Rama Jois, J.
1. An important question of Hindu law on the topic of reunion' of the divided coparceners of an erstwhile Hindu undivided family (hereinafter referred to as 'HUF'), namely, whether the failure on the part of some of the reuniting members to bring back the properties which they had got at the time of the partition, and which were still in their possession on the date of reunion, renders the reunion invalid, i.e., no reunion in the eye of law, arises for consideration in these references in which the income-tax Appellate Tribunal Bangalore Bench, has referred for the opinion of this court under s. 256(1) of the I.T. Act, 1961 (hereinafter referred to as 'the Act'), the following question :
'On the facts and in the circumstances of the case, whether the Tribunal was justified in law in holding that there was no reunion ?'
2. The facts of the case are as follows : The assessment years to which these references relate are 1971-72 and 1972-73. The assessee is an HUF consisting of one Paramanand L. Bajaj and his wife and their daughter. Prior to August, 1956, there existed a larger HUF consisting of Paramanand L. Bajaj, his wife, their three sons and two daughters. The business of the family was that of money-lending. The three sons of Paramanand L. Bajaj are Devendra P. Bajaj, Vijayakumar P. Bajaj and Nandlal P. Bajaj. The assessment under the Act, was being made on the HUF represented by its karta, Paramanand L. Bajaj. On August 20, 1956, Devendra P. Bajaj got separated from the family and he made a declaration to that effect on August 23, 1956, before the Magistrate. Vijayakumar P. Bajaj got separated from the family on December 22, 1961. Nandlal P. Bajaj got separated from the family on June 30, 1963. He also made a declaration to that effect before the Magistrate on July 9, 1964. After these separations, i.e., from 1964-65 onwards, assessments were being made on the smaller HUF consisting of Paramanand L. Bajaj. his wife and an unmarried daughter. During the assessment year 1971-72, Paramanand L. Bajaj showed the income of the smaller HUF only up to March 29, 1971, on the ground that there was a reunion of the family on March 27, 1971, and that the properties which were in the hand of Paramanand L. Bajaj, representing the smaller HUF, were thrown into the hotchpot of the reunited joint family by means of a declaration made by Paramanand L. Bajaj to that effect on March 30, 1971. Paramanand L. Bajaj claimed for the making of a separate assessment in the hands of the bigger HUF which, according to him, came into existence on reunion, on and from March 30, 1971. The ITO by his order dated June 19, 1973, rejected the claim of reunion. Aggrieved by the said order, the assessee (the smaller HUF) represented by Paramanand L. Bajaj preferred an appeal before the AAC. The appellate authority dismissed the appeal following the judgment of the Appellate Tribunal in the case of M. Kasturiranga Shetty (I.T.A. Nos. 787 to 789 (Bang.) 73-74 dated November 15, 1975). Against the order of the AAC, the assessee preferred two appeals before the Appellate Tribunal. They were disposed of by a common order dated 12th January, 1977 (Annex.'C'), following its earlier judgment in the case of Kasturiranga Shetty. Thereafter, at the instance of the assessee, the question set out earlier has been referred for the opinion of this court.
3. As far as the successive separations of the three sons from the family, namely, Devendra P. Bajaj, Vijayakumar P. Bajaj and Nandlal P. Bajaj, on August 26, December 22, 1961, and June 13, 1963, respectively, there is no dispute. It is also not disputed that the reunion is evidenced by an agreement signed by Paramanand L. Bajaj and his three sons on March 27, 1971. It formed part of the assessment record. A copy of the same is also produced before us at the time of hearing. It reads :
'THIS AGREEMENT OF REUNION entered into at Madras this 27th day of March 1971, between (1) Shri Paramanand Lunidasing Bajaj of the First Part, (2) Shri Devendra Paramanand Bajaj of the Second Part, (3) Shri Vijayakumar Paramanand Bajaj of the Third Part, and (4) Shri Nandlal Paramanand Bajaj of the Fourth Part.
WHEREAS the parties hereto were members of a Hindu undivided family whose karta was the said Paramanand Lunidasing Bajaj the party of the First Part hereto; and WHEREAS the parties of the Second, Third and Fourth Parts hereto separated from the Hindu undivided family on 20th August, 1956, 22nd November, 1961, and 13th June, 1963, respectively; and
WHEREAS the parties hereto being desirous of reuniting to form a Hindu undivided family.
