PROJECT ASSIGNMENT: FAMILY LAW IIREOPENING AND REUNION OF PARTITION (A STUDY THROUGH CASE LAWS) SUBMITTED BY: AMIT AGRAWAL ID. NO.: BLIL 1147 DATE OF SUBMISSION: 11th April, 2004. NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE. TABLE OF CONTENTS TABLE OF CASES.............................................................................................................3 INTRODUCTION...............................................................................................................4 RESEARCH METHODOLOGY........................................................................................5 REOPENING OF PARTITION...........................................................................................6 MINOR COPARCENERS........................................................................................6 FRAUD..........................................................................................................................8 MISTAKE......................................................................................................................9 AFTER BORN SON................................................................................................11 ADOPTION................................................................................................................13 ABSENT AND DISQUALIFIED COPARCENRERS.....................................14 REUNION.........................................................................................................................15 NATURE OF EVIDENCE......................................................................................15 PARTITION AND PRESUMPTION THEREOF.............................................17 WHO MAY REUNITE............................................................................................18 CONSTRUCTION OF REUNION AGREEMENT........................................19 CONCLUSION..................................................................................................................21 BIBLIOGRAPHY..............................................................................................................23 Hari Shanker AIR 1979 SC 1436. 636. Jnanendra AIR 1960 Cal 281. Commissioner of Income Tax 135 ITR 673 (1982). 14. R. 9. Mangalan AIR 1928 Lah 122. 12. Anant Bhikappa v. Debabrata Ghose v. Shankar Ramchandra 46 Bom. Balbux Ladhuram v. 11. 3. 2. 10. Ratnam Chettiar v. Ganpat v. Hira Singh v. L. Ganeshi Lal v. 4. Biyyala Chinna Narasamma v. Parmanand L Bajaj v. Sukhrani v. Annapurnabai AIR 1952 Nag 2. 8. 7. Narayana Reddiar AIR 1965 Mad 409. . A Venkappa Bhatta v. Balasubramania Reddy v. 19. Biyyala Venkata Narasi Reddy AIR 1954 Mad 282. 16. 6. Ramaswami Goundar (1944) II MLJ 146. Ramkrishna Krishnarao MANU/MH/0125/1952. Balaji Ganoba v. Bhagwan Dayal v.TABLE OF CASES 1. Hirabai AIR 1957 Bom 59. Parshuram v. 18. 5. Ramchandra Shrinivas v. Athilinga Goundar v. Babu Lal 40 All 374. 17. S M Kuppuswami Chettiar AIR 1976 SC 1 20. Ram Narain Chaudhary v. Mt. Pan Kuer (1934) LR 62 IA 16. Nanuram v. Radhabai AIR 1940 Nag 241. Banwari Lal (1923) LR 50 IA 192. Gopalrao 1899) ILR 23 Bom. 13. 15. Reoti Devi AIR 1962 SC 287. Jatti v. Rukhmabai (1903) LR 30 IA 130. Gangamma AIR 1988 Ker 133. 1. Partition once made can not ordinarily be reopened for Shastras say. once is a damsel given in marriage. As per Yajnavalka.INTRODUCTION When and under what circumstances. questions of ownership among Hindus were first considered.al. his only remedy remains in claiming for partition.. I give. Hindu Law: Principles and Precedents (Madras: Madras Law Journal. or to use a modern phrase. p. One of such is mentioned in Yajnavalka. Partition may be effected either amicably or through intervention of the court. If two or more coparceners after partition agree to annul the partition and to live together jointly as before and make a junction of their property with affection. After a change in status by partition. (New Delhi: Bharat Law House. 7th edition. p. a member can no longer be deemed as agent or representative of the family. So far as there was any rudimentary conception of ownership in early times.ownership was corporate. where partition was done by fraud.349. it was found in the form of ownership of property being vested in the family itself. we have no means to estimate.). Hindu and Mohamedan Law. “once is the partition of inheritance made. (Delhi: Inter-India Publications.35. 13th edition. (ed. “The settled rule is that co-heirs should again divide on equal terms that wealth which being concealed by one co-heir from another is recovered after partition. 1995). 1 Corporate ownership denotes a peculiar kind of ownership where no living being is the sole owner but there are certain persons who are managers of the property. with the declaration W Markby. 1980). and once does a man say. p.2 However if there is any member of the Hindu Joint Family who is hopelessly dissatisfied with the management of the joint estate. Mayne’s Treatise on Hindu Law & Usage.753. This he can always do.” 4 A few of other such exceptions are of where by mistake stranger property was included while partitioning and the same was later lost. 1977). 4 A Kuppuswami. et. 3 Raghavachari. However there are certain well-recognised exception to this principle. 1 . as there is no compulsion upon the members of Hindu Family to live in common. these three are by good men done once and for all” 3. 34 2 p. etc . . 1924 ). (Calcutta: Eastern Law House. 5th edition. 407. 