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TMI Blog1979 (4) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 ances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 represente ..... X X X X Extracts X X X X X X X X Extracts X X X X
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