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TMI Blog1975 (9) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... artition 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 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 divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision 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 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ₹ 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 pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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 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 ₹ 4,000/-. Item 2 is a similar land in village Kurichi which is self- cultivated and has been valued at ₹ 7000/-. Thus [he total value of items 1 and 2 of Sch. A comes to ₹ 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 ₹ 601/- per month has been fixed at ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs' father (5th defendant) acted against the interests of his sons 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 notiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in pencil. This cash amount of ₹ 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 ₹ 65,000/- was scored out, then the total would be ₹ 200116/- in-Ext. A-2, but the total shown in pencil in Ext. A-2 is ₹ 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 55,000/-, (Rs. 10,000/- reserved for the mother) viz. ₹ 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 ₹ 50 but the current price of the share at that time was ₹ 41/8/- i.e. it was ₹ 8/8/- below the paid-up value and the dividend paid on the share was only ₹ 9/- yearly. It was, therefore, suggested by counsel for the respondents that defendant No. 5 was given the choice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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