judgement:
Appeal No. 252 of 1954.
Appeal by Special Leave from the Judgment and Order dated the 22nd January 1953 of the Election Tribunal, Vellore in Election Petition No. 35 of 1952.
N.C. Chatterjee (A. N. Sinha and N. H. Hingorani, with him), for the appellant.
C. V. L. Narayan, for respondent No. 1. 1955.
March 29.
The only question for determination in this appeal by special leave is whether the appellant is disqualified under section 7(d) of the Representation of the People Act, 1951 (hereinafter called the Act) for election to the House of the People, as held by the Election Tribunal, North Arcot, Vellore, by its orders dated the 20th January, 1953 in Election Petition No. 35 of 1952.
The facts of this case are not in dispute and lie within a narrow compass.
The appellant and respondents I to 3 contested the last general elections from the Dharmapuri Parliamentary Constituency in the district of Salem in the State of Madras.
Respondents 4 to 10 who were added subsequently by an order of the Tribunal were also candidates for election.
Their nominations also had been held to be valid but they ultimately withdrew their candidature before the polling took place.
The appellant was in due course declared to have been elected to the House of the People.
Thereafter, on the 5th March, 1952 the 1st respondent filed an election petition before the Election Commission contesting the appellant 's election 85 on the ground that the appellant was disqualified under section 7(d) of the Act as, from the date of his nomination and until the date of election and after, the appellant had a contract with the Government of India in the Postal Department for the transport of postal mail which was a service undertaken by the Government of India.
At this stage it is necessary to state that it is admitted that the appellant is and has been the holder of a stage carriage service permit (exhibit B 2) dated the 26th April 1949, issued by the Regional Transport Authority, Salem, Madras.
It was one of the conditions of the said permit that if called upon the appellant will enter into an agreement with the Government of India for the transport of postal articles and mail bags.
In pursuance of that obligation the appellant entered into a registered agreement with the Government of India on the 16th November 1949 (exhibit A 3) to be noticed in detail hereinafter.
After the appellant had filed his nomination paper, the 1st respondent by his petition dated the 28th November 1951 raised the objection to the effect that his nomination should be rejected on the ground that he had entered into a contract with the Government of India for his own benefit for the transport of mail between Salem and Yercaud.
The Returning Officer for the Dharmapuri Parliamentary Constituency, Salem, by his orders (exhibit A 2) of the same date overruled the objection holding that the service rendered by the appellant of carrying mail is not under an agreement but on an imperative order of the Government under Rule 160 B of the Madras Motor Vehicles Rules.
Apparently the registered agreement (exhibit A 3) had not been placed before him.
To the election petition filed by the 1st respondent the appellant filed his written statement on the 28th May 1952 denying that he was disqualified for election as a member of Parliament by virtue of the provisions of section 7(d) of the Act.
His contention was that "it is the exclusive privilege of the Government of India to convey all postal articles from one place to another and it is a normal function of the Government statutorily reserved to itself.
There is no justifi 86 cation to regard the carrying of mails from one place to another as the performance of any service undertaken by the Government".
It was further averred on behalf of the appellant that it was not justifiable to regard him as having any interest in a contract for the performance of any service undertaken by the appropriate Government within the mischief of section 7(d) of the Act; and that he had been only carrying out the obligations imposed upon him by Rule 160 B of the rules framed under the Motor Vehicles Act.
It was also contended that under article 103 of the Constitution of India the question as to the dis qualification of a member has to be decided by the President whose decision shall be final.
On those pleadings the following issues were framed by the Election Tribunal: 1.Is the nomination of the 1st respt.
invalid because of the prohibition contained in section 7(d) of the Representation of the People Act, 1951, or for any of the reasons set forth in paras.
9 to 11 of the petition? 2.Has this Tribunal no jurisdiction to decide the question as regards the disqualification of the returned candidate, because of article 103 of the Constitution of India? It is not necessary to refer to the additional issue bearing on the question of limitation arising from an interlocutory application for impleading those candidates (respondents 4 to 10) whose nomination had been accepted but who had withdrawn from the contest.
Both these issues were decided against the appellant.
The Tribunal on a very elaborate discussion of the points raised before it, held that the postal service including the transport of mails is a service undertaken by the Central Government within the meaning of section 7(d); that at the date of the nomination the appellant was a contractor under the Central Government; that the agreement between the Government and the appellant involved mutual obligations which could not be referable to a bare statutory duty on the part of the appellant but that it was the result 'of mutual assent based upon a free 87 offer and acceptance; and that the agreement was supported by valid consideration.
The Tribunal also held that article 103 of the Constitution was not a bar to its jurisdiction to decide, the controversy.
Accordingly it allowed the election petition and held the appellant 's election to be void in terms of section 100(1)(c) of the Act, with costs to the respondent.
Hence this appeal.
In this appeal the contentions raised before the Election Tribunal, except the objection to the Tribunal 's jurisdiction in view of the provisions of article 103 of the Constitution, have been pressed before us by the learned counsel for the appellant.
It is manifest that the determination of this case must depend upon the true construction and legal effect of the agreement (exhibit A 3) admittedly entered into by the appellant with the Central Government.
It is therefore necessary to set out in some detail the relevant clauses of the agreement.
The appellant (called the "contractor") is of the one part and the Governor General of India of the other.
The preamble says "Whereas the said contractor Sri.
N. Sathianathan has offered to contract with Governor General for the provision of a Motor Vehicle Service for the transit conveyance and delivery of all postal articles and mail bags as defined in the Indian Post Office Act, 1898, as amended from time to time,. . . from the 15th day of December 1949 to the 14th day of December 1952 and the Governor General has accepted such offer upon the terms and Conditions hereinafter appearing. . .
Now this indenture witnesseth that the contractor in pursuance of the said agreement and in consideration of the premises and of the payments hereinafter agreed to be made to him. . .
It is hereby mutually agreed and declared between and by the parties hereto as follows: 1.Contract to carry: The contractor shall during the continuance of this contract, that is to say, from the 15th day of December 1949 until the 14th day of December 1952 or until the said contract shall be determined by such notice as is hereinafter men 88 tioned or otherwise in (hereinafter referred to as the said contract period) duly and safely convey. . by means of motor vehicles of good and reliable manufacture all postal articles and mail bags. . . ." By clause 4 the contractor is permitted to carry passengers and their luggage by bus provided there is accommodation available and provided that the mail service is not prejudiced in any way.
By clauses 5 and 6 the contractor is required to maintain in good order and repair a number of motor buses and their spare parts at his own expense and to bear all municipal and other taxes payable in respect of the motor vehicles.
Clause 7 contains the schedule of penalties in the event of non completion of any journey or of delay in completion thereof in accordance with the time table, etc.
By clause 8 the contractor is made absolutely liable and responsible for the due and safe custody and delivery in good order and condition of postal articles and mail bags.
By clause 10 nongazetted postal and telegraph officers travelling on duty on the route allotted to the appellant are declared to be entitled to travel free of all charges and such official passengers shall have precedence over ordinary passengers.
Clause 13 provides that the contract shall not be transferred by the contractor to any person or company without the previous consent in writing of the Director General of Posts & Telegraphs.
By clause 15 the Government agrees to pay to the contractor Rs. 200 per month during the subsistence of the agreement "as his remuneration for service to be rendered by him hereunder" '.
This monthly sum of Rs. 200 is liable to be increased or decreased proportionately to the increase or decrease in the mileage to be covered.
Clause 18 is in these terms: "In the event of the contractor failing to secure a renewal of the permit on the line this contract will automatically terminate on the date up to which the old permit shall be valid and in such case no compensation shall be payable to either party for such termination.
