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Partition of ancestral property and business-One of the parties a minor at the time of partition-Partition-If could be re-opened when minor became a major.

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PETITIONER:
SUKHRANI (DEAD) BY L.RS. & ORS.

 Vs.

RESPONDENT:
HARI SHANKER & OTHERS

DATE OF JUDGMENT12/04/1979

BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SHINGAL, P.N.

CITATION:
 1979 AIR 1436 1979 SCR (3) 671
 1979 SCC (4) 463
 CITATOR INFO :
 D 1988 SC1531 (185)

ACT:
 Partition of ancestral property and business-One of the
parties a minor at the time of partition-Partition-If could
be re-opened when minor became a major.

HEADNOTE:
 The plaintiff's father and the fifth defendant were
brothers. During his minority, the plaintiff filed a suit
alleging that the business which his father and uncle were
doing was ancestral in that it was being carried on with the
capital given by his grandfather, that on the death of his
grandfather his uncle proposed to his father for a nominal
partition of the business and other family assets to avoid
income tax, that in so doing he took two-thirds share in the
business as well as in other assets but gave only one-third
to his father and that lastly the partition, even if true,
was "unequal, unfair and unconscionable." He further alleged
that the partition did not bind the interest of the minor
plaintiff and his minor brothers.
 During the pendency of the suit a reference was made to
arbitration. The arbitrators gave an award. But that award
was impugned by the defendants alleging that it was given
without any enquiry and without giving the parties a chance
to adduce evidence and that the arbitrators had no
jurisdiction to reopen the partition. The trial court set
aside the award. The plaintiff's appeal against this
decision of the trial court was dismissed by the High Court
holding that there was an error of law on the face of the
award because the arbitrators had found that there was
neither fraud nor misrepresentation and that unequal shares
had been accepted voluntarily and yet had reopened the
partition.
 After remand the trial judge found that the business
was not ancestral but was only a joint business and that
there was a complete partition of the joint family property,
and that there was neither fraud nor misrepresentation in
bringing about the partition. The trial court however
observed that though the plaintiff's father voluntarily
agreed to accept one-third share, the partition of the
business was "unequal and unconscionable." It, however,
dismissed the suit on the ground that the business was not
ancestral and therefore the plaintiff had no right to reopen
the partition.
 On appeal by the plaintiff the High Court found that
the business being ancestral the sons of the two brothers
acquired interest by birth and that so far as the partition
was concerned there was no fraud or undue influence
vitiating the partition. It, however, affirmed the trial
court's view that one-third share given to the plaintiff's
father was unfair and prejudicial to the interests of the
minors.
 In appeal to this Court the defendants contended that
the partition could not be reopened by the plaintiff because
he and his brothers were represented in the partition by
their father and there was no allegation of fraud or
misrepresentation.
672
 Dismissing the appeal, the Court,
^
 HELD : 1. It is not the practice of this Court to
interfere with findings of fact arrived at by the High Court
except to prevent gross miscarriage of justice. [676 B]
 In the instant case there is no justifiable ground to
go behind the findings of fact. [676 C]
 2. It is well established that simply because a matter
has been decided at an earlier stage by interlocutory order
and no appeal has been taken therefrom or no appeal did lie,
a higher court is not precluded from considering the matter
again at a later stage of the same litigation. The
correctness of an order of remand passed by the High Court
which was not questioned at that time by filing an appeal in
the Supreme Court can nevertheless be challenged later in
the Supreme Court in the appeal arising out of the final
judgment pronounced in the action. [676 E-F]
 Satyadhan Ghosal & Ors. v. Smt. Deo Rajan Debi & Anr.
[1960] 3 SCR 590, Jasraj Indusingh v. Hemraj Multan Chand
[1972] 2 SCR 973, Margaret Lalita v. Indo Commercial Bank
Ltd., AIR 1979 S.C. 102, Arjan Singh v. Mohindra Kumar &
Ors. [1964] 5 SCR 946; referred to.
 Where an application under Order IX, r. 7 was dismissed
and an appeal was filed against the decree in the suit in
which the application was made, the propriety of the order
rejecting the reopening of the proceeding might, without
doubt, be canvassed in the appeal and dealt with by the
appellate court. [676 G]
 In the present case the same principle applies and the
parties could challenge in this Court in the appeal against
the final judgment in the suit any finding given by the High
Court at the earlier stage in the suit when the award made
by the arbitrators was set aside and the suit thrown open
for trial. [676H, 677A]
 3. Even though there was no fraud, misrepresentation or
undue influence a partition could be reopened at the
instance of a minor coparcener, despite the fact that his
branch was represented by his father at the partition, if
the partition was unfair or prejudicial to the interest of
the minor. The entire partition need not be reopened if the
partition was unfair in regard to a distinct and separable
part of the scheme of partition. In such an event the
reopening of the partition could be suitably circumscribed.
[677 G-H, 678 A]
 Ratnam Chettiar & Ors. S. M. Kuppuswami Chettiar & Ors.
Air 1976 S.C. 1 applied.