5 G Sarkar.al. p. et..5 However there are certain complicated questions relating to reunion like who may reunite. they are said to be reunited. In the next few pages the researcher has made an attempt to explore various circumstances under which a partition can be reopened and to answer various questions relating to reunion. A Treatise on Hindu Law. how to reunite..that mine is thine and thine is mine. Mode of Citation: A uniform mode of citation is followed throughout the project. (Place of Publication: Publishing Co. Vol. Year). During the course of research paper. Edition (if applicable). Style of Writing: This paper has largely descriptive style of writing. Page No. (if applicable). as per the permission of course teacher only Mitakshara School has been dealt with. Second chapter deals with various requirements for reunion. While writing the paper the biggest hurdle that the researcher had to face was of unavailability of views of scholars in the form of articles. Scope and Limitations: Scope of the present paper is to conceptualise the cases relating to reopening and reunion of partition. Title of the Book... Research Questions: I have attempted to answer the following questions in the present paper: What are the different circumstances under which a partition can be reopened? What are the requisites for reunion? Chapterisation: First chapter has dealt with the various instances where a partition can be reopened.RESEARCH METHODOLOGY Aims and objectives: Present paper attempts to sketch the various circumstances under which a partition can be reopened and under what circumstances reunion is possible. No. . Books in the present paper have been cited in this manner: Name of the author (or Editor). Sources of Data: Primary sources in the form of law reports and secondary sources in the form of books have been used to answer the various research questions. . here as regards immovable property rejected to reopen the partition even though the properties were not actually valued according to the market rate and that a notional valuation had been given in the partition deed. Supreme Court took this view due to its policy of not interfering with 6 AIR 1976 SC 1. was neither unjust nor unfair so as to entitle the minors to reopen the partition after a long period. As per trial court.REOPENING OF PARTITION MINOR COPARCENERS A minor after becoming of age can reopen the partition if he can prove that the partition was not for his benefit or it was unfair with regard to him. S1 (SMK) Def. . 5 S3—Plaintiffs—S4 S5 Def. so far as the partition of the moveable properties was concerned which was done by a separate document and was severable from the partition of the moveable properties. 1 S2 (SMR) Def. The Supreme Court. In this case two brothers made a partition and at that time plaintiffs were minors. S M Kuppuswami Chettiar 6. The High Court in the present case made a slight variation in the decree issued by the trial court by setting aside the directions of the trial court for the appointment of a Commissioner and by quantifying the value of the disparity in the share of the plaintiffs. by itself. Under the partition deed both immovable and movable property were divided with the help of family auditor of one brother. The same was confirmed by the High Court. This can best be explained with the help of the case of Ratnam Chettiar v.3 Plaintiffs here alleged that the partition was secured by practising fraud and undue influence and by suppressing large assets belonging to the family which were taken by their uncle (Def.1) by taking advantage of the weakness of the plaintiffs’ father who was a person of weak intellect. Here the plaintiff was a minor at Ibid. unless it is shown that consent is obtained by fraud. Where there is a partition of immovable and moveable properties but the two transactions are distinct and separable or have taken place at different times. para 19. 5) or even his acquiescence in allowing his elder brother to swallow the amount was not a prudent act and it had caused serious detriment to the interests of the minors which he had to protect. para10. A similar problem came up before the Supreme Court in the case of Sukhrani v..8 The Supreme Court laid the following propositions: 9 A partition effected among the members of HUF with consent cannot be reopened.concurring findings of two courts below. 7 8 10 AIR 1979 SC 1436.. Hari Shanker10. which consists of minors. because the minors at that time were members of the Hindu undivided family. 9 Ibid. 7 With regard to partition of moveable property the Hon’ble Supreme Court after making a detailed study also reached the same conclusion that it was an unequal partition and the silence of the father (Def. the same will be binding upon them. A strict proof of facts is required to reopen the partition because an act inter vivos cannot be lightly set aside. If the partition is done in good faith and in bona fide manner keeping into account the interests of the minors. . para 13. misrepresentation or undue influence. If the partition effected between the members of the Hindu undivided family. coercion. if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.. is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can be reopened irrespective of the length of time when the partition took place. Ibid. It was argued on behalf of defendant-appellant that the partition could not be reopened since there was no fraud or misrepresentation and since unequal shares had been voluntarily accepted. After the death of one of them (Pusau). 4 ps. S M Kuppuswami Chettiar12 held that even though there was no fraud or misrepresentation or undue influence. 11 12 Ibid. Later Babulal and Sunderlal were also shown as partners.. On these allegations the plaintiff filed the suit. Harishankar (Pusau) Rajaram Plaintiff Mannulal Babulal Son Sunderlal However in 1948 Mannulal represented to his brother that in order to avoid tax there should be nominal partition between them and upon this the joint family business was converted to a partnership. 