This contract may be absolutely determined and put an end to by either of the contracting 89 parties giving four calendar months notice in writing to the other of his intention so to determine and put an end to the same".
Clause 21 contains the usual arbitration clause to the effect that all disputes and differences arising out of or in any wise touching or concerning the agreement shall be referred to the sole arbitration of the Director General of Posts and Telegraphs or his nominee.
It is also provided that the award of the arbitrator shall be final and binding on the parties.
It will be observed that the agreement set out above is a formally drawn up document which satisfies all the requirements of a contract.
It is not the appellant 's case that the contract has been vitiated by undue influence, fraud or such other cause.
But it has been argued that it was a necessary sequel to the stage carriage permit granted by the Transport Authority under the Motor Vehicles Act read along with the relevant rules.
In this connection reference was made to rule 160 B of the Madras Motor Vehicles Rules which is as follows: "It shall be a condition of every stage carriage permit that the holder of the permit shall, if so required by the transport authority which granted the permit, carry mails at such rates and on such terms as the transport authority may fix after consultation with the holder of the permit and the postal authorities concerned".
The rule quoted above has apparently been made under the authority of section 48(d) of the Motor Vehicles Act.
It is common ground that the agreement aforesaid between the appellant and the Central Governmentis in pursuance of rule 160 B aforesaid; but it has been argued on behalf of the appellant that though the agreement aforesaid has the "semblance of a contract", it is lacking in the "essential ingredients of a free consensus of acceptance and offer".
This argument is based on the further contention that the appellant has been carrying mail on his buses in performance of a statutory obligation which cannot come within the mischief of 12 90 section 7(d) of the Representation of the People Act, 1951.
The material portion of the section is in these terms: "A person shall be disqualified for being chosen as, and for being, a member of either House of Parlia ment. . . . . (b)if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, he has any share or interest in a contract for. . . . . . the performance of any services undertaken by the appropriate Government".
It has further been argued alternatively that if the agreement has the force of a contract, it is totally lacking in consideration because the monetary consideration provided for in the agreement is no more than the subsidy already fixed by the Regional Transport Officer by his orders dated the 23rd July, 1949; that the agreement in question being with a third party, namely, the Governor General, to render service which was already due to another party, namely, the Transport Authority for the same consideration cannot amount to a valid contract supported by consideration; and finally, that the transport of mail is not a "service undertaken by the Central Government".
In our opinion, there is no substance in any one of these contentions.
It is true that the appellant entered into the contract aforesaid with the Central Government for the transport of postal articles and mail bags on the 16th November, 1949.
From before that date be had been carrying on the business of plying buses on the route allotted to him by the Regional Transport Authority.
But he entered into the contract with his eyes open and knowing full well his rights and liabilities under the same.
No one is compelled to carry on the business of stage carriage service or for the matter of that, of transporting postal articles and mail bags.
In terms of the permit, it is open to the Government to call upon a permit holder to undertake the additional burden of carrying postal articles and mail bags which carries with it the additional remuneration to be fixed by the Transport Authority after consultation with the postal autho 91 rities and the carrier.
It is not every stage carriage permit holder who is called upon to do so.
At the time the appellant entered into the contract with the, Government in the postal department he may not have had any idea of standing for election to the House of the People when in future the general elections came to be held.
If he wished to steer clear of the difficulty created by section 7 of the Act, he could have given due notice to Government under clause 18 of the contract referred to above.
On the expiry of the term of the notice he would have been free to stand for election to a State or Central Legislature.
Section 7 of the Act is clearly intended to.
avoid a conflict between public duty and private interest.
The Tribunal discussed a number of authorities with reference to the English and the American Law of Contract for arriving at the conclusion that the agreement between the appellant and the Government of India in the Postal Department had all the ingredients of a valid contract.
The Tribunal need not have travelled so far afield, especially when the provisions of the Indian Con tract Act which govern the case are sufficient to answer all the contentions raised on behalf of the appellant.
On the face of the transaction the agreement was between two competent parties with their free consent.
There was no question but that there was lawful consideration, The permit for the stage carriage had been granted by, the authority under the Motor Vehicles Act; and the agreement for transport of postal articles and mail bags was between the Government of India in the Postal Department and the appellant for a cash consideration.
But it was argued that the agreement was in pursuance of a pre existing obligation imposed by the rule aforesaid framed under the Motor Vehicles Act.
It is true that the permit does contain a condition that the permit holder may be called upon to undertake transport of mail bags and postal articles but that is only a notice to intending applicants for a stage carriage permit that the grantee of such a per mit may have to render that additional service for an 92 additional remuneration if called upon to do so by the authorities of the Postal Department.
If any one was not prepared to undertake that additional responsibility, he was free not to make an application for such a permit; but that does not mean that the agreement actually entered into between the Postal Department and the permit holder is not an independent contract governed by its own special terms.
As indicated above, clause 18 has reserved the right to either party to terminate the contract on giving four months ' notice.
The appellant must be presumed to have known that the agreement that he had entered into with the Postal Department will stand in the way of his running as a candidate for election to the Central or the State Legislature.
There was nothing to prevent him from giving the necessary notice to the department and thus terminate his agreement so as to be free to stand as a candidate for election to the legislature.
Section 7 of the Act is intended to ensure that there is no occasion for a conflict between public duty and private interests.
The appellant had a clear and free choice before him.
If he was anxious to serve the community as a member of the Central Legislature, he had to give up his private gains in the shape of the remuneration for carrying postal articles and mail bags in his buses.
It may be that on his terminating the agreement with the postal department he would have to give up his stage carriage permit also but not necessarily so.
If on the same route a number of bus services are permitted to different parties, the Postal Department may choose any one of them to enter into the agreement for the carriage of mail bags and postal articles.
But even if there was only one service for the route in respect of which the appellant held the stage carriage permit, if he had to give up his permit, some other party would take his place for running the bus service and carrying the postal articles and mail bags.
It was further argued that the appellant had no hand in the fixing of the remuneration to be paid by the Postal Department for carrying its mails, etc.
But it is clear, by a reference to the terms of the rule 93 quoted above, that the amount of the remuneration had to be fixed by the department after consultation with the carrier.
It was always open to the latter to demur to the terms proposed by the department and if he found that the department was not prepared to accept his terms he was not bound to enter into the agreement.
The fact that he had agreed to carry postal articles and mail bags was possibly an additional qualification for him to obtain a renewal of his permit and thus gave him an advantage over his competi tors.
Hence instead of being an additional burden or a handicap to him, it was an additional advantage to him in the matter of getting a renewal of his permit in preference to others.
The agreement was therefore based on mutual promises, by the appellant to carry the mail bags, etc., and by the Postal Department to pay him suitable remuneration for the services thus rendered.
It was further contended on behalf of the appellant that the Central Government could not be said to have 'undertaken ' any 'service ' within the meaning of section 7(d) of the Act when it made arrangements for the carriage of mail bags and postal articles through the appellant. ' It has not been and cannot be contended that the Government is bound in the discharge of its duties as a sovereign state to make provision for postal mail service.
The provisions of the Indian Post Office Act, VI of 1898, are only enabling in the sense that they authorize the State agency to have the exclusive privilege of conveying letters, etc.
for the convenience of the public and for the benefit of the Government, without making it obligatory upon it to provide every individual and every place with those facilities.
It may be that those facilities are being extended from time to time and are being brought nearer to every home but that is only evidence of the fact that the State as a welfare state is anxious to provide for the conveniences of the public in the matter of communications and correspondence.
That is to say, the Government in the Postal Department has only undertaken a service to be rendered to the community and that such 94 a service is not an essential function of a sovereign state.
