The plaintiff's father and the fifth defendant were
brothers. During his minority, the plaintiff filed a suit
alleging that the business which his father and uncle were
doing was ancestral in that it was being carried on with the
capital given by his grandfather, that on the death of his
grandfather his uncle proposed to his father for a nominal
partition of the business and other family assets to avoid
income tax, that in so doing he took two-thirds share in the
business as well as in other assets but gave only one-third
to his father and that lastly the partition, even if true,
was "unequal, unfair and unconscionable." He further alleged
that the partition did not bind the interest of the minor
plaintiff and his minor brothers.
During the pendency of the suit a reference was made to
arbitration. The arbitrators gave an award. But that award
was impugned by the defendants alleging that it was given
without any enquiry and without giving the parties a chance
to adduce evidence and that the arbitrators had no
jurisdiction to reopen the partition. The trial court set
aside the award. The plaintiff's appeal against this
decision of the trial court was dismissed by the High Court
holding that there was an error of law on the face of the
award because the arbitrators had found that there was
neither fraud nor misrepresentation and that unequal shares
had been accepted voluntarily and yet had reopened the
partition.
After remand the trial judge found that the business
was not ancestral but was only a joint business and that
there was a complete partition of the joint family property,
and that there was neither fraud nor misrepresentation in
bringing about the partition. The trial court however
observed that though the plaintiff's father voluntarily
agreed to accept one-third share, the partition of the
business was "unequal and unconscionable." It, however,
dismissed the suit on the ground that the business was not
ancestral and therefore the plaintiff had no right to reopen
the partition.
On appeal by the plaintiff the High Court found that
the business being ancestral the sons of the two brothers
acquired interest by birth and that so far as the partition
was concerned there was no fraud or undue influence
vitiating the partition. It, however, affirmed the trial
court's view that one-third share given to the plaintiff's
father was unfair and prejudicial to the interests of the
minors.
In appeal to this Court the defendants contended that
the partition could not be reopened by the plaintiff because
he and his brothers were represented in the partition by
their father and there was no allegation of fraud or
misrepresentation.
672
Dismissing the appeal, the Court,
^
HELD : 1. It is not the practice of this Court to
interfere with findings of fact arrived at by the High Court
except to prevent gross miscarriage of justice. [676 B]
In the instant case there is no justifiable ground to
go behind the findings of fact. [676 C]
2. It is well established that simply 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. 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 can nevertheless be challenged later in
the Supreme Court in the appeal arising out of the final
judgment pronounced in the action. [676 E-F]
Satyadhan Ghosal & Ors. v. Smt. Deo Rajan Debi & Anr.
[1960] 3 SCR 590, Jasraj Indusingh v. Hemraj Multan Chand
[1972] 2 SCR 973, Margaret Lalita v. Indo Commercial Bank
Ltd., AIR 1979 S.C. 102, Arjan Singh v. Mohindra Kumar &
Ors. [1964] 5 SCR 946; referred to.
Where an application under Order IX, r. 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
appellate court. [676 G]
In the present case the same principle applies and the
parties could 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. [676H, 677A]
3. 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 father at the partition, if
the partition was unfair or prejudicial to the interest of
the minor. 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 suitably circumscribed.
[677 G-H, 678 A]
Ratnam Chettiar & Ors. S. M. Kuppuswami Chettiar & Ors.
Air 1976 S.C. 1 applied.