8 ps. para 3 Supra n. And that of Rajaram was 5 Ans.the time of institution of suit for partition. the same was carried out by remaining two brothers. In the present case there were originally three brothers who carried out the bidi manufacturing business. it was binding on the parties. Here Mannulal’s share was 10 Ans.11 However the Supreme Court referring to the case of Ratnam Chettiar v. if the partition was unfair or prejudicial to the interest of minor. . 6. Even the houses belonging to the family were divided where Mannulal took 2/3 rd share and Rajaram took the rest. It was also pointed out that the plaintiff and his brothers were effectively represented by their father therefore partition cannot be opened merely on the ground of inequality of shares. a partition could be reopened at the instance of minor coparcener despite the fact that his branch was represented by his father at the partition. Here she was entitled to ¼th of 25 candies. An instance of this can be given through the case of A Venkappa Bhatta v.FRAUD A partition can be reopened in the case of fraud in division of property. was entirely dependant upon first defendant. It found that it was it was a lengthy and complex document. It found that plaintiff. which could not have been understood by plaintiff. . Among infirmities it pointed out some of these were like. Gangamma13. 13 AIR 1988 Ker 133. She here disputed the partition on which her signatures were taken persuading her to think that the partition deed was a document to avoid tax. but she was given only two candies. an old lady. The Hon’ble high court closely examined the partition deed. Reading the whole document together and taking in to account other circumstances the Hon’ble High Court said that the lady was very much under the influence of the first defendant and she had no sons or support to look to. Venkateshwara Bhatta (Sankanna)=W H = Def 15 (Plaintiff) D1 Def 1 Def 2 Karta D2 Here trial court found that in the partition deed less than ¼ th share was given to the widow and also there was no separate provision for ‘viniyoga’. On these grounds it confirmed to decision of the trial court. Hence it decreed the suit in favour of plaintiff. In the present case first defendant was the Karta of the family. 280 murahs of paddy and 5490 coconuts. On the death of her husband plaintiff claimed partition of 1/4 th share of the estate and the share of profits. It was also highly unjust and inequitable. partition deed didn’t say which of the parties are entitled to which of the properties. . Tai (Plaintiffs) Def. Valmik (then minor) was brought on record. Sakhram Dada Ganoba Parwatibai = Balaji Tomaji Tatyaji Sm. Under that compromise plaintiffs got some property on which they effected partition.MISTAKE In the case of Balaji Ganoba v. In that suit a compromise decree was passed. Later on Valmik filed another suit and claimed all the property left by Gangabai and got the decree in his favour. Here the sharer would be entitled to compensation out of the shares of other parties and the partition if necessary may be reopened for readjustment of shares. Then plaintiffs and defendants who are brothers instituted a suit against Parwatibai and her daughter for possession of property as next reversionary. Plaintiffs therefore brought a suit for repartition. On the death of Sm. 14 AIR 1952 Nag 2. his mother had entered into possession of properties and remained until her death. Annapurnabai14 it was held that partition could be reopened if a property which doesn’t belong to the joint family is wrongly included and it subsequently passes out of the possession of sharer. Tai. In the present case the branch of Ganoba was separate from that of Dada. On her death Parwatibai took possession of all property. As a consequence of it plaintiffs lost most of the property allotted on partition. Harba = Ganagbai Vithal Valmik On the death of Vithal. . para 4. In this case plaintiff sought to reopen a previous partition.) (Def. 18 AIR 1960 Cal 281. If the original decision has been arrived at by a common mistake. that where parties arrive at a partition either by agreement or by a decree. 16 40 All 374 cited from.Defendant here relied upon the rule that partition once done can’t be reopened except on the ground of fraud or mistake in including a property which didn’t belong to the joint family.14.) Plaintiff Debendra- Dwarkanath Ghose died in 1892 after having published a will. there is an implied and mutual right of indemnity or contribution in respect of any paramount claim by a third parties which throws a burden of loss not contemplated in the partition proceedingsunfairly upon one of the parties. Para 5. in the case of decree is adopted by the Court in making the decree the mistake can be set right pro tanto. By his will he created an absolute debutter in respect of two of his properties and bequeath the rest to his two sons Rajendra and 15 Ibid. Dwarkanath (Rajendra) Jogendra (Sidheshwar)=Padma Bhupendra Jnanendra (Nagendra)= Labangalata (Def. of course. he is entitled to compensation out of the shares of the other parties. To appreciate the facts of the case it is first necessary to have a look at the following genealogical tree. Babu Lal16 which is “the right is based simply upon this principle. 15 Here the Court quoted the opinion expressed by Walsh J in Ganeshi Lal v. 17 Ibid. n. Jnanendra18. But in the view of the Hon’ble High Court if a property has been wrongly included and it subsequently passes out of the possession of a sharer. which. Supra.”17 Another case in this regard is that of Debabrata Ghose v. Later the plaintiff successfully instituted a suit to establish the title of deity in the premises allotted to Nagendra and Jogendra which were created debutter by Dwarkanath but were secularised by the consent decree. 