It cannot be gainsaid that the Governmentr in the Postal Department is rendering a very useful service and that the appellant has by his contract with the Government undertaken to render that kind of service on a specified route.
The present case is a straightforward illustration of the kind of contract contemplated by section 7(d) of the Act.
At all material times the appellant has been directly concerned, for his own benefit, in the contract of carrying mail bags and postal articles entered into by him with the Government in the Postal Department.
For the reasons aforesaid we have not the least hesitation in holding that the conclusions arrived at by the Tribunal are entirely correct.
The appeal is accordingly dismissed with costs.
Appeal dismissed.

summary:
The question for determination in this appeal was whether the appellant was disqualified under section 7(d) of the Representation of the People Act, 1951 for election to the House of the People.
The material portion of section 7(d) of the Act reads as follows: "A person shall be disqualified for being chosen as and for being, a member of either House of Parliament. . (b) if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, he has any share or interest in a contract for. . the performance of any service undertaken by the appropriate Government".
The appellant (a contractor) had entered into an agreement with the Central Government.
The relevant portion of the said agreement was as follows: "The contractor has offered to contract with the Governor General for the provision of a Motor Vehicle Service for the transit conveyance of all postal articles and mail bags from December 15, 1949 to December 14, 1952 and the Governor General has accepted the offer.
"The Government agrees to pay to the contractor Rs. 200 per month during the subsistence of the agreement 'as his remuneration for service to be rendered by him ' ".
Held that on the face of it the agreement was between two competent parties with their free consent, and there was a lawful cash consideration for it.
The Appellant entered into the agreement with his eyes open knowing full well his rights and liabilities under the same.
84 The case was a straightforward illustration of the kind of contract contemplated by section 7(d) of the Act.
At all material times the appellant had been directly concerned, for his own benefit, in the contract of carrying mail bags and postal articles entered into by him with the Government in the Postal Department.
Section 7 of the Act is clearly intended to avoid a conflict between public duty and private interests.


judgement:
Civil Appeal No. 1136 of 1975.
Appeal by Special Leave from the Judgment and order dated the 11th day of March, 1975 of the Madras High (court in C.S.A. No. 64 of 1974.
section V. Gupte, Mrs. section Bhandare for the appellant.
799 section Govinda Swaminath.
Raghavan, R. Chandrasekhar and Jayaram for respondent Nos. 1 to 2.
M. C. Bhandare, A. T. M. Sampath and M. M. L. Srivastva for respondent No. 3.
The Judgment of the Court was delivered by UNTWALIA, J.
The question which falls for our determination in this appeal by special leave is as to what is the meaning and scope of section 186 of the hereinafter called the Act.
For the determination of the said question it will suffice to state only a few facts from the judgments of the Madras High Court.
There were two Managing Directors of Century Flour Mills Ltd. respondent No. 3.
Their names are S/Shri P. Govindaswamy and section P. Sithambaram.
Both of them had been duly appointed as such in the year 1972 They subsequently fell out.
In August, 1974 certain shareholders of the company including respondents I and 2 lodged a requisition under section 169 of the Act for the calling of an extraordinary In general meeting of the company for removal of Govindaswamy.
Certain other share holders lodged a similar requisition for removal of Sithambaram form the post of Managing Director.
Both the requisitions were considered by, the Board of Directors in their meeting held on 19 8 1974.
As per the requisitions, they called an extraordinary general meeting of the company to be held on 14 9 1974.
The meeting was directed to be held at the residence of one of the shareholders of the company instead of its registered office.
The shareholders were divided into two factions belonging to the two groups of the Managing Directors.
Apprehending very many difficulties and troubles in the holding and the conduct of the meeting on 14 9 1974, respondents 1 and 2 filed an application under section 186 of the Act, Company Petition No. 85/1974 in the Madras High Court.
They prayed to the Court to appoint an Advocate Commissioner as Chairman of the meeting to be held on 149 1974 so that the proceedings may be conducted in a regular manner.
The only respondent impleaded in the said petition was the company which filed a counter affidavit to resist the prayer of respondents 1 and 2.
A learned single Judge of the High Court took the view that power under section 186 of the Act could be exercise even where a meeting had already been called, but it was impracticable to hold or conduct the meeting.
In other words, the learned Judge was of the opinion that the Court even without ordering a meeting of the company to be called could appoint a person to be the Chairman of the meeting.
But on appreciation of the facts of the case in the light of certain decisions of the High Courts, he came to the conclusion that it was not impracticable to hold or conduct the meeting and hence dismissed the application filed by respondents 1 and 2.
O. section Appeal No. 64/1974 was filed in the High Court under clause 15 of the Letters Patent against the order dated 11 9 1974 of the learned single Judge.
By an order made on September 12 1974 a Bench the High Court stayed the convening of the meeting called to be held on 14 9 1974.
It appears that in spite of the service of me order 3 L127SCI/75 800 dated 129 1974 on September 13, the meeting was held on 14 9 1974 CMP No. 10935/1974 was taken out in the form of a Judges ' summons under Rule g of the Company Code Rule, 1959 to declare the meeting held on 149 1974 as void and the resolutions passed therein as illegal and inoperative.
The said appeal and the CMP alongwith other CMPs which are not necessary to be referred to in this judgment were heard by a Bench of the High Court presided over by the learned Chief Justice.
The Bench allowed CMP 10935/1974, put back the parties in the same position as they stood immediately prior to the service of the order dated 12 9 1974 and declared that the meeting held on September 14, 1974 and the resolutions passed thereunder would have no effect whatsoever.
By a separate judgment, Appeal No. 64/1974 was also allowed by the Division Bench.
It agreed with the single Judge as regards the meaning and scope of section 186 of the Act but differed from him on the merits of the case.
They appointed an Advocate of the Court as the Advocate Chairman to hold and conduct the meeting and directed that the meeting would take place at the premises of the registered office of the Company.
The sole appellant in this appeal is a shareholder of the company.
Feeling aggrieved by the orders of the Division Bench of the High Court in CMP No. 10935/74 and in OS Appeal No. 64/1974 he filed special leave applications in this Court seeking leave to file appeals in both the matters.
By order dated 29 8 1975 a Bench of this Court dismissed as withdrawn SLP No. 1156/1975 arising from the judgment and order dated 11 3 1975 of the High Court in CMP No. 10935/ 1974.
Special leave was granted from the judgment and order dated 17 3 1975 of the High Court passed in OS Appeal No. 64/1974.
Mr. section V. Gupte, learned counsel for the appellant urged the following three points in support of the appeal.
(1) That power under section 186 of the Act could not be exercised until it was found that it was impracticable to call a meeting of the Company other than an annual general meeting and to hold and conduct the meeting in the manner prescribed by the Act or the Articles of the company.
The Court had no jurisdiction merely to appoint a Chairman of the meeting without an order for the calling of the meeting.
(2) That the High Court was wrong in holding that it was impracticable to hold or conduct the meeting of the company which had already been called.
(3) That during the pendency of the appeal in the High Court, Company Law Amendment Act of 1974 came into force on 1 2 1975.
The powers and jurisdiction of court under section 186 stood transferred to Company Law Board by the said amendment.
The court, therefore, had no power to make an order under section 186 on 17 3 1975.
801 Since in our opinion the first point urged on behalf of the appellant is well founded and has to be accepted as correct, neither of the other two points need any determination or answer and we express no opinion in respect of them.
