R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH LEGAL REPRESENTATIVES AND OTHERS

p. 376 Copy page pinpoint

A constitutes the very foundation of reunion. This is evident from the text of Brihaspati in which even the relationship of persons who could reunite is specified though some of the commentators have taken the view that it is only illustrative and not exhaustive and that reunion is possible even among persons not specified in the text of Brihaspati. (See: Virmitrodaya, translated by B Gopalachandra Sarkar (1879) pp 204-205; Vivadachintamani Gaekwad’s Oriental Series Vol. XCIX pp 288-289). But even so there is no controversy that reunion is possible only among persons who were on an earlier date members of a HUF. Reunion therefore is a reversal of the process of partion. Therefore, it is reasonable to take the view that reunion is not merely an agreement to live together as tenants in common, but is intended to bring about a fusion in interest and estate among the divided members of an erstwhile HUF so as to restore to them the status of HUF once again and therefore reunion creates right on all the reuniting coparceners in the joint family properties which were the subject matter of partition among them to the extent they were not dissipated away before the date of reunion. That would be the legal consequence of a genuine reunion is forcefully brought about by the text of Brihaspati, which provides “where coparceners have again reunited through affection, they shall mutually participate in each others properties”. Mitakshara states that mixing up of divided properties is the effect of reunion. Therefore it follows, no coparcener, who is a party to a reunion and who admits reunion, shall be heard to contend that the property which he had got at an earlier partition and still with him has not become the property of the reconstituted HUF. But there can be no doubt that reunion, when disputed must be proved as any disputed question of fact and the circumstances that all the reuniting members have not brought back their properties to form the common-stock, may support the plea taken by any concerned party that there was no reunion. However, if reunion is admitted by all the parties to the reunion or it is proved, the share of the properties of reunited members got at an earlier partition and in their possession at the time of reunion becomes the properties of the joint family, notwithstanding the fact that some of them have failed to throw those properties into the common hotch pot, whether with or without the knowledge or consent of each other. It is a H different aspect if reunion itself is not admitted by the persons

R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 377 LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

who are parties to a reunion and it is not proved by the party A pleading reunion, in which event there would be no reunion at all.”

83Copy pinpoint83. We may now notice the judgment of this Court dealing with reunion in a Hindu Undivided Family. In Bhagwan Dayal Vs. Reoti Devi, AIR 1962 SC 287, this Court examined the principles of Hindu B Law and principles of Hindu Joint Family. In paragraph 16, it was held that the general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. In the above case, one of the questions was as to whether there was reunion between members of the Joint Family after partition. This Court quoted with approval the C judgments of Privy Council in Palani Ammal (supra) and laid down following in paragraph 22:- “22. For the correct approach to this question, it would be convenient to quote at the outset the observations of the Judicial Committee in Palani Ammal v. Muthuvenkatacharla Moniagar D [(1924) LR 52 IA 83, 86] : “It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, E of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Baldbux Ladhuram v. Rukhmabai [(1903) LR 30 IA 190] .” It is also well settled that to constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint Hindu family. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on a party asserting reunion, ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. The legal position has been neatly summarized in Mayne’s Hindu law, 11th Edn., thus at p. 569: H

p. 378 Copy page pinpoint

A “As the presumption is in favour of union until a partition is made out, so after a partition the presumption would be against a reunion. To establish it, it is necessary to show, not only that the parties already divided, lived or traded together, but that they did so with the intention of thereby altering their status and of forming a joint estate with all its usual incidents. It requires B very cogent evidence to satisfy the burden of establishing that by agreement between them, the divided members of a joint Hindu family have succeeded in so altering their status as to bring themselves within all the rights and obligations that follow from the fresh formation of a joint undivided Hindu family.” C As we give our full assent to these observations, we need not pursue the matter with further citations except to consider two decisions strongly relied upon by the learned Attorney- General. Venkataramayya v. Tatayya [AIR 1943 Mad 538] is a decision of a Division Bench of the Madras High Court. It was pointed out there that “mere jointness in residence, food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest unless an intention to become reunited in the sense of the Hindu law is clearly established”. The said proposition is unexceptionable, and indeed that is the well settled law. But on the facts of that case, the learned Judges came to the conclusion that there was a reunion. The partition there was effected between a father and his sons by the first wife. One of the sons was a minor. The question was whether there was a reunion between the brothers soon after the alleged partition. The learned Judges held that as between the sons there was never any reason for separation inter se, and that the evidence disclosed that on their conduct no explanation other than reunion was possible. They also pointed out that though at the time of partition one of the brothers was a minor, after he attained majority, he accepted the position of reunion. The observations relied upon by the learned Attorney-General read thus: “In our view, it is not necessary that there should be a formal and express agreement to reunite. Such an agreement can be established by clear evidence of conduct incapable of explanation on any other footing.” H

R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 379 LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

This principle also is unexceptionable. But the facts of that case A are entirely different from those in the present case, and the conclusion arrived at by the learned Judges cannot help us in arriving at a finding in the instant case.”