19 The Hon’ble High Court here held that the subject matter of earlier partition by mistake included those properties also. By the consent decree the parties had the entire estate of Dwarkanath including the two premises which Dwarkanath had created debutter in respect of. The present suit was filed by the plaintiff for partition of only such of the properties belonging to the parties as are still within the family. Bhupendra. He had also published a will by which he appointed his brother Jogendra as the executor and bequeathed his properties to his four sons in equal shares subject to the payment of an excess amount to his youngest son Nagendra. In this partition Nagendra got the property in respect of which the debutter was created. openly and adversely to each other. Jnanendra. all the properties belonging to the estate of Dwarkanath were divided into two parts. the property allotted to Bhupendra had been sold in execution of a decree passed against him.Jogendra in equal share. However Jnanendra impleaded that ever since the award partition. By this decree. was of where in the partition al the joint family property were allotted to 19 Ibid. which couldn’t have been the subject matter of the partition. Bhupendra and Nogendra entered into possession of the properties allotted to each and ever since have been in possession of the properties so allotted as their own exclusively. The position therefore. One part which included one of the debutter premises was allotted to Jogendra and the other part which included the other debutter premise was allotted to the three sons of Rajendra jointly. Thereafter. para 3. Later. in the words of P C Mallick J. The three sons of Rajendra subsequently partitioned among themselves the joint property. Jnanendra and Nagendra the three sons of Rajendra then alive instituted a suit in this Court against Jogendra and others for construction of the wills of and for partition.. Rajendra predeceased his father. . This suit ended in a consent decree. the property was sold. 502. Cited from. 23 S A Desai (ed. 17th edition. 22 . “ the partition which included outside property is not invalid or a nullity but is merely an inequitable partition and the court of Equity has to intervene not because there was no partition effected which is valid in law but because the partition was inequitable and imposed hardship on one of the parties which should be corrected if possible. p. Mulla. On the face of these facts it cannot be held that Nagendra and/or his heir has suffered loss by reason of the displacement of title by the deity in respect of the property allotted to Nagendra. In enforcement of this mortgage.). In the instant case six years after partition and allotment. Father retained a few items for his maintenance without having power of alienation. para 7. para 8. 22 AFTER BORN SON In the case where a son is begotten as well as born after partition is entitled to reopen the partition where the father has not reserved a share to himself on a partition with his sons. By the partition one share was allotted to senior wife with her son and two shares were allotted to junior wife with her two sons. After his death the property in his hands were to be divided equally among three sons. court did not order for reopening of the partition. p. 20 He said.Jnanendra and Bhupendra to the total exclusion of Nagendra.. the suit was instituted by the deity claiming the superior title which was upheld by the Court. 23 On the contrary where father has reserved a share to himself. (Butterworths India: new Delhi. 503. para 13. Here ‘family’ had reference to the two branches represented by the two wives. a son who is begotten as well as born after the partition is not entitled to claim to reopen the partition.Principles of Hindu Law. Long after this.. Supra n. In this case a Hindu with two wives had one son by his senior wife and two sons by his junior wife. Ramaswami Goundar25. Contemplating the situation of an after-born son the partition deed contained a clause saying. Ibid. Nagendra had executed a mortgage of premises allotted. “male children who might hereafter born out of your loins (the two wives) should be provided for out of the shares allotted to the respective families”.” 21 However on the facts of the case.. All the sons at the time of partition were minors. 24 Ibid.24 This can be enunciated with the help of case of Athilinga Goundar v. 25 (1944) II MLJ 146.18. 2000). 20 21 Ibid. Ibid.A son who was born to the wife nearly a year after the partition claimed reopening of the partition. Gopalrao26 where the father had reserved a share himself at the partition. It therefore allowed the reopening of the partition. He gave 1/3rd share to his eldest son and retained 2/3 rd in his own possession for the benefits of his two other minor sons. The contention of after born son was that he was entitled to reopen the partition as no share had been set apart for the father at the partition.27 ADOPTION A person validly adopted to a deceased coparcenor by his widow after the partition may also reopen a partition. The sons of junior wife resisted the claim by saying that a share had already been allotted to the father and the after born son was entitled to that share only. 26 27 Supra n. 24. The learned judge held that plaintiff was not entitled to have a fresh partition as though the eldest son received one-third share instead of one-fourth to which alone he is entitled.. In this case one Shrinivas had two sons. Ramchandra and Krishnaji. See. This may be explained with the help of the case of Ramchandra Shrinivas v. Krishnaji died in 1930. The court here distinguished the present case from the case of Ganpat v. Later on he had another son born to him and that son instituted a suit for fresh partition ignoring the earlier one. . If no share is reserved for him at the time of partition. Son begotten at the time of partition but born after partition is entitled to a share as if he was in existence at the time of partition. 