Now this agreement witnesseth as under :
(1) The parties hereto do hereby affirm that they have reunited on 27th day of March, 1971, to form a Hindu undivided family.
(2) Any party to this agreement can thrown either his self acquired property or any property got by him on partition of the Hindu undivided family before this reunion into the said Hindu undivided family.
(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 the common hotchpot of the Hindu undivided family which has come into existence by virtue of this agreement.
In witness whereof the parties hereto have hereunto set and subscribed their respective hands and seal the day, year, first hereinabove written......'
4. All the four reunited members have affixed their signature to the above agreement. There is also no dispute that within three days thereafter on 30th March, 1971, Paramanand L. Bajaj threw the properties of the smaller HUF into the hotchpot of the reunited HUF. This is also evidenced by a declaration date March 30, 1971, which also formed part the assessment records and a copy of the same was also produced before us. Relevant portion of the said declaration excluding the schedule in which the properties thrown into the family hotchpot have been described reads as follows :
'I, Paramanand Lunidasing Bajaj, aged about 57 years, and residing at V Main Road, Gandhinagar, Bangalore-9, and now at Madras, do hereby solemnly affirm as under : 1. I am the karta of the Hindu undivided family consisting of myself, my wife and my 3 sons, viz., Devendra Paramanand Bajaj, Vijayakumar Paramanand Bajaj and Nandlal Paramanand Bajaj, the Hindu undivided family having come into existence by virtue of agreement of reunion entered into on the 27th day of March, 1971.
2. The property mentioned in the schedule hereunder was my separate property belonging to the Hindu undivided family consisting of may self and my wife.
3. I have on this 30th day of March, 1971, thrown the property mentioned on the schedule hereunder into the common hotchpot of the Hindu undivided family consisting of myself, my wife and my three sons referred to supra.
4. I do hereby declare that the property mentioned in the schedule shall hereafter be the property of the Hindu undivided family which has come into existences as per agreement of reunion dated 27th day of March, 1971, consisting of myself, my wife and my three sons, of which I am the karta.'
5. There is also no dispute that the three sons of Paramanand L. Bajaj have not made any declaration throwing the properties which they had got on partition and which were still in their possession on the date of agreement of the 'reunion', into the family hotchpot.
6. On the basis of the above undisputed facts, the view taken by the Tribunal was that though the agreement dated March 27, 1971, signed by Paramanand L. Bajaj and his three sons speaks of the 'reunion' of the erstwhile coparceners to form a 'Hindu undivided family'. in fact and in law, there was no reunion as the three sons had not brought the properties, which they had got on partition and which were still in their possession, back to the family hotchpot.
7. Sri K. Srinivasan, learned caused appearing for the assessee, urged the following contention :
(1) When a clear and unequivocal declaration of the reunion was evidenced by the agreement signed by Paramanand L. Bajaj and his three sons, who did constitute an HUF before partition, the I.T. authorities and the Tribunal could not have held that there was no reunion just because some of the reunited coparceners had not thrown their properties, got on partition, into the family hotchpot, in view of the reservation to that effect contained in para 3 of the agreement as that was not a precondition for a reunion under the Hindu law.
(2) Even on the basis that the concept of reunion under the Hindu law includes the bringing of the properties secured on partition by the erstwhile coparceners into the reconstituted HUF, the properties which they had got on partition must be deemed to have become the properties of the reconstituted HUF notwithstanding the clause to the contrary in the agreement of reunion as the declaration of reunion was full and complete and was also followed by the throwing of the properties at the hands of Paramanand L. Bajaj into the hotchpot of the reunited HUF. In other words, his contention was that clause 3 of the agreement which records the reunion which gave option to the reunited coparceners either to bring their share of property, which they had got on partition from the undivided family, into the reunited family or not may be invalid, in view of the unequivocal declaration of reunion by the parties and not vice versa.
8. Sri. S. R. Rajashekhara Murthy, learned counsel appearing for the revenue, strenuously contended that there was no reunion in law brought into existence as the three sons of Paramanand L. Bajaj had not brought back the properties, which they had got on partition, into the reunited family hotchpot. He argued that the view taken by the Tribunal that there was in fact no reunion was correct as, according to him, the condition precedent for reunion waist the bringing back of the properties which the coparceners had got on partition and which were still in their possession. In other words, he contended that para. 3 of the agreement dated March 27, 1971, which shows that parties to the so-called reunion had the option to keep the properties which they had got on partition as their own properties, was itself destructive of the claim of reunion.
