JAIN Vs. TUKARAM

JUDGEMENT

(1.) THIS appeal is against the decision of the lower appellate Court affirming the plaintiff's right to reopen a partition effected in 1907 during his minority so far as it related to the fields on the ground that it is unfair, unequal and prejudicial to the minors' interest. The plaintiff's right to do so is challenged on three grounds : (1) that a suit for partial partition does not lie; (2) that the claim is barred by limitation on the ground that it was filed more than three years after plaintiff attained majority or 12 years after partition; and (3) that the plaintiff's allegations of fraud or mistake are vague and indefinite and that the lower appellate Court has not given a distinct finding as to whether the inequality or unfairness was due to fraud or mistake as alleged.

(2.) I think none of these contentions can be entertained in second appeal. The lower Courts have given good reasons for upholding the plaintiff's right to a partial reopening of the partition so far as the fields are concerned. It is not the defendants' case that the apparent inequality of shares of fields which is the best proof of unfairness and pre-judice to the minors' interest was compensated by allotting a large share of house property to the plaintiff and his brother Yeshwant's share. I cannot, therefore, entertain the first ground. As regards the question of limitation: suffice it to say that the right of a minor coparcener to reopen partition accrues on knowledge of facts entitling him to re-open, and limitation must, therefore, run against him from the date of such knowledge. Here the finding is that the plaintiff got knowledge only in 1919 and as ho filed the suit in 1920 he is well within time. As regards the third and the last objection : I think the defendant should have, by serving interrogatories on plaintiff, called upon him to make more specific allegations of fraud or mistake if he was not satisfied with the version already given in the plaint. It is too late for him to urge that plea now. The lower appellate Court has not given a distinct finding as to whether the inequality was due to fraud or to mistake. I think this may not be necessary as it was sufficient if the inequality was due to either of the two and has resulted in unfairness and prejudice to the minor. The defendants' appeals, therefore, fail, so far as the plaintiff's right to reopen the partition once made is concerned.

(3.) THE appeals virtually fail on their merits and are dismissed with costs; the decrees of the lower appellate Court will be confirmed with the variation set forth above.