Section 186 of the Act as it stood at the relevant time reads as follows: "Power of Court to order meeting to be called.(1) If for any reason it is impracticable to call a meeting of a company, other than an annual general meeting in any manner in which meetings of the company may be called, or to hold or conduct the meeting of the company in the manner prescribed by this Act or the articles, the Court may, either of its own motion or on the application of any director of the company, or of any member of the company who would be entitled to vote at the meeting, (a) order a meeting of the company to be called, held and conducted in such manner as the Court thinks fit; and (b) give such ancillary or consequential directions as the Court thinks expedient, including directions modifying or supplementing in relation to the calling, holding and conducting of the meeting the operation of the provisions of this Act and of the company 's articles.
Explanation The directions that may be given under this sub section may include a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting.
(2) Any meeting called, held and conducted in accordance with any such order shall, for all purposes, be deemed to be a meeting of the company duly called" held and conducted.
" It corresponds with slight variation to section 79(3) of the Companies Act, 1913 and section 135 of the English Companies Act, 1948.
The plain meaning of section 186 is that the court may order a meeting of the company to be called, held and conducted in such manner as the court thinks fit in any or more of the following contingencies.
(1) If for any reason it is impracticable to call a meeting of the company other than an annual general meeting.
(ii) If for any reason it is impracticable to hold the meeting of the company in the manner prescribed by the Act or the Articles.
(iii)If for any reason it is impracticable to conduct the meeting of the company in the same manner.
on the occurring of any or more of the said contingencies the court has to order the calling of a meeting of the company and its holding 802 and conducting in such manner as the court thinks fit.
The use of the word 'and ' between the words 'held ' and 'conduct ' in clause (a) of sub section (1) clearly shows that the court has no power to make any order regarding the holding and conducting of any meeting which has already been called without ordering a meeting of the company to be called in place of the meeting already called.
If an order under clause (a) has been made such ancillary or consequential directions as the court thinks expedient could be given under clause (b) including a direction within the meaning of the explanation appended thereto.
The language of sub section (2) further fortifies the above interpretation of sub section (1) and makes any meeting called, held and conducted in accordance with an order under sub section (1) to be a meeting of the company duly called, held and conducted.
The use of the word or in the first part of sub section (1) may be disjunctive or conductive in the manner we have interpreted above.
But undoubtedly the order under clause (a) has got to be for all the three purposes and not merely for holding or conducting of the meeting.
In Company Petition No. 85/1874 no prayer was made to the Court for an order for the calling of a meeting of the Company nor has any such order been made by the High Court in appeal.
In our opinion, therefore, the application as presented in the Court under section 186 of the Act was not maintainable.
No prayer was ever made to the Court for an order that a meeting of the company be called.
A fresh application, it goes without saying, if necessary, can be made under section 186 of the Act.
But then it will have to be made to the authority mentioned in the amended section.
For the reasons stated above, we allow this appeal set aside the judgment and order of the High Court passed in OS Appeal No 64/1974 and dismiss Company Petition No. 85/1974 as being not maintainable.
We shall direct the parties to bear their own costs throughout.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary:
Under section 186(1)(a) of the , if for any reason it is impracticable to call a meeting of the company, other than an annual general meeting, or to hold, or conduct it in then manner prescribed by the Act or the articles of the company, the Court may order the meeting to be called, held and conducted in such manner as the Court thinks fit; and section 186(2) provides that such a meeting should be deemed to be a meeting of the company duly called, held and conducted.
The Board of Directors of a company called an extraordinary general meeting of the company for the purpose of considering petitions filed by shareholders regarding the managing directors.
Apprehending trouble in the holding and conducting of the meeting two share holders filed a petition in the High Court under section 186 of the praying for the appointment of an advocate Commissioner as Chairman of the meeting, which was called.
The High Court, in letters Patent appeal, granted the prayer.
In appeal to this Court it was contended, inter alia that the power under section 186 of the Act could not be exercised until it was found that it was impracticable to call the meeting and to hold and conduct it in the manner prescribed by the Act or articles of association, and that the High Court had not jurisdiction merely to appoint a Chairman of the meeting already called.
Allowing the appeal to this Court, ^ HELD: Under section 186 the Court may order a meeting of the Company to be called, held and conducted, in such manner, as the Court thinks fit in any one or more of the contingencies, namely, if for any reason it is impracticable (1) to call a meeting of the company other than an annual general meeting.
(ii) to hold the meeting in the manner prescribed by the Act or the Articles of Association; and (iii) to conduct the meeting of the company in the same manner.
The use of the word 'or ' in the first part of sub section
(1) (a), may, therefore, be disjunctive or conjunctive as interpreted above but the use of the word and between the words 'held and conducted ' in the same clause shows that the order under cl.
(a) has got to be made for all the three purposes of calling, holding and conducting and not merely for holding or conducting the meeting.
Therefore, the Court has no power to make any order regarding the holding and conducting of any meeting which has already been called, without ordering a meeting of the company to be called, in place of the meeting already called.
The language of sub section
(2) also fortifies the above interpretation.
Since there was no prayer for an order of calling a meeting the application to the Court under section 186 was not maintainable.
[802A D]


judgement:
ivil Appeals Nos. 817 to 819 of 1968 and 1456 to 1458 of 1969 From the Judgment and order dated the 19th May, 1966 and appeals by Special Leave from the Judgment and order dated the 7th November 1968 of the Punjab & Haryana High Court in C.W. No. 2205, 2206 and 2215 of 1965 and in C. Revsn.
771 to 773 of 1967 respectively.
Rameshwar Dial and A, D. Mathur for the appellants (In all the appeals) .
K. L. Gosain and E. C. Aggarwala for respdt.
Nos. 1 (In C.A. Nos. 817/68, 1456 1457/69) respdt.
Nos. 1 and 3 (in Cas.
Nos. 818/68 and 1458/69) and respdt.
No. 1 (In CA No. 819/68).
The Judgment of the Court was delivered by KRISHNA IYER,J.
These two batches of appeals stem from the same judgment but raise two different questions of law under the Punjab Security of Land Tenures Act, 1953 (Punjab Act X of 1953) (for short, the Act), the forensic focus being turned on two different facets of section 18 of the Act.
The first set of appeals relates to the right of the tenants to purchase the ownership of the common landlord, Teja, while the second set of appeals turns on the principles of compensation awardable to the landlord pursuant to the vesting of ownership in the tenant.
Taja, the landlord, was admittedly a large land owner under whom there were three tenants.
Each of them applied for purchase of ownership under section 18(1) of the Act.
The Assistant Collector, who is the primary authority, found them eligible, fixed the price and the instalments of payment, and they duly deposited the first instalment.
The statutory consequence of such deposit was that title to the property vested in the tenants on that date.
All these events took place in the early '60s.
Had the scheme of agrarian reform in the Punjab been simple and had the virtue of early finality so necessary in such a measure been present, the law would have operated with speed and changed the rural landscape radically, instead of provoking a heavy run of never ending litigation.
Section 24 of the Act has had this unwitting effect.
Too many tiers of quasi judicial review, too long at each deck and in a system which is slow moving, tempt disappointed parties to litigate to the disastrous end.
Such a statutory creation, calculated to give ultimate justice, is like a Frankenstein 's monster, the very prolonged over judicialised litigative engine, bleeding justice to death.
A legislature, with care and concern for the agrarian community should be vigilant enough to design a quick and competent legal engineering project absent by contrast in most land reform laws blessing the rural poor.
And it is noteworthy that legal battles are fought largely before Collectors, Commissioners and Financial Commissioners and then the writ chapter begins.
This litigation, it is worthy of note, began before the Collector in 1961/62.
A fundamental assessment of the comparative economic and social costs of multi decked determination procedure would have induced the legislature to reduce institutional levels of adjudication.
This is by the way, although we strongly recommend that the legislatures do pay serious attention to producing an early termination to land reform reordering by a mammoth and immediate decision making instrumentality.