9. In view of the rival contentions urged for the assessee and the revenue, the first, aspect for consideration is about the concept of a reunion under the Hindu Law, the conditions which should be satisfied to bring into existence, and the legal consequences of, a reunion.
10. The basic proposition of Hindu law on reunion is laid down in Brihaspati Smriti (Gaekwad's Oriental Series, Vol. LXXXV, pp. 214-215), also vide Smritichandrika III Vyavaharakanda, Part II  published by the Govt. of His Highness the Maharaja of Mysore, pp. 702-703, English version J. R. Gharpur  Part III, pp. 667-670).
11. Vibhakto ya : puna : pitra bhraatrachaikatra samsthita :; Pitruvyeaathavaa; preetyaa sa tatsamsrshta : uchyate.
12. He who being once separated dwells again through affection with his father, brother or paternal uncle is termed reunited.
13. Samrshtau yau puna : preety tau parasparabhaginau.
14. When two coparceners have again become reunited through affection, they shall mutually participate in each other; s properties.
15. The view expressed by Devanna Bhatt, the author of Smritichandrika on the text of Brihaspati is :
Sahavaase purushaanaamaahatya dhanadvaarenadhanadvaarena samsargo vaachya iti; tannimittabhootavacchedakaapanodena vibhaktaadeenaam dhanadeenaam poorvavadekaraaseekaranaparyantassamsargo na puna : sahavasamaatramiti mantavyam.
16. Association not necessarily being by co-residence, the association is expressed to be through wealth; so by way of removing the distinguishing factor of that it should be understood that the reassociation of the separated members shall be to the extent of pooling together (all) the wealth etc., as before and not merely by a co-residence only.
17. Mitakshra on Yaj. II 138-139, which lay down special rule of inheritance at a partition among reunited members explains the effect of reunion as follows :
Vibhaktam dhanam punarmisreekrtam samsrshtam todasyaateeti samsrshtee.
18. Effects which had been divided and which are again mixed together, are termed re-united. He, to whom such appertain, is a re-united parcener.
19. The aforesaid provision have been the subject-matter of interpretation in a number of cases.
20. In support of the submission that a bringing back of the property got on partition by all the erstwhile coparceners, is not a condition for reunion, learned counsel for the assessee relied on the decision of the Madras High Court in Venkanna v. Venkatanarayana, AIR 1947 Mad 49. In that case, one of the reunited members had dissipated away all the properties before the reunion members had dissipated away all the properties before the reunion and consequently there was no property which he could have put into the family hotch-pot. Relying on the commentator's view (Mitakshare) set out above, it was contended in that case that the reunion was bad as one of the reuniting coparcener has no property to bring back to the joint family. Rejecting the contention Leach C.J. observed (p. 50) :
'The joint status does not depend on the possession of property. The joint family may have no property at all, but one member may be wealthy in his own right. If he is, it is open to him to allow his private property to be treated as family property and if he does so, it becomes family property. We are of opinion that the fact that the defendant had dissipated the whole his share of the family estate did not prevent an agreement between him and his father to reunite and the father treating his property as joint family property.'
21. This decision supports the submission made for the assessee to some extent only, in that an existence of the property got at an earlier partition by one or more of the reuniting members is not a condition precedent for reunion and even after dissipating the property got at an earlier partition, parties to an earlier partition could reunite with the desire to live, earn and enjoy the income or property acquired after reunion, jointly. Still one aspect of the question which is not covered by the said decision is, is it open for the reuniting coparceners to agree not to bring back the properties got by them if one or more of them are in possession of the entire or a portion of such properties on the date of reunion and does not so bringing back, render the reunion not valid in law
22. Learned counsel for the revenue maintained that a reunion cannot be recognised in law if the erstwhile joint family properties to the extent in existence in the hands of the reuniting members at the time of the reunion is allowed to be retained by them even by agreement.