148. Here the effect of partition was to separate the eldest son from the family. Shrinivas and Ramchandra effected a partition between (1899) ILR 23 Bom 636. p. In this case one Venkatrav who had three sons effected partition. 28 MANU/MH/0125/1952. he is entitled to have the partition reopened and share allotted to him. It was held that a son-born after partition has no claim on the wealth of the separated brother and that he has preferential claim over the wealth of his parents only. Ramkrishna Krishnarao28. It held that the provision for giving a share to the after-born son by his uterine brother out of the property allotted to him couldn’t qualify the right of the after-born son to re-open the partition and claim a share in the entire property. On this day itself Sundrabai adopted Ramkrishna. para 10. . In this case a person Anant. The defendants claimed that the adopted son was not entitled to claim any share in the proerty because the coparcenary between Shrinivas and Ramchandra had been terminated by a prior partition between them. Therefore it said that on the death of Keshav in 1917. 29 46 Bom. R. Keshav had died in 1917 and the property vesting in him during his lifetime had in fact devolved by succession on Shankar. which Shankar had obtained by succession on Keshav’a death.themselves on 9-12-1932. According to the plaintiff the family of the parties continued to be joint on the date of his suit and he wanted his half share in the properties on that footing. He argued that the partition effected by Shrinivas and Ramchandra between themselves was intendedsolely to defeat his claims as an adopted son and that in fact the said partition had taken place not on 9th December but after his adoption on 16-12 1932. 1 cited from. The Court here before giving any decision firstly referred to a case of Anant Bhikappa v. and a will in favour of Ramchandra’s daughter Renukabai. Anant by his adoption claimed to be the adoptive brother of Keshav and thereby demanded that the properties. who purported to enter the coparcenary of which Keshav was the last survivor. This was followed by a registered deed of partition executed on 16-12-1932. was adopted in 1930. Ibid. L. should be returned to him. Shankar Ramchandra29. though seemingly coparcenory had been terminated however it was revived by the adoption and the adopted son entered this coparcenary by reason of his adoption.. This claim made by the plaintiff was decreed by their Lordships of the Privy Council on the reasoning that by the death of the sole surviving coparcener the termination of coparcenary is not effective or complete so long as there is any potential mother in the joint family. Shrinivas died. in 1934 and then the adopted son brought the present suit in which he claimed to recover his half share in the properties of the family. Shrinivas then alienated the properties which had fallen to his share by executing two deeds of gift in favour of Ramchandra’s sons Annaji and Dattatraya. Gajendragadkar. 31 Under Hindu law a person suffering from a disability that disentitles him to inherit cannot claim a share on partition but is entitled to maintenance.333. On this basis the plaintiff was held to be entitled to claim one-half share in the properties in suit. J in the present case equated the position of an adopted son to that of a son who was in his mother’s womb at the time of the partition. p. In either case the adopted son is entitled to enter his adoptive family on the basis that the family is a joint and undivided Hindu family and his rights in the property of the family must be decided on that basis. On the basis of above-mentioned reasoning it was held that the coparcenary which had been determined by the partition between Shrinivas and Ramchandra was revived by the adoption of the plaintiff and that the plaintiff’s claim should be treated as a claim for reopening a partition which had been made without recognising his share in the family properties. however his share can’t be ignored because of the mere fact that he was unable to claim for himself at the time of partition.3. n. However if the defect is removed by medicaments at a period subsequent to partition. para 10.Keeping this in mind the Hon’ble court held that “the rights of an adopted son are not affected by reason of the fact that the joint status of the family which he seeks to enter by his adoption has been terminated either by a prior partition between the surviving coparceners or by the death of the sole surviving coparcener. . 31 Supra.28. n. ABSENT AND DISQUALIFIED COPARCENRERS Though partition cannot be delayed by the absence of coparcener. If at the time of partition no share is allotted to him or an unequal.”30 The court here importantly said that the case of adopted son must be included in the list of the exception to the rule that partition can be made only once. unfair share is allotted to him. the right of 30 Supra. on his return he is entitled to reopen the whole partition. but who is born thereafter. It was also held that such an agreement need not be express. Pt. Lachman Prasad Kashi Jawala Prasad Ram Mst Batashi Raghubar Dayal = Reoti Devi Dayal Ram Lal Def. It was held that it is implicit in the concept of reunion that there shall be an agreement between the parties to reunite in estate with intention to revert to their former status of members of a joint Hindu family.333-334. 33 AIR 1962 SC 287. 