849 C.As 817 819/68 Shortly put, and shorn of details, the simple contention of the appellants in these appeals is that although their prepositus Teja was a large landowner, on his death his heirs, the present appellants, became entitled to shares and, in this process of fragmentation, they became 'small landowners ' within the meaning of section 2(2) of the Act.
This event occurred after the tenants had been found entitled to purchase from the landowner the lands held by them and after they had deposited the first instalment as set down in section 18(4).
The plea is that an appeal is a continuation of the original proceeding and, therefore, if there is a change of circumstances in the landlord 's ownership during the pendency of the appeal, resulting in his legal representatives becoming 'small landowners ', the tenants will be disentitled to purchase the land.
Of course, a tenant of a 'small landowner ' has no right to purchase the land.
But, in the present case, the landowner admittedly was a large landowner at the time the tenants applied for purchase.
Section 18(1) reads, dropping the irrelevant portions, thus: "18.
Right of certain tenants to purchase land: (1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a land owner other them a small landowner (i) (ii) (iii) shall be entitled to purchase from the land owner the land so held by him . in the case of a tenant falling within cl.(i) or cl.(ii) at any time, and in the case of a tenant falling within cl (ii) within a period of one year from the date of commencement of this Act." It is common case that the application has been made in time and that at the time such application was made, the tenants were competent to buy the land.
Section 18(4) (a) and (b) may, at this stage, be read: "18(4) (a) The tenant shall be competent to pay the purchase price either in a lump sum or in six monthly instalments not exceeding ten in the manner prescribed.
(b) on the purchase price or the first instalment there of, as the case may be, being deposited, the tenant shall be deemed to have become the owner of the land, and the Assistant Collector shall, where the tenant is not already in possession and subject to the provisions of the Punjab Tenancy Act , (XVI of 1887), put him in possession thereof.
" It is absolutely plain that on the deposit of the first instalment of the purchase price, the tenant shall be deemed to have become the owner of the land.
In the present case, all these happenings had resulted in the respondents becoming the owners.
850 The death of the large landowner occurred pending the appeal.
the argument of counsel for the appellant, which found favour with the Financial commissioner, but failed before the High Court, is that an appeal being a re hearing of the suit, relief must be given to the legal representatives of the original landowner who, by devolution, became small landholders.
If this contention be sound, the tenants would have to be denied relief since they would be holding under small landowners.
The solitary point which thus falls for determination is as to whether the subsequent event of the landowner 's death at the appellate stage unsettles the right acquired by the tenants or whether the tribunal must uphold rights which have crystallized as on the date the applications were made and, in any event, the deposits of the first instalment were made by each of the tenants.
We see no difficulty in answering this question against the appellant, but, in view of the persistent submission based upon a few rulings of this Court, the Federal Court and the High Courts, made by counsel for the appellant, we may as well consider the question of law , adopting an interpretative attitude which will further and not frustrate the legislative will in case there are alternative choices for the Court.
Of course, a construction which will promote predictability of results, maintenance of reasonable orderliness, simplification of the judicial task advancement by the Court of the purpose of the legislation and the judicial preference for what it regards as the sounder rule of law as between competing ones, must find favour with us.
A plain reading of section 18, without reference to consideration of subsequent events at the appellate level, yields the easy and only conclusion that the rights of parties are determined on the date they come to Court and what is an insurmountable obstacle to any other construction is that once the deposit is made the title to the land vests in the tenant.
Agrarian reform law affects a considerable number of people and to keep rights uncertain over a long stretch of time till appeals and reviews and revisions and other processes are exhausted, is to inject unpredictability of results, for it is quite on the cards that a landlord may die in the long course of litigation, or other events may happen at later stages beyond the trial Court.
Can rights of parties fluctuate with such uncertain contingencies ? If so, stabilization of land ownerships, so vital to the new pattern of agrarian relations, will be postponed for a long time.
Is not the judicial task simplified by adopting the golden rule that the rights of parties must be determined when they seek justice and not when the last Court has had its last say, long years after the litigation was initiated ? A system of orderliness about rights in land will result from this approach.
More than all, the sounder rule of law as between rival claims to consideration of, or indifference to, subsequent events is surely that which excludes the later event factually or legally.
Such a reading of the statutory scheme rhymes well with rapid agrarian reform contemplated by the framers.
The philosophy of the approach which commends itself to us is that a litigant who seeks justice in a perfect legal system gets it when he asks for it.
Rut because human institutions of legal justice function slowly, and in quest of perfection, appeals and reviews at higher levels are provided for, the end product comes considerably late.
But these higher Courts pronounce upon the rights of parties as the facts stood when the 851 first Court was first approached.
The delay of years flows from the infirmity of the judicial institution and this protraction of the Court machinery shall prejudice no one.
Actus curiae neminem gravabit(1).
Precedential support invoked by the appellant 's counsel also lets him down provided we scan the fact situation in each of those cases and the legal propositions therein laid down.
The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional developments having a material and equitable import, occurring during the pendency of the litigation so that the Court may not stultify itself by granting what has become meaningless or does not, by a myopic view, miss decisive alterations in fact situations or legal positions and drive parties to fresh litigation whereas relief can be given right here.
The broad principle, so stated, strikes a chord of sympathy in a court of good conscience.
But a seeming virtue may prove a treacherous vice unless judicial perspicacity, founded on well grounded rules, studies the plan of the statute, its provisions regarding subsequent changes and the possible damage to the social programme of the measure if later events are allowed to unsettle speedy accomplishment of a re structuring of the land system which is the soul of this which enactment.
No processual equity can be permitted to sabotage a cherished reform, nor individual hardship thwart social justice.
this wider perspective explains the rulings cited on both sides and the law of subsequent events on pending actions.
In P. Venkateswarlu vs Motor & General Traders(2) this Court dealt with the adjectival activism relating to post institution circumstances Two propositions were laid down.
Firstly, it was held that 'it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding '.
This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted.
Granting the presence of such facts, then he Is entitled to its enforcement.
Later developments cannot defeat his right because, as explained earlier, had the court found his facts to be true the day he sued he would have got his decree.
The Court 's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action.
This position finds support in Bhajan Lal vs State of Puniab(3) .
The impact of subsequent happenings may now be spelt out.
First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights.
Where the nature of the relief as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or re shaped in the light of dated facts.
Patterson(4) illustrates this position.
It is important (1) "An act of the court shall prejudice no one" Lalin for lawyers Sweet & Maxwell.
(2) A. I. R. , 1410.
(3) (4) Patterson vs State of Alabama ; , 607; 852 that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow.
Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs.
Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage.
Lachmeshwar Prasad Shuku vs Keswar Lal Chaudhuri(1) falls in this category.
Courts of justice may, when the compelling equities of a case oblige them, shape reliefs cannot rights to make them justly relevant in the updated circumstances.
Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice.
Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to in ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact.
Venkateswarlu (supra), read in its statutory setting, falls in this category.
Where a cause o action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side.
All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief.
The primary concern of the court is to implement the justice of the legislation.
Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Chokalingam Chetty: P.C.).
The law stated in Ramji Lal vs the State of Punjab(2) is sound: "Courts do very often take notice of events that happen.
subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff 's suit would be wholly displaced by the proposed amendment (see Steward vs The North Metropolitan Tramways Company and a fresh suit by him would be so barred by limitation.
" One may as well add that while taking cautious judicial cognizance of 'post natal ' events, even for the limited and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation.
a change in situation and plead for relief on the altered basis.
The apparently divergent strains of the several decisions has persuaded us to dilate on this branch of processual jurisprudence.
Let us now apply the law to the circumstances here.
