Judgment

CHINNAPPA REDDY, J.:- The legal representatives of the fifth defendant and defendants 6 to 15 in Civil Suit No. 17-A of 1957 in the Court of the Additional District Judge, Narsinghpur are the appellants in this appeal by special leave. Mannulal (5th defendant) and Rajaram 1st defendant, both of whom died during the pendency of the suit, were brothers. They were the sons of Pusau. The plaintiff, a son of Rajaram and a minor on the date of the institution of the suit filed the suit for partition and separate possession of a one-eighth share in the properties mentioned in Schedule A of the plaint and also for an account from defendants 5 to 8 of the assets and income of the business, "Mannulal Lakhanlal". It was alleged in the plaint that with the capital given to them by their father, Pusau, Mannulal and Rajaram started the business of manufacturing Bidis. After the death of Pusau in 1936 the business was continued by the two brothers. In 1948 Mannulal represented to Rajaram that in order to avoid income-tax it was necessary that there should be a nominal partition and that the joint family business should be converted into a partnership business. Accordingly the firm "Mannulal Lakhanlal" was registered under the Partnership Act. Mannulals share was shown as 10 Ans. 8 ps. in a rupee while Rajarams share was shown as 5 Ans. 4 ps. In 1953 Babulal and Sunderlal, sons of Mannulal, were also shown as partners. The share of Mannulal was reduced to 5 Ans. 4ps. and the share of Babulal and Sunderlal was shown as 5 Ans. 4 ps. All this was done nominally with a view to avoid income-tax. The houses belonging to the family were also divided. Rajaram was given one-third share and Mannulal took two-thirds share. The partition of ancestral property and business between the two brothers Rajaram and Mannulal, even if true, was "unequal, unfair and unconscionable." The partition and the formation and dissolution of the firm did not bind the interest of the minor plaintiff and all his brothers. It was further alleged in the plaint that Mannulal promised Rajaram at the time of the fictitious partition that he would be given his half share when a real partition was made. It was on those allegations that the plaintiff, a minor, represented by his next friend Harchand filed the suit, out of which the appeal arises, for the reliefs already mentioned. The suit was contested by Mannulal and his sons who pleaded that the business was not a joint family business and that it was a purely partnership business. The allegations that the partition was nominal and that the formation and dissolution of the partnership were nominal, were denied. It was pleaded that there was a complete disruption of the family on 31st March, 1948. The partition was not unfair. After the partition the two brothers decided to run the Bidi manufacturing business in partnership, with Rajaram taking a share of 5 Ans. 4 ps. and Mannulal taking a share of 10 Ans. 8ps. During the pendency of the suit a reference was made to arbitration and the arbitrators gave an award under which it was directed that a sum of Rs. 12,000/- was to be paid to each of the two minor sons of Rajaram to equalize the shares of the two branches. The contesting defendants filed an application to set aside the award claiming that the Arbitrators had given their award without any enquiry and without giving the parties a chance to adduce evidence. It was also claimed that the Arbitrators had found that the earlier partition was not fraudulent and that it was also not the result of any misrepresentation and on that finding the Arbitrators had no jurisdiction to reopen the partition. The Trial Court set aside the award on the ground that the Arbitrators had made the award without any enquiry and without giving the parties a chance to adduce evidence. The plaintiff preferred an appeal to the High Court. The appeal was dismissed by the High Court on 10th January, 1962. The High Court upheld the finding of the Tri