84Copy pinpoint84. The above observations indicates that this Court also approved the Madras High Court judgment in Mukku Venkataramayya(supra). B Again this Court in Anil Kumar Mitra and Ors. Vs. Ganendra Nath Mitra and Ors., (1997) 9 SCC 725 held that the acts of the parties may lead to the inference that parties reunited after previous partition. In paragraph 4, following observations have been made:- “4. …………………………It is true that by the acts of the parties that even after the previous partition, they continued to be members of the joint family. But it should be by conduct and treatment meted out to the properties by the members of the family in this regard……………………………”

85Copy pinpoint85. Now, we look into other materials on record. The ancestral house of the parties was at Helmet, Sedapalayam, Village Karumathampaty where three brothers alongwith their father A.V. Kandaswamy used to live. DW2 in her statement has also stated that after she was married with Rangasamy, she lived at ancestral house at Sedapalayam. Further the three brothers in the year 1963 purchased the house site at HemletSomanur and constructed a new house where three brothers with their families shifted and lived at Somanur which become the new home of the Joint Family consisting of three brothers. The new house was constructed after purchasing the land in the year 1963 and the families of the three brothers started living at about in 1964, which clearly indicate that intention of all the brothers was to live jointly and continue as Joint Hindu Family. After partition dated 07.11.1960, three branches have purchased several immovable properties together, details of which are as follows:- i) Sale deed dated 09.06.1962 filed as exhibit A-42 in favour of (a) K.Rangasamy, (b) S.K.Kumarasamy and (c) G S.K.Chinmasamy of the land to the extent of 5.6 acres in Karumathampaty village. ii) Sale deed dated 16.10.1963 which has been filed as exhibit A-43. By sale deed, property was purchased for construction of house only which fact was stated in the sale deed itself. H

p. 380 Copy page pinpoint

A The sale deed was in the name of three brothers (a) K.Rangasamy, (b) S.K.Kumarasamy and (c) S.K.Chinmasamy. iii) On 14.09.1972, by three sale deeds which were filed as exhibit A-41, B-10 and B-11, huge property situated at B Coonoor namely High Field estate was purchased in the name of S.K.Kumarasamy, S.R.Somasundaram(minor in the guardianship of his mother Mrs. Janakiammal), S.R.Shammugha velcyutham in which estate the family carried business.

86Copy pinpoint86. The three branches continued joint business by establishing firms and companies which was carried by joint family in the partnership or by private company. It was only the members of the family, who were shareholders and directors. The purchase of various immovable properties in the names of the three branches clearly indicate the intention that all the three branches are joint and they are purchasing the properties D in the name of all the three branches. After the death of Rangasamy in the year 1967, it was S.K. Kumarasamy, defendant No.1, who took the reins of the family being the eldest. The plaintiff and defendant No.10, sons of Ranagasamy were very young at the time when their father died and thereafter they were under the guidance and control of defendant E No.1 and the materials on the record indicate that it was the defendant No.1 under whose guidance, all businesses were carried out. Even the Suit No.37 of 1984 which was filed for partition of properties was at the instance of defendant No.1, which pleadings have been made by the plaintiff of that suit when he filed written statement in Suit No. 1101 of

1987. The plaintiff of Suit No.37 of 1984 Senthil Kumaravel in his written F statement in Suit No. 1101 of 1987 has clearly stated that he filed the Suit No.37 of 1984 at the instance of defendant No.1, which fact has also been noted in paragraph 9 of the trial court’s judgment.