The legislation we are interpreting relates to agrarian reform, regarded as the vitaI base to build a (1) (2) I. L. R. [1966] Punj.
125. 853 new social order.
The Constitution has stressed not merely the supreme significance of this rural transformation but the fleet footed implementation thereof, even going to the extreme extent of walling off litigative assaults on constitutionality by creation of the Ninth Schedule and the like.
Moreover, the Act itself takes care to prevent future accumulation of lands or motivated slimming process by transfers, interfering with the scheme of surplus pool and settlement of ejected tenants and the like.
Peasant proprietorship is a cherished goal of the statute and so it provides that even on the payment of the first instalment of the price the tenant gets the title of the landlord.
To hold that, if the landlord dies at some distant date after the title has vested in the tenant, the statutory process would be reversed if by such death, his many children, on division, will be converted into small landholders, is to upset the day of reckoning visualized by the Act and to make the vesting provision 'a teasing illusion ', a formal festschrift to agrarian reform, not a flaming programme of 'now and here '.
These surrounding facts drive home the need not to allow futurism,, in a dawdling litigative scene, to foul the quick legislative goals.
Moreover, the right of the respondents is fixed under section 18(1 ) and (41 and that cannot be uprooted by supervening circumstances.
We are not called upon to mould the relief but to reject the right.
We are not asked to avoid multiplicity of suits but to non suit and thus stultify the agrarian law.
We are not required to permit the appellate authority to re assess the facts as they stood when the action was brought (that is part of appellate power) but to project the landholder 's subsequent death backwards to refuse a right already acquired.
A flash back camera, in this context, frustrates forensic objectives.
Individual misfortune may be real but larger social changes will claim martyrs in law and in fact.
How can we miss the sublime impact of the Passion of Christ for the Redemption of Mankind ? The great fact is that, if uniformly relentlessly and swiftly enforced, neither landlord nor tenant can keep more than the 'permissible area '.
That is the equity and equality of this agrarian law.
We see no merit in the appeals and dismiss them, leaving parties to bear their respective costs throughout.
1456 1458/69 These appeals raise an interesting question of law bearing on compensation payable to landholders whose lands are vested in tenants and this turns on the connotation of 'similar land ' in section 18(2) of the Act in the context of averaging the price for ten years before the filing of the application for purchase.
The primary fact which projects this point 854 Of law is as to whether the purchased land is irrigated or non irrigated for purposes of valuation.
We are relieved from the need to investigate the implications of the issue because the factual foundation about the nature of the land in question was never put in issue nor considered in the High Court.
Thus the appellants have missed the bus and we cannot hear them on a question raised de novo and demanding enquiry into facts not raised at the next below level.
We dismiss these appeals, without costs.
V.M.K, Appeals dismissed.

summary:
Section 18(1) of the Punjab Security of Land Tenures Act, 1953.
lays down that, notwithstanding to the contrary contained in any law, usage or contract, a tenant of a land owner other then a small land owner shall be entitled to purchase from the land owner the land so held by him in the Case of a tenant falling within Cl.
(i) or cl.
(ii) at any time.
and in the case of a tenant falling within Cl.
(iii) within a period of one year from the date of commencement of this Act.
Section 18(4)(a) provided that the 'tenant shall be competent to pay the purchase price either in a lump sum or in six monthly instalments not exceeding ten in the manner prescribed.
Clause (b) provided that, on the purchase price or the first instalment thereof, as the case may be, being deposited, the tenant shall be deemed to have become the owner of the land.
Teja, the landlord was a large land owner under whom there were three tenants.
Each o them applied for purchase of ownership under section 18(1) of the Act.
The Assistant Collector found them eligible, fixed the price and the instalments of payment, and they duly deposited the first instalment.
After this Teja died.
Before the Financial Commissioner, the appellants contended that on the death of Teja, they as the heirs of 'Teja, became entitled to shares and, in this process of fragmentation, they became small landowners within the meaning of section 2(2) of the Act and therefore the tenants will be disentitled to purchase the land.
Their plea was that an appeal is a continuation of the original proceeding and, therefore is there is a change of circumstances in the landlord 's ownership during the pendency of the appeal, resulting in his legal representatives becoming small landowners ' the tenants will be disentitled to purchase the land.
The appellants succeeded before the Financial Commissioner, but failed before the High Court.
This appeal has been preferred on the basis of the special leave granted by this Court.
Dismissing the appeals, ^ HELD: (i) It is absolutely plain that on the deposit of the first instalment of the purchase price, the tenant shall be deemed to have become the owner of the land.
In the present case, all these happenings had resulted in the respondents becoming the owners.
[849 H] (ii) Where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in law and it is made applicable at any stage.
[852 B] P. Venkataswarlu vs Motor & General Traders ; , 1410, Bhajan Lal vs State of Panjab , Patterson vs State of Alabama ( 1934) 294 U.S. 600, 607 Lachmeshwar Prasad Shukul v, Keshwar Lal Chau ; , 607 Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri and Ramji Lal vs The State of Panjab, I.L.R. [1966] Punj.
125 referred to.
The death of the large landowner occurred pending the appeal.
The right of the respondents is fixed under sub sections (1) and (4) of S 18 of the Act and that cannot be uprooted by supervening circumstances.
A plain reading of section 18 Yields the only conclusion that the rights of parties are determined on the date they come to court.
[853 D] 6 1127SCI/75 848


judgement:
ivil Appeal No. 685 Form the Judgment and order dated the 22nd November, 1963 of the Madras High Court in Appeal Nos 329 and 468 of 1959 F. section Nariman, A. Subba Rao, R. V. Pillai and P. Ramaswami, for the appellants.
M. Natesan, P. section Srisailam and M. section Narasimhan, for L.rs.
Of respondent No. 1 and respondents 2 and 3.
FAZAL ALI, J. This is the plaintiffs ' appeal against the Judgment of the High Court of Madras dated November 22, 1963 by certificate.
The appeal arises out of a partition suit filed by plaintiffs Nos. 1 to 4 for concellation 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 l, 1940 the two brothers, namely section M. Kuppuswami Chettiar defendant No. 1 and section M. Ranganatham Chettiar defendant No. S, 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 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 l 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 movable properties it appears that the partition had taken place a month earlier i.e. On April 12, 1940 and 865 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 the defendant No. 1 and those contained in Sch, were allotted to the share of defendant No. 5.
The plaintiffs ' case was that the two brothers who were members or the Undivided Hindu Family along with the plaintiffs and other minor coparaceners 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 section 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 section 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. I by taking advantage of the weakness of the plaintiffs ' father.
We might mention at the outset that Mr. F. section 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 offered between the two brothers S.M.K. and S.M.R. was on 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 1 & 5 but this claim was not pressed before us ill 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 major 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 October 3, 1958 just about a month and a half before the judgment in the suit was delivered by the Subordinate Jude, 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 I 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.
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 immovable properties was concerned which 866 was done by sparate 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 re open 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 re partition of the movable properties and directed the appointment of a Commissioner to go into the valuation of the assets sought to be re partitioned.
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 November 22, 1963 and by upholding the findings of the learned Subordinate Judge, Coimbator, 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.
Before going into the merits of the case, it may be necessary to mention a few unique aspects of the present case.
It would appear from the findings arrived at by the two courts that defendant No. 1 was undoubtedly an honest man and defendant No. S 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 had 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 the 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 plaintiff 's father defendant No. 5 was a shrewd business and after his elder brother had suffered from some illness, he was carrying on the business of the family a few years in before the partition.
Both the parties were assisted by an Auditor Mr. K. Narayanswami in effecting the partition by metes and bounds.
In these circumstances, therefore, there could be no question of practising 867 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/ .We shall deal with this point a little later and show that the difference is much more.
