JUDGMENT

FAZL 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 cancellation of partition made between the father of the plaintiff, who is defendant No. 5 and defendant No. 1, the elder brother of defendant No. 5. It appears that as far back as May 10, 1940 the two brothers, namely S. M. Kuppuswami Chettiar defendant No. 1 and S. M. Ranganatham Chettiar defendant No. 5, who were originally members of Undivided Hindu Family partitioned their shares by virtue of a registered partition deed dated May 10. 1940. At the time when the partition was made plaintiffs Nos. 2 to 4 were minors and defendant No. 3 was also 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. K. Narayanswami who was the family auditor of defendant No. 1 and was his friend and adviser. The partition deed with respect to the immovable properties is Ext. B-1. which appears 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 the partition deed is Ext. B-3. which consists of two Schedules-Schedule A and Schedule B-movables mentioned in Sch. A were allotted to defendant No 1 and those contained in Sch. B were allotted to the share of defendant No, 5.

2. The plaintiffs case was that the two brothers who were members of the Undivided Hindu Family along with the plaintiffs and other minor coparceners betrayed the interests of the minors and the division made between them was both unjust and unfair and had the effect of depriving the minors of their legal shares in the properties the lion s share having fallen to the lot of elder brother defendant No. 1 S. M. Kuppuswami Chettiar hereinafter referred to as S. M K. . The plaintiffs father who is defendant No 5 being a person of weak intellect did not care to protect the interests of the minors and he accordingly accepted any share that was allotted to him without any objection. Defendant No. 5 S. M. Ranganathan Chettiar would be hereinafter referred to as S.M.R. . Plaintiffs also alleged that the partition was secured by practicing fraud and undue influence and by suppressing large assets belonging to the family which were taken by defendant No. 1 by taking advantage of the weakness of the plaintiffs father.

3. We might mention at the outset that Mr. F. S. Nariman the learned counsel for the appellants did not at all press the plea of fraud and undue influence taken by the plaintiffs before the Trial Court and confined his arguments only to the allegation that the partition effected between the two brothers S. M. K. and S. M. R. was at the very face of it unjust and unfair and detrimental to the interests of the minors. The plaintiffs also laid claim to a sum of Rs. 10,000/- from the cash deposit which is said to have been given to the mother of defendants 1 and 5 but this claim was not pressed before us in the course of the arguments. Other minor claims which were also made before the Trial Court were not pressed before us.

4.The suit was resisted by defendant No, 1 S.M. K. and his minor sons defendants 1 & 4 and a minor son defendant 3 who however attained majority during the pendency 3 of the suit before the Trial Court. We might also mention here that plaintiffs Nos. 2 to 4 sons of S.M.R. were also minors at the time when the suit was filed but plaintiff No. 2 attained majority on October 3, 1958 just about ·a month and a half before the judgment in the suit was delivered by the Subordinate Judge Coimbatore. The defendants stoutly denied the allegations made by the plaintif