JUDGMENT:
 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 168 of
1969.
 Appeal by Special Leave from the Judgment and Decree
dated 31-1-1968 of the Madhya Pradesh High Court in First
Appeal No. 80/64.
 I. P. Naik, S. L. Jain, Miss M. Gupta and M. S. Gupta
for the Appellant.
 B. D. Sharma for the Respondents.
673
 The Judgment of the Court was delivered by
 CHINNAPPA REDDY, J.-The legal representatives of the
fifth defendants 6 to 15 in Civil Suit No. 17-A of 1957 in
the Court of Additional District Judge, Narsinghpur are the
appellants in this appeal by special leave. Mannulal (5th
defendant) and Rajaram (1st defendant), both of whom died
during the pendency of the suit, were brothers. They were
the sons of Pusau. The plaintiff, a son of Rajaram and a
minor on the date of the institution of the suit, filed the
suit for partition and separate possession of a one eighth
share in the properties mentioned in schedule 'A' of the
plaint and also for an account from defendants 5 to 8 of the
assets and income of the business, "Mannulal Lakhanlal". It
was alleged in the plaint that with the capital given to
them by their father, Pusau, Mannulal and Rajaram started
the business of manufacturing Bidis. After the death of
Pusau in 1936 the business was continued by the two
brothers. In 1948 Mannulal represented to Rajaram that in
order to avoid income tax it was necessary that there should
be a nominal partition and that the joint family business
should be converted into a partnership business. Accordingly
the firm "Mannulal Lakhanlal" was registered under the
Partnership Act. Mannulal's share was shown as 10 Ans. 8 ps.
in a rupee while Rajaram's share was shown as 5 Ans. 4 ps.
In 1953 Babulal and Sunderlal, sons of Mannulal were also
shown as partners. The share of Mannulal was reduced to 5
Ans. 4 ps. and the share of Babulal and Sunderlal was shown
as 5 Ans. 4 ps. All this was done nominally with a view to
avoid income-tax. The houses belonging to the family were
also divided. Rajaram was given one-third share and Mannulal
took two-thirds share. The partition of ancestral property
and business between the two brothers Rajaram and Mannulal,
even if true, was "unequal, unfair and unconscionable". The
partition and the formation and dissolution of the firm did
not bind the interest of the minor plaintiff and all his
brothers. It was further alleged in the plaint that Mannulal
promised Rajaram at the time of the fictitious partition
that he would be given his half share when a real partition
was made. It was on those allegations that the plaintiff, a
minor, represented by his next friend Harchand filed the
suit, out of which the appeal arises, for the reliefs
already mentioned. The suit was contested by Mannulal and
his sons who pleaded that the business was not joint family
business and that it was a purely partnership business. The
allegations that the partition was nominal and that the
formation and dissolution of the partnership were nominal,
were denied. It was pleaded that there was a complete
disruption of the family on 31st March, 1948. The partition
was not unfair. After the partition the two brothers decided
to run the Bidi manufacturing business in partnership, with
Rajaram taking a share of 5 Ans. 4 ps. and
674
 Mannulal taking a share of 10 Ans. 8 ps.
 During the pendency of the suit a reference was made to
arbitration and the Arbitrators gave an award under which it
was directed that a sum of Rs. 12,000/- was to be paid to
each of the 2 minor sons of Rajaram to equalize the shares
of the two branches. The contesting defendants filed an
application to set aside the award claiming that the
Arbitrators had given their award without any enquiry and
without giving the parties a chance to adduce evidence. It
was also claimed that the Arbitrators had found that the
earlier partition was not fraudulent and that it was also
not the result of any misrepresentation and on that finding
the Arbitrators had no jurisdiction to reopen the partition.
The Trial Court set aside the award on the ground that the
Arbitrators had made the award without any enquiry and
without giving the parties a chance to adduce evidence. The
plaintiff preferred an appeal to the High Court. The appeal
was dismissed by the High Court on 10th January, 1962. The
High Court upheld the finding of the Trial Court that the
award was vitiated as it was made without enquiry and
without opportunity being afforded to the parties to adduce
evidence. The High Court also found that there was an error
of law on the face of the award inasmuch as the Arbitrators
had found that there was neither fraud nor misrepresentation
and that unequal shares had been accepted voluntarily and
yet had reopened the partition. It was observed that this
