N.G. Chandavarkar, J.
1. The facts found by the lower appellate Court are shortly these: Upendra, Waman, Rampal (defendants Nos. 3, 4 and 5 respectively), Hari, Keshav and Shri nivas were members of a joint Hindu family. The first three of them separated from the rest under a deed of partition in 1888 (Exhibit 44), the last three continuing joint as before.
2. On these facts the lower Court has found that the last three persons either continued as before to be coparceners or that they '(if the legal fiction is to be employed) must be held as having immediately reunited with each other after executing Exhibit 44.'
3. The legal correctness of the latter view as to reunion is challenged by the learned pleader for the appellant on the authority of the Privy Council judgment in Balabux Ladhuram v. Rukhmabai (1903) L.R. 80 IndAp 180. There it was held 'that there is no presumption, when one co-parcener separates from the others that the latter remained united,' but that the agreement to remain united or to reunite 'must be proved like any other fact.' It is contended that in the present case there is no finding by the appellate Court as to an agreement to reunite and that there is no evidence of such agreement. The answer to that contention is simple. The evidence is that the coparceners agreed to effect not a complete but partial disruption of the co-parcenery, that, in other words, three of them separated from the rest and also inter se and that the latter agreed to continue joint. The Courts below have found accordingly. The finding satisfies the law enunciated by the Judicial Committee of the Privy Council in the case cited.
4. According to Hindu Law, he who alleges partition must prove it, because 'once is a partition made.' If it is proved that there has been a breach in the state of union, the law presumes that there has been a complete partition both as to parties and property. The presumption in question continues until it is rebutted by proof of an agreement, which means, proof of intention on the part of some to remain united as before and to confine the partition to the rest, or if the partition was intended to extend to the interest of all individually, there must be proof that some of them reunited. In the present case the former was alleged and has been found established by the evidence.
5. The decree must, therefore, be confirmed with costs.