Mr. Nariman learned counsel for the appellants submitted two points before us.
In the first place, he assailed the partition of the immovable properties on the ground that no valuation of the properties was fixed according to the market value and that the plaintiffs were not given any share in the agricultural properties.
As regards the movable properties it was argued that the division was wholly unjust and unfair because the lion 's share was taken by defendant No. 1 and the choice made by defendant No. S the father of the plaintiffs was neither wise nor prudent and was extremely detrimental to the interests of the plaintiffs.
As an instance of the unfairness of the partition Mr. Nariman pointed out that a comparison of Schedules A and of Ext.
B 3 would show that defendant No. 1 was allotted movable properties worth Rs. 1,10,274 2 6, whereas defendant No. 5 was given properties worth Rs. 90,142 4 0 there being a difference of about Rs, 20,000/odd.
He also pointed out that shares of Lakshmi Textile Mills were allotted to defendant No. 1 which were extremely valuable and gave very rich dividends, where as defendant No. S was allotted the shares of Lakshmi Sugar Mills which was one of the sick Mills running at a loss whose dividends were insignificant.
We shall consider this contention raised by counsel for the appellants a little later.
The learned counsel appearing for the respondents Mr. Natesan, however, submitted that the present suit is frivolous and has been filed only with a view to harass the defendants and to re open a partition which was both just and equitable and which was entered by both the brothers with their eyes open and with the aid of their financial expert.
Learned counsel for the respondents, further submitted that there is no reliable evidence to show that there was any cash deposits of Rs. 65,000 as mentioned in Sch.
B, and if there was one it would have been divided on the spot instead of being postponed to a future date.
Similarly it was submitted that so far as the shares are concerned they were chosen by defendant No. S himself and their valuation was equal.
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 way injustice or was detrimental in any way to the interests of the minors; In this collection we might try to illustrate our point from the findings of the Trial Court regarding the valuation of the immovable properties divided between the two; brothers.
The partition of immovable properties Ext.
B 1 which appears at pp.
243 to 248 of the Paper Book consists of to Schedules A & B. The Trial Court has, after careful consideration of the evidence, very scientifically itemised the properties 868 allotted to each of the brothers and the value of those properties.
For A instance, item 1 of Sch.
allotted to defendant No. 1 is a tank fed nanja land is Kurichi village measuring 3.80 acres and has been valued at Rs. 4,000/ .
Item 2 is a similar land in village Kurichi which is self cultivated and has been valued at Rs. 7000/ .
Thus [he total value of items 1 and 2 of Sch.
A comes to Rs. 11,000/ .
As against this defendant No. 5 was allotted item 2 of Sch.
which on the basis of capitalised value at the rate of Rs. 601/ per month has been fixed at Rs. 14,000/ .
Items 1 & 2 of Sch.
A are the only agricultural properties possessed by the family and the Trial Court has rightly pointed out that whereas defendant No. 1 took the agricultural properties, defendant No. 5 got urban properties not only of the same value but of a higher value.
Similarly item No. 3 of Sch.
A allotted to defendant No. 1 is a house in the Big Bazaar Street and has been valued at Rs. 16,50/ .
As against this the family house in the Oppanakkara Street has been allotted to defendant No. 5 whose value is much more than item No. 3 of Sch.
The capitalised value of the family house in the oppanakkara Street on the basis of rental of Rs. 700/ per month would come to near about Rs. 96,000 .
Item 4 of Sch.
A is a house and site in Ramanathapuram and has been valued at Rs. 7,000/ because it was purchased in 1938 for a sum of Rs. 5,650/ vide Ext.
B 139 dated March 6, 1938.
The learned Subordinate Judge has roughly put the valuation of the said house and site at Rs. 7,000/ in 194().
As against this item 3 allotted to defendant No. 5 is a shop building in the Big Bazaar Street carrying a rental of Rs. 300/ per month at the time of the partition whose capitalised value would be Rs. 7,000/ .
Item No. 5 of Sch.
A which was allotted to defendant No. 1 has been valued at Rs. 2,300/ representing the purchase price of the property mentioned in Exts.
B 140 to B 142.
As against this item 4 of Sch.
which has been allotted to defendant No. 5 was purchased for a sum of Rs. 2,100/ .
It would 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.
" The High Court upheld the findings of the Trial Court in these words: "Thus in regard to the division of the immovable proper ties it is not possible for us to say that there was unfairness or fraud or irregularity in the allotment of the properties between the brothers.
The scheme of the division of the immovable properties seems to us to be fair and we cannot say that the plaintiffs ' father (5th defendant) acted against the interests of his sons 869 or that the 1st defendant took any advantage of his position as the eldest member of the family and allotted to himself the best among the properties available for division.
We there fore confirm the finding of the learned Subordinate Judge that the partition of the immovable properties effected under Exhibit B 1 is binding on the plaintiffs and that the plaintiffs are not entitled to reopen the partition.
" It is a well settled practice of this Court not to interfere with a con current finding of fact given by the two Courts below in the absence of any extra ordinary or special reasons.
In the instant case we hold that the finding of the l High Court as well as of the Trial Count 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.
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. 12,517 13 0 for defendant No. l and Rs. 12,000/ for defendant No. S 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 be overruled.
We now come to the question of the division of movable proper ties.
In this connection our attention was drawn by Mr. Nariman to Ext.
E 3 which is to be read along with the pencil note of K. Narayana swami D.W. 3, who was the auditor of Defendant No. 1 himself.
Exhibit B 3 is the partition deed of movable properties consisting of shares, deposits, promotes, mortgage deeds and cash, particulars of which are given in Schs.
A & B. Movable properties mentioned in Sch.
A were allotted to defendant No. 1 and those mentioned in Sch.
B, were allotted to defendant No. 5 father of the plaintiffs.
It will 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. 1,00,2081 .
On the defendant No. 1 's 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 35 years.
That apart the learned counsel for the appellants has submitted that the document Ext.
B 3 deliberately omits to mention a sum of Rs. 65,000/ which was a cash deposit alleged to have been kept in the safe and out of which Rs. 10,000/ were agreed to be given to the mother of the two brothers and the rest, viz. Rs. 55,000/ were to b divided between the two brothers, each defendant getting Rs. 27,500/ .
This is 870 undoubtedly proved by Ext.
A 2 where these figures are clearly mentioned.
Entry No. l of Ext.
A 2 runs thus: Total Settlement section M. K. section M. R. (1) (2) (3) (4) (5) (6) Thanichontham 65,000 55,000 27,500 27,500 Belonging exclusively *Scored out in pencil.
This cash amount of Rs. 65,000/ is denied by defendant No. 1 and it is said that this amount might have been hidden money which never came to the share of the parties.
D.W. 3 K. Narayanaswami has positively admitted in his evidence that he had made this entry in his on hand writing but he scored out this entry as the amount was not available.
Both the Suborclinate Judge, Coimbatore and the High Court have accepted the explanation given by D.W. 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 D.W. 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. 200116/ 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 D.W. 3 that the entry was made due to some mistake.
The Courts 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 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 the same.
Defendant No. S has, however, given an explanation that as his elder brother wanted that this money should be divided later he did not want to join issue on the subject and trusted his elder brother.
A perusal 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 consideration.
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 business man 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 undoubtely raised objection at any time before the suit.
This conduct of 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 871 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 very 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/ 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 must prevail.
The only other point that was stressed before us by the learned counsel for the appellants was that the Trial Court was right in ordering the appointment of a Commissioner for going into the assets of the movable properties, particularly the question of the shares of the Lakshmi Mills.
We are, however, unable to agree with this argument.