32 Ibid.participation takes effect by analogy to the case of a son born after separation. pp. Reoti Devi33 that to constitute a reunion there must be an intention of the parties to reunite in estate and interest. his sons and descendants constituted a joint family. In the present case plaintiff argued that Lachman Prasad... Banwari Lal Bhagwan Plaintiff .32 REUNION NATURE OF EVIDENCE It was held in the case of Bhagwan Dayal v. but must be clearly implied from the conduct of the parties. The next question was whether there was a reunion between Kashi Ram. Banwari Lal. it has been approximately 50 years and the consistent conduct of the parties during that period establishes that there has been a reunion between them. along with the properties acquired during the lifetime of Raghubar passed on by survivorship exclusively to the plaintiff. Plaintiff had also put forth an alternative argument on the even on the assumption that there was a partition in the family of Lachhman Prasad. held that conduct of the parties must show an intention to revert back to the status of joint family. Subbarao J. Plaintiff here asserted that there was never a partition in the family and that that there was never a partition in the family. Raghubar Dayal and Bhagwan Dayal. in 1914. Here in none of the document there is mention of the property being joint. He said that after the death of Kashi Ram. Kashi Ram. All these facts were held to be decisive . Plaintiff here argued that since the start of the business in Agra. Here it was also found that Ram Lal and Banwari Lal lived separate from plaintiff. Court also observed that none of the documents executed during the lifetime of Kashi Ram denote the properties as to be joint. in 1914. which said that there is no co-sharer or copartner in the property. in 1924. and that Kashi Ram. Rahubir Dayal and Bhagwan Dayal. here. jointly started a business at Agra. the business and the properties acquired during his life time devolved upon the plaintiff and Raghubar by survivorship. Court here on a detailed examination of fact found that Kashi Ram had left the ancestral home long ago and joined military and started business in Agra with is own savings after quitting the job. He also held that in such a case burden is heavy on the parties seeking to establish that there was reunion. This is contested by widow of Raghubir. a reunion should be inferred from the conduct of the said three members during the lifetime of Kashi Ram and thereafter. Taking into consideration all the facts court held that the family of Lachman Prasad was divided. and that after the death of Raghubar the said properties. in 1933. Therefore ambiguous pieces of evidence can’t sustain plea of reunion. On the facts of the case the court held that the plaintiff failed to establish reunion. During the course of business they jointly acquired some properties. On the contrary there existed documents.In the present case Jwala Prasad died in 1908. and Raghubar Dayal. Ram Lal. One of the sons was Parshuram who is plaintiff in the present case. The decree declared the shares of the defendants and it enabled each of the defendants to get his share separated on payment of necessary stamp duty. was a separation of plaintiff from defendants 35 or there was separation of all the members of the joint family from each other. Therefore members of different branches of joint family cannot form a subordinate joint family. n. Hirabai34. Also that the income of family lands was used for all defendants.1 was used for all the defendants and he was the manager of the family. It is a corporate body or a family unit. Here defendants were Rajaram. Defendants also argued that notwithstanding the decree for partition. one would require strong evidence to show that what was brought about by the decree was displaced by some specific agreement between the members of family. Now plaintiff again went to court seeking to amend his decree so as to increase his share from 1/8th to 1/7th. For this examined the decree.36 34 35 36 AIR 1957 Bom 59. It also contained the provisions for the marriage of daughters of one of the defendants. possession of his 1/8th share. This was tried to be proved by the will document of Hirabai where it was written that income of defendant No.of the fact that Kashi Ram was not a member of joint family. One of the questions that court here had to deal with was whether the separation effected by decree in the earlier suit. The Hon’ble Court then held that in the case where partition was brought about by the decree. the defendants agreed to remain united. Another case on this issue is that of Parshuram v. However during the pendency of the appeal Rajaram had died. 34. Before the present suit the plaintiff has filed another suit to recover by partition. This was taken to appeal. This appeal was later withdrawn. Lower court in that case had granted a decree in favour of the plaintiff. which brought about severance in the joint status. para 9. Supra. In the present case a Hindu family consisted of one Rajaram and Hirabai and their six sons. Court here also held that coparcenary is a creature of Hindu law and the same cannot be created by agreement of parties except in the case of reunion. Hirabai and their rest of the five sons. . Banwari Lal 37 that when one member of a joint family separates there is no presumption that remaining members remained united. However Court decided in favour of defendants on the basis of other technical issues. Another case on this point is that of Biyyala Chinna Narasamma v. Biyyala Venkata Narasi Reddy38. pleading that he and his brother Hanumantha constituted a joint family at the time of Hanumantha’s death. Hanumantha. Court here held that there is no presumption. This was shown as to further the argument that the deceased and plaintiff were joint at the time of death of Hanumantha’s death. and Swami Reddy. . plaintiff continued to live with his brother (the deceased) in the family house where he died. Hanumantha Reddy had entered into