SUKHRANI (DEAD) BY L.RS. & ORS. versus HARI SHANKER & OTHERS

Citation: [1979] 3 S.C.R. 671 · Decided: 12-04-1979 · Supreme Court of India · Bench: P.N. SHINGAL · Disposal: Dismissed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

SUKHRANI (DEAD) BY L.RS. & ORS. 
v. 
HAR! SHANKER & OTIIERS 
April 12, 1979 
[P. N. SHINGHAL AND 0. CHINNAPPA REDDY, JJ.) 
671 
Partition of ance5tral property and business-One of the partie! a rnino1 
11t the time of partition-Partition-If could be re-opened when minor became 
a major. 
The plaintiff's father and the fifth defendant were brothers. During his 
minority. the plaintiff filed a suit aileging that the business which his father and 
uncle were doing was ancestral in that it was being carried on with the capital 
v•en by his grandfather, that on the death of 11is grandfather his uncle pro-
posed to his father for a nominal partition of the business and other family 
aMets 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 
188tly 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 brotherl'I. 
During the pendency of the suit a reference was made to arbitration. Tue 
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arbitrators gave an award. 
But that award was impugned by the defendants 
alleging that it was given without any enquiry and without giving the parti~ a 
chance to adduce evidence and that the arbitrators had no jurisdiction to reopen 
the parthion. The trial court set aside the award. The plaintiff's appeal against; 
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1his decision of the trial court was dismissed by the High Court holding that 
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there was an error of law on the face of the award because the artitrators 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 WM not ancestral bul 
1'• only a joint business and that there was a complete partition of the joi:.tlt 
family property, and that there was neither fraud 
nor misrepresentation 
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bringing about the partition. The trial court however observed that though the 
]tlaintiff's father voluntarily agreed to llCCCp! one-third share, the partition 
of 
the business WM "unequal and unconscionable." It, however, dismissed tbie suit 
on the ground that the business was not ancestral and therefore the plaintiff had 
•o right to reopen the partition. 
On appeal by the plaintiff the High Court found that the business being an-
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ce&tral the sons of the two brothers acquired interest by birth and that so far 
as the partition WM 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 tire 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 misrepresen-
tation. 
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672 
SUPREME COURT REPORTS 
[1979] 3 S.C.R. 
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Dismissing the appeal,.t,he Court, 
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HELD.: 1. It" is not the practice of this Court to interfere v.ith findings .of 
fact arrived at by the High Court except to prevent gross miscarriage of jwtic'e.. y 
. [676 BJ 
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In the instant case there is no justifiable ground to go behind the findings of 
fact. [676 CJ 
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2. It is well established that simply because a matter has been: decided at an 
earlier stage. by interl0C1:1tory order and no appeal has been taken therefrom or 
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.~?. 1~.J?~~, ,di,d 1 ~~e, .a 1 ~.igher_ ~?u~ ~ . p.Jot p~~_cl,1:1.ded i fr~_iµ _ 
~~-i~_en.~g, f~e , ~t-~r 
again at a latei stage of the same litigation. 'Th.el correctness. of an order 01' 
remand passed by the High Court which was not questioned at that time by 
filing an ·appeal .in. the Supreme .Court can nevertlleless, be challenge~ Jater ill 
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· the .supreme Court in. the appeal arising. out of the .final. judgment pr()Ilounced 
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· iri,the action. [676&FJ 
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Saty<U/han G.hosal .&. Qrs. v. Smt. Ilea _Ra;an ,Debi ~ ,{nr., 119.§0J..3 ~ 
.590, 
· J.asraj lllfl.u~inglz. v. Jlemraj f'r!.ultqn. Cha~<!. l1972] _2 ~GR,,!173, ]l.fargaret ,IAiit_a .v. 
,Jnfl.o,_Co"!mt;r_cial Bank ,Ltd., ,AIR ;i?7~~S.c.-.1Q2, Arjan Sin$h y. 
__ J1of!i!!fl~a 
· J(umpr .P<. O.rs

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