87Copy pinpoint87. It is relevant to note that in suit No.1101 of 1987, it was only D-1, who filed the written statement and appeared in the witness box. G D-4, S.K. Chinnasamy, neither filed written statement nor came to the witness box. It was D-1 who was pleading that joint family came to the an end after partition dated 07.11.1960. D-1 in his written statement and in his oral statement before the court has come up with the case that there was partition of the properties on 08.03.1981 and an agreement was entered between the three branches and compromise decree dated

R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 381 LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

06.08.1984 was passed to implement the agreement which was entered in the year 1981. In the written statement filed by D-1 to D-3, in paragraphs 16 and 17, following was pleaded by D-1:- “16....The arrangement to put an end to the co-ownership had been arrived at even in 1981 and separate ownership had been agreed upon. Hence there could be no representation or assurance as alleged in the plaint. 17....As the mode of division and allotment of the various items had been agreed upon previously and the amounts were paid to the 4th defendant the compromise was arrived at, an early date in a smooth manner and the decree was passed in terms thereof. C The decree has also been registered. At the terms of the agreement were being incorporated in the compromise the parties were advised that it was not necessary to refer to the agreement dated 08.03.1981 in the compromise.”

88Copy pinpoint88. The case of partition of all properties by agreement dated D 08.03.1981 standing in name of different branches including the branch of Rangasamy was the case of defendant No.1 who was the eldest member of the family and has been denying the jointness of the family after 07.11.1960. D-1 S.K. Chinnasamy appeared in witness box as DW-2. In his cross examination dated 10.04.1997, DW-2 stated: - E “In March, 1981, we divided the common properties. On 08.03.1981 we reduced the same in to a written agreement, written on stamp paper, and we signed the same. Myself, 4th, 7th and 10th defendants and the plaintiff signed in it. Three copies were taken. The same has not been filed. All of us had signed in all the three copies. We took possession of our respective shares in the properties. After F 08.03.1981 the common properties were not in joint possession and common enjoyment of all...”

89Copy pinpoint89. Further in his cross-examination on 11.08.1997, D-2 further stated: - G “...I had stated that division of all properties was done in 1981. The arrangement that was decided in 1981 was implemented in 1984 under the decree. Nothing new was done. As per the arrangement decided in March, 1981, Vasudev Mill having 16 acres of land and buildings and the machineries belonging to the mill were allotted to the branch of my elder brother...” H

p. 382 Copy page pinpoint

A The trial court in its judgment dated 30.09.1997 in paragraph 28 held:- “28....the agreement that had been executed on 08.03.1981 is genuine and it is clear that it has come into force and that the shares which were more or less raised afresh were given to the plaintiff branch and that after the year 1981, the family of the 1st defendant, had relieved themselves from Swamy & Co., Rangasamy Brothers. Swamy Textiles, Rengavilas Warfing & Sizing Factory and that it had been proved through the oral evidence and the documentary proof and that through the Ex.A12 document, the plaintiff and the 10th defendant were in the management of the mill and the same had been clearly proved and that after 08.03.81, the 1st defendant had obtained the right in the estate and that it is clearly proved through Ex.B67 and that it is the stock register maintained in the Sciefield Tea Factory and that it would reveal that till March, 1981 and 10th defendant had signed in the register and that thereafter the 1st defendant had signed in the same is clearly revealed, in the Ex.B68, 69 gate pass also it is found as above and that from this, it is clearly revealed that after the 1981, the above said agreement was brought into force and that it is proved clearly and that it had been indicated on the side of the plaintiff that it is incorrect to state that the property at E Coonoor, Veerakeralam is in the custody of the 1st defendant and the properties at Somanur are lying with the 4th defendant and that the plaintiff had accepted in the evidence that he had not managed the property at Coonoor, and that from this it is clearly revealed that the above said agreement was brought into force.”

90Copy pinpoint90. Further in paragraph 159, the trial court again held that agreement of the year 1981 is genuine and it was brought into force and the argument of DW-1 is found to be acceptable.

91Copy pinpoint91. The agreement dated 08.03.1981 was denied by the plaintiff. The plaintiff’s case was that at no point of time, there was any agreement G entered between parties in the year 1981 to divide the properties standing in the names of three branches. The agreement dated 08.03.1981 was not filed by D-1 in the evidence. The agreement was not filed nor exhibited by the defendant, D-1.

92Copy pinpoint92. In the written statement which was filed by D-1 in O.S. No.37 H of 1984, no plea was taken regarding agreement dated 08.03.1981. It

R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 383 LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

was for the first time in the written statement filed by D-1 in suit No.1101 A of 1987 that mention of agreement dated 08.03.1981 was made. Neither any agreement dated 08.03.1981 was filed or proved nor there is any other evidence on record to prove the division of properties between three branches in the year 1981.

