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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