Case: Ratnam Chettiar &amp; Ors Vs. S. M. Kuppuswami Chettiar &amp; Ors

The appeal arises out of a partition suit filed by plaintiffs Nos. 1 to 4 for cancellation 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 10, 1940 the two brothers, namely S. M. Kuppuswami Chettiar defendant No. 1 and S. M. Ranganatham Chettiar defendant No. 5, 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 moveable properties were divided between the two brothers voluntarily through the aid and assistance of DW 3 K. Narayanaswami who was the family auditor of defendant No. 1 and was is friend and advisor. The partition deed with respect to the immovable properties is Ext. B-1 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 moveable 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 - moveables mentioned in Schedule A were allotted to defendant No. 1 and those contained in Schedule B were allotted to the share of defendant No. 5.2. The plaintiffs case was that the two brothers who were members of the undivided Hindu family along with the plaintiffs and other minor coparceners betrayed the interests of the minors and the division made between them was bother unjust and unfair and had the effect of depriving the minors of their legal shares in the properties the lions share having fallen to the lot of elder brother defendant No. 1 S. M. Kuppuswami Chettiar hereinafter referred to as S. M. K. 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 accordingly accepted any share that was allotted to him without any objection. Defendant No. 5 S. M. Ranganathan Chettiar would be hereinafter referred to as S. M. R. 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. 1 by taking advantage of the weakness of the plaintiffs father.3. We might mention at the outset that Mr. F. S. Nariman the learned 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 effected between the two brothers S. M. K. and S. M. R. was at 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. 10, 000 from the cash deposit which is said to have been given to the mother of defendants Nos. 1 and 5 but this claim was not pressed before us in the course of the arguments. Other minor claims which were also made before the trial Court were not pressed before us.4. The suit was resisted by defendant No. 1 S. M. K. and his major sons defendants Nos. 1 and 4 and a minor son defendant No. 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 S. M. R. 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 Judge, 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 Nos. 1 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 moveable 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.5. 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 moveable properties was concerned which was done by a separate document and was clearly severable from the partition of the moveable properties, the partition was neither unjust nor unfair so as to entitle the minors to reopen the partition after a long period. The learned trial Judge, however, was of the opinion that so far as the partition of moveable properties was concerned it was ex facie unjust and unfair and the plea of the plaintiffs for reopening the same must succeed. The trial Court accordingly passed a preliminary decree for repartition of the moveable properties and directed the appointment of a Commissioner to go into the valuation of the assets sought to be repartitioned.6. 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 moveable 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, Coimbatore, 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 2/5th share of Rs. 17, 700. The plaintiffs alone have filed the present appeal against the judgment and decree of the High Court after obtaining a certificate from that Court.

Reasoning:
It would appear from the findings arrived at by the two courts that defendant No. 1 was undoubtedly an honest man and defendant No. 5 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 has 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 then 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 plaintiffs father defendant No. 5 was a shrewd businessman and after his elder brother had suffered from some illness, he was carrying on the business of the family a few years before the partition. Both the parties were assisted by an auditor Mr. K. Narayanaswami 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 Rs. 17, 700.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 injustice or was detrimental in any way to the interests of thewould 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.partition.11. It is a well-settled practice of this Court not to interfere with a concurrent finding of fact given by the two courts below in the absence of any extraordinary or special reasons. In the instant case we hold the finding of the High Court as well as of the trial Court is 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.12. 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. 12, 547-13-0 for defendant No. 1 and Rs. 12, 000 for defendant No. 5, 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 bewill appear from a plain examination of the two schedules that whereas defendant No. 1 admittedly got properties worth Rs. 1, 10, 274-2-6 defendant No. 5 got properties only worth Rs. 90, 142-4-0 there being a clear disparity of Rs. 10, 000 because the share of each of the two defendants would be Rs. 1, 00, 208. On the defendant No. 1 own documents, therefore, it is clear that a loss of Rs. 10, 000 was caused to defendant No. 5 in the year 1940 and the share of the plaintiffs in this loss would be 2/5th i.e. about Rs. 4, 000 which would swell into a large amount if we add interest for all these 35the Subordinate 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. 65, 000 was scored out, then the total would be Rs. 2, 00, 116 in Ext. A-2, but the total shown in pencil in Ext. A-2 is Rs. 2, 65, 116 which completely demolishes the case of defendant No. 1 and the explanation given by DW 3 that the entry was made due to somecourts 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 Rs. 65, 000. One of the circumstances was that according to the evidence of defendant No. 5 the amount of Rs. 65, 000 was taken out from the safe and counted in the presence of defendants Nos. 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 theperusal 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 considerations. 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 businessman 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 undoubtedly raised objection at any time before the suit. This conduct 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. 65, 000 he kept quiet which is quite in consonance with the 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 every 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. 65, 000 has been proved and if this amount would have been available to defendant No. 5, then the plaintiffs would have got 2/5th share of Rs. 55, 000 (Rs. 10, 000 being reserved for the mother) viz. Rs. 27, 500, as far back as 1940. The argument of Mr. Nariman on this point is, therefore, well-founded and mustis, 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 option 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 moveable properties, therefore, was correctly divided between theour opinion the present case falls within the ratio laid down by the decision cited above.18. Apart from that there are numerous authorities which have consistently 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.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 binding 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 interest 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 moveable 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 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. 10, 000 to which must be added Rs. 27, 500 which we have discussed above. Thus the total disparity comes to Rs. 37, 500 and the share of the minor plaintiffs would be 2/5th which comes to Rs. 15, 000. This amount of Rs. 15, 000 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. 15, 000, the interest calculated at this rate for 35 years from 1940 to 1975 would come to Rs. 31, 500. Thus the total amount payable to the plaintiffs comes to Rs. 46,is true that if this was the position the ratio of the decision in Devarajans 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 moveable 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 moveable properties has to be reopened.