Case: Sukhrani (Dead) By L.Rs. &amp; Ors Vs. Hari Shanker &amp; Others

also contended that the decision of the High Court in the proceeding to set aside the 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 Chettiar v. S. M. Kuppuswami Chettiar ((1976) 1 SCC 214 : AIR 1976 SC 1 : (1976) 1 SCR 363) and Jasraj Inder Singh v. Hem Raj Multar Chand ((1977) 2 SCC 155 : (1977) 2 SCR 973 , 981 : AIR 1977 SC 1011 ). 5. The finding 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 Court except to prevent gross miscarriages of justice. We find no justifiable ground to go behind these findings of fact we, therefore, proceed to consider the questions raised in the appeal on those basic findings. 6. 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 nor misrepresentation. It is true that the plaintiff did not further pursue the matter at the 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 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 Satvadhvan Ghoshal v. Sm. Deorajin Debi ((1960) 3 SCR 590 : AIR 1960 SC 941 ). 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 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. ((1979) 2 SCC 396 : AIR 1979 SC 102 )). In Arjun Singh v. Mohindra Kumar ((1964) 5 SCR 946 , 960 : AIR 1964 SC 993 ) 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 appellant Court. In our view the same principle applies in the 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. 7. The only question therefore, requiring our consideration in whether the partition in so far so 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. Raghavachariars Hindu Law (5th Edn.), the learned author has said at page 428 : Ordinarily where a partition has been entered into by adult members of joint family, each of them having minor sons, the minors a 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 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 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 clement of overreaching or fraud taking advantage of the ignorance or in capacity or other disqualification of of particular member the partition should rarely be reopened. 8. All that we need saw is that he 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 v. S. M. Kuppuswami Chettiar (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 his branch was represented by his farther 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 and separable part of the scheme of partition. In such an event the reopening of the partition could be suit ably circumscribed.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. The finding 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 Court except to prevent gross miscarriages of justice. We find no justifiable ground to go behind these findings of fact we, therefore, proceed to consider the questions raised in the appeal on those basic findings6. 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 nor misrepresentation. It is true that the plaintiff did not further pursue the matter at the 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 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 Satvadhvan Ghoshal v. Sm. Deorajin Debi ((1960) 3 SCR 590   : AIR 1960 SC 941  ). 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 arising out of the final judgment pronounced in the action8. All that we need saw is that he 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 v. S. M. Kuppuswami Chettiar (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 his branch was represented by his farther 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 and separable part of the scheme of partition. In such an event the reopening of the partition could be suit ably circumscribed.