was contrary to law as the plaintiff and his other minor
brother were duly represented by their father Rajaram.
 Thereafter, consequent to the setting aside of the
award, the suit proceeded to trial. The plaintiff attained
majority during the pendency of the suit and elected to
continue the suit. Among the witnesses examined on behalf of
the plaintiff was Rajaram. Mannulal, the 5th defendant, did
not step into the witness box and he also objected to answer
the interrogatories which were sought to be served on him.
The learned Trial Judge found that the business was not
ancestral business but only a joint business and that there
was a complete partition of the joint family property and
the Bidi business on 31st March, 1948. There was neither
fraud nor misrepresentation practised on Rajaram to bring
about the said partition. The learned Trial Judge, however,
observed that though Rajaram voluntarily agreed to accept
one third share only, the partition of the joint business
appeared to be 'unequal, unfair and unconscionable'. The
suit was, however, dismissed in view of the finding that the
business was not ancestral business, and the plaintiff,
therefore, had no right to reopen the partition on the
ground that the partition of the joint business was
'unequal, unfair and unconscionable'. The plaintiff
preferred an appeal to the High Court. The High Court found
that the oral evidence adduced on behalf of the plaintiff
which
675
was practically unrebutted by the defendants and the
documentary evidence including the deed of partition and the
deed of partnership clearly established that the business of
"Mannulal Lakhanlal" was ancestral business in which the
sons of Mannulal and Rajaram acquired interest by birth. The
High Court also found that there was no fraud or undue
influence vitiating the partition. The High Court, however,
affirmed the finding of the Trial Court that the partition
of the joint family business resulting in the formation of a
partnership in which Mannulal took 10 Ans. 8 ps. share and
Rajaram took 5 Ans 4 ps. share was unfair and prejudicial to
the interests of the minor sons of Rajaram. On those
findings the High Court granted a decree in favour of the
plaintiff for an account of his one eighth share of the Bidi
business upto 30th November, 1955, on which date the
partnership business of which Rajaram was a partner was
dissolved. It was also directed, that a sum of Rs. 5,000/-
representing one eighth of the amount which had already been
received by Rajaram should be adjusted when accounts were
taken to determine the amount to which the plaintiff was
entitled. The contesting defendants have preferred this
appeal by special leave of this Court.
 The learned counsel for the appellants submitted that
the finding of the High Court in the proceeding to set aside
the award to the effect that the partition could not be
reopened since there was no fraud or misrepresentation and
since unequal shares had been voluntarily accepted was
binding on the parties at all subsequent stages of the suit.
He pointed out that, in any event, on the facts of the
present case, the plaintiff and his brothers were
effectively represented in the partition by their father
Rajaram and in that situation the partition could not be
reopened by the plaintiff on the mere ground of equality of
shares, in the absence of fraud or misrepresentation. He
further questioned the findings of the High Court that the
business was ancestral and that the partition was unfair. In
support of his contentions the learned counsel relied upon a
passage from N. R. Raghavachariar's Hindu Law (5th Edn. p.
428). He also drew our attention to Balkishan Das & Ors. v.
Ram Narain Sahu & Ors.(1) on the other hand the learned
counsel for the respondent urged that an erstwhile minor
coparcener could always seek to reopen a partition on
attaining majority if he could show that it was unfair or
prejudicial to his interest. He also contended that the
decision of the High Court in the proceeding to set aside
award would not be binding on this Court at a later stage of
the same suit and that it was open to him to challenge in
this Court the earlier finding of the High Court. The
learned counsel placed reliance on Ratnam
676
Chettiar & Ors. v. S. M. Kuppuswami Chettiar & Ors(1) and
Jas Raj Indu Singh v. Hem Raj Multan Chand.(2)
 The findings of fact arrived at by the High Court are:
(1) the business was ancestral, (2) the partition was not
vitiated by fraud or misrepresentation and (3) the partition
was unfair and prejudicial to interests of the minor sons of
Rajaram in so far as it related to the definition of shares
in the partnership business. Now, it is not the practice of
this Court to interfere with findings of fact arrived at by
