FAZL ALI - (1.) THIS is the plaintiffs' appeal against the judgment of the High Court of Madras dated 22/11/1963 by certificate. 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 plaintiff, who is defendant No. 5 and defendant No. 1, the elder brother of defendant No. 5. It appears that as far back as 10/05/1940 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 10/05/1940. At the time when the partition was made plaintiffs Nos. 2 to 4 were minors and defendant No. 3 was also 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-1. which appears 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 12/04/1940 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 defendant No 1 and those contained in Sch. 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 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 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 he 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 practicing 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. We might mention at the outset that Mr. F. S. 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 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. 10,000.00 from the cash deposit which is said to have been given to the mother of defendants 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. The suit was resisted by defendant No, 1 S.M. K. and his minor 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 S.M.R. were also minors at the time when the suit was filed but plaintiff No. 2 attained majority on 3/10/1958 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 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 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.
(3.) THE Trial Court framed as many as 18 issues and after considering the oral and documentary evidence produced before it, it held that so far as the partition of the immovable properties was concerned which was done by a separate 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 reopen 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 repartition of the movable properties and directed the appointment of a Commissioner to go into the valuation of the assets sought to be repartitioned. 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 22/11/1963 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. 17,700.00. The plantiffs alone have filed the present appeal against the judgment and decree of the High Court after obtaining a certificate from that Court.;