93Copy pinpoint93. It is the case of the defendant No.1 that the compromise decree dated 06.08.1984 is nothing but implementation of agreement dated 08.03.1981. It is, thus, clear that the case of D-1 is that there was partition of all properties standing in the names of three branches and allocated to different branches on 08.03.1981, which has been subsequently implemented by consent decree dated 06.08.1984. As per the case of defendant, the Vasudeva Textiles Mills was given to the branch of Rangasamy, property at Coonoor was taken by D1 and properties at Somnur by D-4.

94Copy pinpoint94. When the D-1 comes with the case that there was partition on 08.03.1981 of all immovable properties standing in the names of three branches, which was implemented on 06.08.1984, the conclusion is irresistible that family was joint and had the three branches were not part of joint Hindu family, there was no occasion for attempting any partition on 08.03.1981 as claimed by D-1. The fact that defendant No.1 is coming with the case that there was partition on 18.03.1981 itself proves that three branches were joint till then as per case of D-1 himself. E

95Copy pinpoint95. It is to be noted that plaintiff never admitted the agreement dated 08.03.1981 or alleged partition of 08.03.1981, it is, thus, clear that parties remained joint and properties standing in the names of three branches remained joint till the consent decree was passed on 06.08.1984.

96Copy pinpoint96. Thus, in the year 1979 when residential property of Tatabad F was obtained in the name of defendant No.1, all three branches were part of the joint Hindu family and the house property purchased in the name of one member of joint Hindu family was for the benefit of all.

97Copy pinpoint97. Both the Courts below although accepted the partition dated 18.03.1981 as pleaded by D-1 but erred in not considering the G consequence of such pleading. When partition of all immovable and movable properties is claimed on 08.03.1981, the conclusion is irresistible that the family was joined till then. The theory set up by D-1 that all the three branches were separate after 07.11.1960 is denied/belied by claim of partition on 08.03.1981. H

p. 384 Copy page pinpoint

98Copy pinpoint98. Both the trial court and High Court have given much emphasis on the fact that three branches were filing separate Income-Tax Returns and Wealth Tax Returns after 1967. An individual member of joint Hindu Family can very well file his separate Returns both under the Income Tax Act as well as Wealth Tax Act and filing of such Returns was not conclusive of status of the family. The plaintiff’s case throughout was B that family continued to be joint after 07.11.1960 and D-1 who alone had filed the written statement and appeared in the witness box having come with the case of partition on 08.03.1981 which he claims to be implemented on 06.08.1984 by Compromise Decree, it is proved that family was joint at least till then, i.e., 08.03.1981 or 06.08.1984. Thus, in the year 1979, C when the Tatabad residential property was acquired, the three branches were joint.

99Copy pinpoint99. The Tatabad residential property was for the benefit of all the three branches which is further proved from the fact that the consideration for the said amount was not paid by DW-1 from his separate account or D in cash. The amount was drawn from the private limited company Swamy and Swamy Plantation Private Limited in which all the three branches were shareholders and Directors. The Swamy and Swamy Plantation Company had not purchased the residential property at Tatabad for the company. The Swamy and Swamy plantation private company is not the owner of the residential property and the residential property at Tatabad E is a joint family property for the benefit of all the three branches.

100Copy pinpoint100. We thus conclude that all three branches have equal share in the Tatabad residential property, i.e., Item No.X of Schedule ‘B’ of plaint in Original Suit No.1101 of 1987. This residential property being not a part of O.S.No.37 of 1984, there is no bar in seeking partition of the said property by the plaintiff. Accordingly we declare that plaintiff/defendant No.7, defendant No.1 and defendant No.4 are entitled to 1/3rd share jointly in the aforesaid Item No.X of Schedule ‘B’ of the suit property ( 1/3rd share each to K. Rangasamy branch, S.K. Kumarasamy branch and S.K. Chinnasamy branch). Accordingly, a preliminary decree for partition shall be drawn for the aforesaid property.

101Copy pinpoint101. Civil Appeal No.1537 of 2016 and Civil Appeal No.1538 of 2016 are partly allowed. Consequently, the Original Suit No.1101 of 1987 stands decreed to the extent indicated above, by granting a decree of partition of Item No.X of Schedule ‘B’, i.e., “In Coimbatore Registration H on District, Coimbatore Corporation Limits, Tatabad, Dr. Alagappa

R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 385 LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

Chettiar Road, D.No.101, Extent 0.33 acres with 4500 sq.ft. built-up A residential building.”

102Copy pinpoint102. Parties are at liberty to make an application before the trial court for passing an appropriate final decree and such application is to be disposed of by the trial court in accordance with law.

103Copy pinpoint103. Parties shall bear their own costs. B

Devika Gujral Appeals partly allowed.