the High Courts except to prevent gross miscarriages of
justice. We find no justifiable ground to go behind these
findings of fact and we, therefore, proceed to consider the
questions raised in the appeal on those basic findings.
 It is true that at an earlier stage of the suit, in the
proceeding to set aside the award, the High Court recorded a
finding that the plaintiff was not entitled to seek
reopening of the partition on the ground of unfairness when
there was neither fraud nor misrepresentation. It is true
that the plaintiff did not further pursue the matter at that
stage by taking it in appeal to the Supreme Court but
preferred to proceed to the trial of his suit. It is also
true that a decision given at an earlier stage of a suit
will bind the parties at later stages of the same suit. But
it is equally well settled that because a matter has been
decided at an earlier stage by an interlocutory order and no
appeal has been taken therefrom or no appeal did lie, a
higher Court is not precluded from considering the matter
again at a later stage of the same litigation (vide
Satyadhan Ghosal v. Smt. Deorajan Devi & Anr.(3). So, it has
been held that the correctness of an order of remand passed
by the High Court which was not questioned at that time by
filing an appeal in the Supreme Court could nevertheless be
challenged later in the Supreme Court in the appeal arising
out of the final judgment pronounced in the action (vide
Jasraj Indu Singh v. Hem Raj Multan Chand (supra) and
Margaret Lalita v. Indo Commercial Bank Ltd.(4) In Arjun
Singh v. Mohindra Kumar & Ors.(5) it was held that where an
application under Order IX, Rule 7 was dismissed and an
appeal was filed against the decree in the suit in which the
application was made, the propriety of the order rejecting
the reopening of the proceeding might without doubt, be
canvassed in the appeal and dealt with by the appellate
Court. In our view the same principle applies in the
677
present case and the parties can challenge in this Court in
the appeal against the final judgment in the suit any
finding given by the High Court at the earlier stage in the
suit when the award made by the arbitrators was set aside
and the suit thrown open for trial.
 The only question therefore, requiring our
consideration is whether the partition in so far as it
related to the business could be reopened on the sole ground
that it was unfair and prejudicial to the interest of the
minor, when there was no fraud or misrepresentation. In N.
R. Raghavachariar's Hindu Law (5th Edn.), the learned author
has said at page 428:
 "Ordinarily where a partition has been entered
 into by adult members of a joint family, each of them
 having minor sons, the minors are represented by their
 respective fathers in the partition, and it is not open
 to any of them to challenge the validity of the
 partition arrangement except where it is alleged and
 provided that there has been fraud vitiating the
 transaction and resulting in inequity and obviously
 smaller share having been allotted to a particular
 adult member who represented his minor son. The mere
 fact that outwardly or apparently the shares appear to
 be unequal is no ground for reopening the same at the
 instance of the minor sons of an adult member who was a
 party to the partition, because in a partition
 arrangement so many factors enter into the reckoning
 with reference to the proper shares to be allotted and
 unless it can be distinctly shown that there had been
 an element of overreaching or fraud taking advantage of
 the ignorance or incapacity or other disqualification
 of a particular member, the partition should rarely be
 reopened".
 All that we need say is that the learned author has not
referred to any decided case in support of what he has said,
but the matter is now no longer res integra. In Ratnam
Chettiar & Ors. v. S. M. Kuppuswami Chettiar & Ors. (supra)
an identical question arose and it was held that even though
there was no fraud misrepresentation or undue influence, a
partition could be reopened at the instance of a minor
coparcener, despite the fact that the branch was represented
by his father at the partition, if the partition was unfair
or prejudicial to the interest of the minor. It was also
held that the entire partition need not be reopened if the
partition was unfair in regard to a distinct
678
and separable part of the scheme of partition. In such an
event the reopening of the partition could be suitably
circumscribed. In the light of the principles laid down in
Ratnam Chettiar & Ors. v. S. M. Kuppuswami Chettiar & Ors.
(supra) this appeal is dismissed with costs.
N.K.A. Appeal dismissed.
679

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