partnership with third parties for trade. the plaintiff had only the right of maintenance. In 1905 Rup Chand had died and in the 1914 his widow raised the present suit against the remaining brothers claiming the 1/3rd of the partnership assets. who lived as a Hindu joint family. Upon this the court emphatically stated 37 38 (1923) LR 50 IA 192. that the remainings remain united. During the course of the arguments it was found that plaintiff’s brother Swami Reddy had separated from them many a years ago through a reference to the arbitrators. Defendants put forth the defence that though Ishar Das had separated in 1876. Venkatarasa (plaintiff). Here even after Swami Reddy’s separation. After his death Venkatarasa filed suits for dissolution of partnerships. In 1876 Ishar Das got separated. In the present case there were four brothers Ishar Das. Harbhagwan. In this case there were three brothers namely. AIR 1954 Mad 282. Thereafter business was carried out by the three remaining brothers. Rup Chand and Daya Ram. other brothers remained joint and that in consequence of the death of Rup Chand.PARTITION AND PRESUMPTION THEREOF It was held in the case of Jatti v. Therefore the question before the court to be decided was whether plaintiff and Hanumantha constituted joint family up to the time of latter’s death even after the partition. when onecoparcener separates from others. AIR 1965 Mad 409. Here two-fold argument was taken by the plaintiffs. After the death of Ladhuram. Court also observed that agreement to reunion couldn’t have been made by or on behalf of the minor-plaintiff. WHO MAY REUNITE In the case of Balbux Ladhuram v. Girdharilal called for son and widow of Ladhuram. Narayana Reddiar40 it was held that reunion is product of agreement and 39 40 (1903) LR 30 IA 130. Alternatively it was argued that there was a reunion between the plaintiff’s mother and plaintiff and Girdharilal years before the latter’s death. Here court also considered whether living together even after partition amounts to reunion or not. In the present case there were three brothers namely Girdhari Lal. Kunyaram and Ladhuram. Now Balbux after attaining the age of majority claimed the entire property on the account of being the only survivor. Similarly in the case of Balasubramania Reddy v. Firstly there was no partition between Ladhuram and Girdharilal. it is reasonable to expect that the intention to reunite will also be expressed through document. Rukhmabai39 it was held that a reunion could take place only between the parties who were parties to the original partition. At about the time of partition Ladhuram had sent his wife and son to the other place and he himself went to live with them after sometime without drawing any share from the ancestral shop.that there is nothing inconsistent between division in status and a continuation of living together in the family house. Now the ancestral shop was run by Girdharilal. At about 1869 Kunyaram separated from the family by taking his share. Upon this the court held that a reunion could take place only between the persons who were parties to the original partition. After Girdharilal’s death the business was run by the widows of Girdharilal and Ladhuram. Now the ancestral shop was run by Girdharilal. In the view of the court in a case where intention to separate has been expressed through a document as it was in the present case. . However the court in the present case refused to decide finally on the issue of plaintiff being joint with the deceased and disposed off the matter on other grounds. Radhabai42 it was held that it is only males in a Hindu family once separated that can unite and only within limited range.41 However it must be remembered that as it is open to father or mother as his guardian to effect a separation on behalf of the minor coparcener. In this case there was a man namely. On the other hand Kisan had disposed off properties before his death in addition to what was his own share. Mt. p. brother or paternal uncle but not with any other relation. Sons took their one-fifth share and enjoyed it separately. Mangalan43 where reunion was never argued the court observed that it is the elementary principle of Hindu Law of Mitakshara School that a member once separated can unite only with his father. Alternatively it was argued that there had been a reunion between Kisan and his wives.4. Defendants on the other hand denied any partition. nevertheless it was two sons who got separated from the family and the others remained joint. 41 42 43 Supra. n. Here partition took place in the family at instance of sons.minor is incompetent to contract therefore an agreement can’t agree to reunite. Plaintiffs contended that he had no authority to do so as they were only tenant in common. They also pleaded that assuming partition has been set out. AIR 1940 Nag 241. . it would be equally open to the father or mother as his guardian to agree to a reunion on behalf of the minor. However the court here observed that the partition was not only effected between the sons but also between the mothers. Upon this the court held that it is only males in a Hindu family once separated that can unite and only within limited range. AIR 1928 Lah 122. On this basis of reasoning the court decided the case. Kisan shinde who had two wives and through each wife he had a son. In the case of Nanuram v.756. A wife and husband once separated can not reunite. Interestingly in the case of Hira Singh v. In the present case Parmanad L Bajaj was kartha of HUF prior to 1956 which consisted of Himself. which they had got on partition and which were still in their possession. That cannot take place with any person indifferently. However in 1971 father and three sons entered into reunion agreement that contained a controversial clause. brother or paternal uncle is termed reunited. ‘He who being once separated dwells again through affection with his father.20. Now as per Tribunal there was no reunion. a brother or a paternal uncle. Commissioner of Income Tax46 was that whether a clause in reunion agreement that parties need not put all the properties acquired on earlier partition with the property of reunited family invalidates reunion. The High Court here before reaching to any conclusion read the 44 45 46 (1934) LR 62 IA 16. which read as follows: “(3) The properties got by the parties to this agreement on partition prior to this reunion shall continue to be their respective separate properties unless thrown into common hotchpot of the HUF which has come into existence by virtue of this agreement. 