Mr. Natesan learned counsel for the respondents has drawn our attention to some important documents to show that the shares were equaly divided between defendants Nos. 1 and 5 and were actually chosen by defendant No. 5 with his eyes open.
Exhibit B 153 which is a share market report dated April 5, 1940 shows that the paid up value of each share of Lakshmi Sugar Mills was Rs. 50 but the current price of the share at that time was Rs. 41/8/ i.e. it was Rs. 8/8/ below the paid up value and the dividend paid on the share was only Rs. 9/ yearly.
It was, therefore, suggested by counsel for the respondents that defendant No. 5 was given the choice to take the shares of the Lakshmi Mills or the Lakshmi Sugar Mills and in view of the low market rate of the Lakshmi chose to take the shares of the Lakshmi Sugar Mills to the extent of Rs. 10,000/.
In lieu of the shares of other Mills defendant No. 5 took a cash amount of Rs. 13,000/ as would appear from Ext.
It is true that the shares of Lakshmi Textile Mills went up enormously a few years later in view of the international war situation in the continent but defendant No. 5 could not have foreseen such a contingency and if he had made the choice which he thought would be beneficial to the interests of the minors his conduct would have been at best an error of judgment which would not be sufficient to reopen the choice made by him.
Mr Nariman, however, strenuously relied on the evidence of D.W. 3 Narayanaswami Auditor which was to the effect that he expressed great surprise when defendant No. 5 chose the shares of Lakshmi Sugar Mills and in his opinion that was his foolish act.
This is, 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 opting 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 movable properties, therefore, was correctly divided between the parties.
872 Learned counsel for the respondents submitted that taking a broad view of the whole case the Court should hold that it was not a case of unfair or unjust partition, because both defendant Nos. 1 and 5 were persons who had shrewd business experience and had voluntarily accepted the partition of the properties which was by and large equal.
The learned counsel relied on the decision of this Court in Devarajan and Ors.
vs Janaki Ammal and Ors(1) where this Court observed as follows: "Generally speaking, a partition once effected is final and cannot be reopened on the ground of mere inequality of shares, though it can be reopened in case of fraud or mistake or subsequent recovery of family property: [see Moro Vishvanath vs Ganesh Vithal Further an allotment bona fide made in the course of a partition by common consent of the coparceners is not open to attack when the shares are not absolutely equal, or are not strictly in accordance with those settled by law.
It is true that minors are permitted in law to reopen a partition on proof that the partition has been unfair and unjust to them.
Even so, so long as there is no fraud, unfair dealing or over reaching by one member as against another, Hindu law requries that a bona fide partition made on the basis of the common consent of coparceners must be respected and is irrevocable:" It was submitted that the evidence and circumstances of the case clearly show that there was no inequality of shares and the plea of fraud or mistake has not been accepted by the courts and that on the whole the partition was bond fide.
It is true that if this was the position the ratio of the decision in Devarajan 's 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 movable 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 movable properties has to be reopened.
Moreover in an earlier decision of this Court in Bishundeo Narain and Anr.
vs Seogeni Rai and Jagernath it was observed: "It is well established that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor 's benefit.
It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors.
Even without a suit, there can be a partition between members of a joint family when one of the members is a minor.
In the case of such lastly mentioned 873 partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside.
" In our opinion the present case falls within the ratio laid down by the decision cited above.
Apart from that there are numerous authorities which have sonsistently 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.
In Lal Bahadur Singh vs Sispal Singh and Ors.(1) it was observed that even though the ground of fraud and mistake failed, the partition which affected the interests of the minor could be reopened.
Similarly in Chanvira 'Pa ' vs Da 'Na ' 'Va ' & Ors.(2) a Division Bench of the Bombay High Court held that a partition will be binding on the minors only if it was just and legal, but if it was made and finalised there being no means of testing the validity of the assets the partition was not final.
The same view was taken in Maruti vs Rama(3) 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 bindig 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 interests 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 movable 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 874 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. 31500/ .
Thus the total amount payable to the plaintiffs comes to Rs. 46,500/ .
We, therefore, allow the appeal in part and modify the decree of the High Court to the extent that there will be a decree for a sum of Rs. 46,500/ in favour of the plaintiffs/appellants which represents their share of the movable properties of which they were deprived of.
The plaintiffs would be entitled to future interest at the rate of 6% per annum till payment.
In the circumstances of the case, there will be no order as to costs.
This course, in our opinion, safeguards the interests of the minors to give them their just due and to protect them from a protracted and fruitless litigation.
V.P.S. Appeal partly allowed.

summary:
(1) A partition effected between the members of an Hindu Undivided Family by their own volition and with their consent cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence.
In such a case.
the Court should require 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 a bona fide manner keeping into account the interests of the minors.
(3) But if the partition is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can be reopened after any length of time.
In such a case, it is the duty of the Court to protect and safeguard the interests 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 movable 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.
[873D 874B] In 1940, two brothers, defendants 1 and 5 partitioned their movable and immovable properties by two separate transactions.
At that time defendant S had two sons who were minors.
They and their minor brothers filed a suit in 1952 for cancellation of the partition and for re opening it on the ground that the partition was unjust and unfair and had the effect of depriving the minors of their legal shares in the properties.
The trial court passed a preliminary decree for re partition of the movable properties as it was ex facie unjust and unfair and directed appointment of the Commissioner to go into the valuation of the assets sought to be partitioned while holding that the partition of immovable properties was neither unjust nor unfair.
In appeal, the High Court agreed with the findings of the trial court but set aside the direction of the trial court for the appointment of Commissioner; quantified the value of the disparity in the share of the plaintiffs and passed a decree to the extent of 2/5th share of Rs. 17.700.
In appeal to this court, passing a decree for a sum of Rs. 46,500/ with future interest in modification of the High Court 's decree, ^ HELD: (1) The division of immovable properties was just fair and equal.
The properties were not actually valued according to the market rate and only a notional valuation had been given in the partition deed; but, in view of the detailed examination by the two courts of the facts regarding capitalised value of the properties allotted to the two brothers, it could not be said that the partition of the immovable properties was either unfair or unjust.
This court will not interfere with concurrent findings of the fact given by the courts below in the absence of any extraordinary or special reasons.
[868E F; 869B C] 2(a) But a perusal of the schedules to the partition deed relating to movable properties shows an ex facie disparity of about Rs. 10,000.
[874B] (b) Further, the evidence disclosed that a sum of Rs. 55.000 with defend ant 1, was agreed upon between the brothers to be divided later, but this 7 1127 SCI/75 864 amount was not included in the partition deed.
Assuming that defendant 5 had not taken any objection, since the amount was very large, his Silence or his acquiescence in allowing his elder brother to swallow the amount was not a prudent act and has caused serious detriment to the interests of the minors which he had to protect because.
he and his minor sons were member of an Hindu Undivided Family.
[870H 871B] (c) Taking these two sums into account and calculating the plaintiff 's share in 1940 and adding interest thereon till date of decree, the plaintiffs would be entitled to Rs. 46,500.
[874D E] (d) The High Court was right in holding that it would not be in the interest of the minors or.
Of justice to order the appointment of a Commissioner for re opening the entire partition when the shares of the plaintiffs are easily ascertainable in terms of money and can be quantified.
[874C D] Bishunodeo Narain and vs Seogeni Rai and Jagernath.
556, followed.
Devarain and ors.
vs Janaki Ammal and Ors.
C.A. No. 2298 of 1066 dated r March 20, 1967, Lal Bahadur Singh vs Sispal Singh and ors.
T.L.R. 14 All 498; Chanvira 'Pa ' vs Da 'Na ' 'Va ' & ors.
I.L.R. and Maruti vs Rama I.L.R. referred to.