Judgment

GHULAM HASAN, J.: This appeal is brought by leave of the High Court of Bombay against the judgment and decree of a Division Bench of that court (Bavdekar and Dixit JJ.) dated March 25, 1952, modifying the judgment and decree of the Civil Judge, Senior Division of Thana, dated June 30, 1951.

2. The appeal arises out of a partition between 6 brothers of a joint Hindu family. The joint family carried on joint family business of a 353 grocery shop, liquor shops, a ration shop, a motorbus service and also money-lending under the name of "Sontakke Brothers". The family also possessed immovable and movable property. Balkrishna Sitaram Sontakke is the eldest of the brothers and is the plaintiff to respondent in the present appeal. He will be referred to hereafter as the plaintiff.

3. It is common ground that up to 1944 the brothers were living and messing together and the income from the family business used to be kept with the plaintiff. From. April 14, 1945, the situation changed and the parties began to appropriate the proceeds of the various businesses carried on by them separately to themselves. The plaintiff was running the liquor shops, defendants 1 and 2, who are the appellants, were carrying on the motor-.bus service business while defendant 4 was running the grocery shop. The parties tried to have partition effected between them through arbitrators but the attempt failed. On June 29, 1945, all the five brothers filed a suit for partition against the plaintiff of all joint family properties including the accounts of all the businesses. The suit was numbered 39 of 1945. It was compromised on March 7, 1946.

By this compromise it was declared that prior to 1942 all the accounts of the various businesses had been correctly maintained and shown, that the parties had agreed to have arbitrators appointed through court for examining the accounts from 1942 up to March 31, 1946, and for determining the account due up to that date. Each of the brothers was to get one-sixth share in the cash balance as found on March 31, 1946, upon examination of accounts by the arbitrators. All the moveable property of the joint family including the stock-in-trade of all the family businesses was to be divided equally among all the brothers. The compromise further declared that the plaintiff was to have one-sixth share in the motor garage and that defendants 1 and 2 were to pay the price of one sixth share to him. These are the material provisions of the compromise.

One of the brothers was a minor and the court finding the compromise to be for the benefit of the minor accepted it and passed a preliminary decree in terms of the compromise on July 25,1947. If nothing else had happened to disturb the natural course of events, the proceedings would have ended in a final decree for partition.

The plaintiff, however, commenced a fresh suit on February 23, 1949, confining his relief to his share of the profits and assets of the motor business carried on by defendants 1 and 2 after March 31, 1946. His case was that the compromise was made in a hurry, that the parties omitted to provide in the compromise about the future conduct of the motor business was still a joint family business and that he had a right to ask for accounts of that business subsequent to March 31, 1946.

4. In defence it was pleaded that the compromise was made after due deliberation, that accounts of the motor business and the grocery shop should actually have been taken up to April 14, 1945, the date of disruption of the joint family status, but the parties agreed by way of compromise that account of all family business should be taken up to March 31, 1946, It was also pleaded that the claim was barred by res judicata .

Upon the Issues framed in the case the Civil Judge found that the suit was not barred by reason of the decision in the previous suit No. 39 of 1945, that the decision in that suit was not obtained by fraud and misrepresentation and that the compromise in the previous suit w