135 ITR 673 (1982).. The court answered the question in negative. Pan Kuer44 the question before the court was whether Ram Kishore and Ram Narain who were distant cousins could reunite. as the three sons had not brought the properties.In the case of Ram Narain Chaudhary v. as Brihspati declares. He to whom such appertain is reunited parcener.” Within the three days of the agreement the father threw properties of smaller HUF into the larger HUF. During the period of 1956 to 1963 all the sons got separated by making declarations before Magistrate. In the present case the court recited the paras 2 and 3 of chapter 2. p. 3.’ ”45 CONSTRUCTION OF REUNION AGREEMENT An interesting question came before the Karnataka High Court with regard to reunion in the case of Parmanand L Bajaj v. . effects which have been divided and which are again mixed together are termed reunited. his wife. Ibid. three sons and two daughters. but only with a father. section 9 in Mitakshara which read as follows “2. (5) Act of Parmanada Bajaj (father) by putting his property in the common pool is evidence of subsequent conduct of at least one of the coparceners. as according to the clause every reuniting member can put his property into the joint family properties.687. With regard to clause (3) the court observed that it is not destructive of reunion. (6) There is no condition that the property thrown into hotchpot after the date reunion shall not be available for common enjoyment. (3) Reunion between father and three sons is permissible under Hindu law. p. Therefore the court held that by reunion was established in the present case but clause (3) being repugnant to reunion is invalid not vice-versa.. (2) There was a partition between them. 47 Ibid. .reunion agreement document and other circumstances as a whole and observed the following47: (1) Father and the three sons formed an HUF earlier. (4) The fact of reunion is evidenced by a written document. It is implicit in the concept of reunion that there shall be an agreement between the parties to reunite in estate with intention to revert to their former status of members of a joint Hindu family. . partition can be reopened. a son who begotten and born after the partition is not entitled to reopen the partition. Where the father has reserved a share to himself. A son begotten and born after partition can reopen the partition where the father has not reserved a share to himself on a partition with his sons. A partition can be reopened at the instance of minor if the partition was unfair or prejudicial to the interest of minor even where there was no fraud or misrepresentation or undue influence and despite the fact that his branch was represented by his father at the partition.CONCLUSION Conclusions of the study may thus be summarised as below: Reopening of Partition: If a partition is unfair and detrimental to the interests of minors the same can later be reopened. A partition can be reopened in the case of fraud in division of property. Partition can be reopened by the absentee coparcener on return for whom the share was not reserved. Where at the time of partition stranger property was included by mistake and the same is later displaced by the claim of better-title holder. A person validly adopted to a deceased coparcener by his widow after the partition may also reopen a partition. Partition can also be reopened by the disqualified coparcener whose disqualification has been removed. Reunion: To constitute a reunion there must be an intention of the parties to reunite in estate and interest. Members of different branches of joint family cannot form a subordinate joint family. one needs strong evidence to show that members of the family reunited. brother or paternal uncle but not with any other relation. Under Mitakshara law a member once separated can unite only with his father. Where intention to separate has been expressed through a document. When one member of a joint family separates there is no presumption that remaining members remained united. intention to reunite should also be expressed through a document. An agreement of reunion cannot be made by or on behalf of minor. . Reunion can take place only between the parties who are party to the original partition. A reunion agreement must be read together with other facts as a whole to establish reunion. Where partition is effected by decree. An agreement to remain united or to reunite must be proved like any other fact. Only males in a Hindu family once separated can unite. S A Desai (ed. G Sarkar. et. (ed.al. (Calcutta: Eastern Law House. 1980). 7th edition. (Butterworths India: new Delhi. W Markby. 17th edition. et. Mulla. 13th edition.). A Treatise on Hindu Law. 2000). Raghavachari. 5th edition.. 1977). Mayne’s Treatise on Hindu Law & Usage. (Delhi: Inter-India Publications.Principles of Hindu Law. Hindu and Mohamedan Law. (New Delhi: Bharat Law House.BIBLIOGRAPHY BOOKS A Kuppuswami. . 1924 ). Hindu Law: Principles and Precedents (Madras: Madras Law Journal..).al. 1995).