ivil 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 section Nariman A Subba Rao R V Pillai and P Ramaswami for the appellants
M Natesan P section Srisailam and M section Narasimhan for Lrs
Of respondent No 1 and respondents 2 and 3
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 section M Kuppuswami Chettiar defendant No 1 and section 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 DW 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 ie 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 section M Kuppuswami Chettiar hereinafter referred to as SMK 
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 section M Ranganathan Chettiar would be hereinafter referred to as SMR  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 section 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 SMK and SMR 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 10000 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 were not pressed before us
The suit was resisted by defendant No 1 SMK 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 SMR 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 25th share of Rs 17700
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 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 25th of Rs 17700 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 110274 2 6 whereas defendant No 5 was given properties worth Rs 90142 4 0 there being a difference of about Rs 20000odd
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 expert
Learned counsel for the respondents further submitted that there is no reliable evidence to show that there was any cash deposits of Rs 65000 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 380 acres and has been valued at Rs 4000 
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 11000 
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 14000 
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 1650 
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
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 96000 
Item 4 of Sch
A is a house and site in Ramanathapuram and has been valued at Rs 7000 because it was purchased in 1938 for a sum of Rs 5650 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 7000 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 7000 
Item No 5 of Sch
A which was allotted to defendant No 1 has been valued at Rs 2300 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 2100 
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 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 12517 13 0 for defendant No l and Rs 12000 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 DW 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 110274 2 6 defendant No 5 got properties only worth Rs 90142 4 0 there being a clear disparity of Rs 10000 because the share of each of the two defendants would be Rs 1002081 
On the defendant No 1 s own documents therefore it is clear that a loss of Rs 10000 was caused to defendant No 5 in the year 1940 and the share of the plaintiffs in this loss would be 25th ie about Rs 4000 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 65000 which was a cash deposit alleged to have been kept in the safe and out of which Rs 10000 were agreed to be given to the mother of the two brothers and the rest viz Rs 55000 were to b divided between the two brothers each defendant getting Rs 27500 
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 section M K section M R 1 2 3 4 5 6 Thanichontham 65000 55000 27500 27500 Belonging exclusively Scored out in pencil
This cash amount of Rs 65000 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
DW 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 DW 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 DW 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 65000 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 265116 which completely demolishes the case of defendant No 1 and the explanation given by DW 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 Rs65000 
One of the circumstances was that according to the evidence of defendant No 5 the amount of Rs 65000 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
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 65000 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 65000 has been proved and if this amount would have been available to defendant No 5 then the plaintiffs would have got 25th share of Rs 55000  Rs 10000 reserved for the mother viz Rs 27500  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 418 ie it was Rs 88 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 10000
In lieu of the shares of other Mills defendant No 5 took a cash amount of Rs 13000 as would appear from Ext
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 DW 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 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
vs Janaki Ammal and Ors1 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 vs Ganesh Vithal 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
vs 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 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 vs Sispal Singh and Ors1 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  vs Da Na  Va   Ors2 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 vs Rama3 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 10000 to which must be added Rs 27500 which we have discussed above
Thus the total disparity comes to Rs 37500 and the share of the minor plaintiffs would be 25th which comes to Rs 15000 
This amount of Rs 15000 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 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 15000 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 46500 
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 46500 in favour of the plaintiffsappellants 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
VPS Appeal partly allowed


Summary:
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 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 25th share of Rs 17700
In appeal to this court passing a decree for a sum of Rs 46500 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 2a But a perusal of the schedules to the partition deed relating to movable properties shows an ex facie disparity of about Rs 10000
874B b Further the evidence disclosed that a sum of Rs 55000 with defend ant 1 was agreed upon between the brothers to be divided later but this 7 1127 SCI75 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 46500
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 vs Seogeni Rai and Jagernath
556 followed
Devarain and ors
vs Janaki Ammal and Ors
CA No 2298 of 1066 dated r March 20 1967 Lal Bahadur Singh vs Sispal Singh and ors
TLR 14 All 498 Chanvira Pa  vs Da Na  Va   ors
ILR and Maruti vs Rama ILR referred to