When the partition is effected between the
members of the Hindu Undivided Family which
consists of minor coparceners it is bindig on
the minors also if it is done in good faith
and in bona fide manner keeping into account
the interests of the minors.
(3) Where, however a partition effected between
the members of the Hindu Undivided Family
which consists of minors is proved to be
unjust and unfair and is detrimental to the
interests of the minors the partition can
certainly be reopened whatever the length of
time when the partition took place. In such a
case it is the duty of the Court to protect
and safeguard the interests of the minors and
the onus of proof that the partition was just
and fair is on the party supporting the
partition.
(4) Where there is a partition of immovable and
movable properties but the two transactions
are distinct and separable or have taken
place at different times. If it is found that
only one of these transactions is unjust and
874
unfair it is open to the Court to maintain
the transaction which is just and fair and to
reopen the partition that is unjust and
unfair.
The facts of the present case, in our opinion, fall squarely
within propositions Nos. (3) and (4) indicated above.
In the instant case we find from a perusal of the two
schedules ’A’ and ’B’ of Ext. B-3 that there has been ex
facie a disparity of about Rs. 10,000/- to which must be
added Rs. 27,500/- which we have discussed above. Thus the
total disparity comes to Rs. 37,500/- and the share of the
minor plaintiffs would be 2/5th which comes to Rs. 15,000/-.
This amount of Rs. 15,000/- should have been available to
the minor plaintiffs as far back as 1940 when the partition
was made and they have been deprived of that amount ever
since. We find that in the peculiar facts and circumstances
of the case as already stated it will not be in the
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interests of the minors nor conducive in the interests of
justice to order the appointment of a Commissioner for
reopening the entire partition when the shares of the minor
plaintiffs are easily ascertainable in terms of money and
can be quantified. In these circumstances we think the best
course is to determine the money value of the share of the
plaintiffs and to pass a decree for the same which will
protect the minors from protracted litigation which might
follow the passing of a preliminary decree. This was the
approach made by the High Court but we do not agree with the
amount quantified by it. If we add interest at the rate of
6% per annum as prayed for in the plaint on the amount of
Rs. 15,000/-,the interest calculated at this rate for 35
years from 1940 to 1975 would come to Rs. 31500/-. Thus the
total amount payable to the plaintiffs comes to Rs. 46,500/-
.
We, therefore, allow the appeal in part and modify the
decree of the High Court to the extent that there will be a
decree for a sum of Rs. 46,500/- in favour of the
plaintiffs/appellants which represents their share of the
movable properties of which they were deprived of. The
plaintiffs would be entitled to future interest at the rate
of 6% per annum till payment. In the circumstances of the
case, there will be no order as to costs. This course, in
our opinion, safeguards the interests of the minors to give
them their just due and to protect them from a protracted
and fruitless litigation.
V.P.S. Appeal partly allowed.
875