23. In support of this submission, he placed reliance in Nana Ojha v. Prabhudat, AIR 1924 Pat 647. That was a suit for partition in terms of the provisions of the Hindu law of partition, on the allegation that the suit schedule properties were the joint properties of a reunited Hindu family. The relevant clause contained in the agreement of reunion reach as follows : (pp. 650-651) :
'Now it is the wish of us, the defendants to become again joint in family and property and come and remain jointly in possession and use of the entire family properties. But the share of me, Nana Ojha and my sons shall be 12 annas and that of me, Prabhudat Ojha and my son Biswanath Ojha 4 annas in the joint family properties. We have become joint again under the above stipulations. The said three widows shall get maintenance out of the 12 annas share of me Nana Ojha and my sons. We, Nana Ojha and Prabhudat Ojha, shall remain joint in family during our lifetime or during the lifetime of any of us and we shall never effect partition. After the death of us, the declarants Nana Ojha and Prabhudat Ojha, when our will partition their shares among themselves Kishore Ojha, Harnandan Ojha, Mahabir Ojha sons of me declarant No. 1, shall get each four annas share; to Biswanath Ojha, son of me declarant No. 2, the remaining 4 annas share. All the brothers (cousins) shall get an equal share of four annas each. Though some of the family properties stand in the name of one declarant and other properties in the name of the other declarant and though in future also properties may be acquired in the name of any of the declarants or of his issue and these properties shall be joint and at the time of the aforesaid partition each heir i.e. Kishore Ojha, Haranandau Ojha, and Mahabir Ojha, sons of me declarant No. 1 and Biswanath Ojha, son of me declarant No. 2 shall get 4 annas share in all the family properties.'
24. Considering the text of Brihaspati and the earlier decisions on the point the law on reunion was summarised as follows (p. 650) :
'.... For a reunion two things are essential; firstly, that one can reunite with his father, brother or paternal uncle, in other words, the reunion is restricted to these three classes of cases only;..... secondly, the reunion must take place after separation so that the parties seeking to reunite must have separated before the reunion.....
The effect of a reunion is to place the united coparceners in the same position as they would have been in, had no partition taken place and the property of the united members stands on exactly the same footing as that of members who have always been undivided so that upon the death of any one of the reunited members his share will pass by survivorship to the remaining members and will not get into the hands of any divided members so long as there are undivided members in existence.....
According to the text, therefore, the parties should not only live in one mess (ekanne) and in one place (ekatre) and like one family (ekaparivaranyaye) but they should again join each other's share of the property and remain in possession. It depends upon the evidence in each case as to whether the parties have reunited as stated above.' (p. 651)
25. Applying the above principle to the wording of the agreement concerned in that case, the court held (AIR 1924 Pat 647, 651) :
'The ekararnama in question set forth above, no doubt, declares that Nana Ojha and Prabhudat Ojha would become joint in family and property and would jointly be in possession and use of the family properties, but it does not obliterate the shares of the two brothers of 12 annas and 4 annas respectively which had existed before the reunion. It, therefore, does not amalgamate the two shares but keeps them separate so that they are not able to say to each other, as is required by the text of Brihaspati.
'The property which is mine is thine, and that which is thine is mine.'
Again in an ordinary case of reunion, the widows of the two brothers Brahmadat and Karamdat would have been entitled to maintenance out of the joint property, the share formed by amalgamating the shares of both the brothers. The agreement, however, was that these widows would get their maintenance out of the 12 annas share of Nana Ojha and his sons. On partition, after the death of Nana Ojha and Prabhudat Ojha, among their respective sons, the divisions of the property would not be according to the shares they would have in a joint Mitakshara family but would be according to the share which their respective fathers had in the property before the reunion.'
26. Relying on the above conclusion, learned counsel for revenue contended that the agreement of reunion entered into by Paramanand L. Bajaj and his three sons, in this case, likewise did not also bring about a lawful union in view of the option reserved for the reuniting coparceners under clause 3 of the agreement and the ratio of the Patna case, AIR 1924 Pat 647, applies on all fours to this case.
27. The next decision on which the learned counsel for the revenue relied was the one rendered by the Madras High Court in Manorama Bai v. Rama Bai : AIR1957Mad269 , in which Hindu law on reunion has been considered exhaustively referring to the original texts commentaries and various decisions rendered earlier by the Privy Council and the High Courts. Relevant portion of the judgment reads (pp. 275-6) :
'Thus reunion under the Hindu law takes place where, after partition, the separated coparceners agree to have joint residence, joint estate and joint possession of the estate with the other clear condition that 'the property which is mine is thine, and that which is thine is mine'. In Lakshmi Bai v. Ganpat Moroba, 4 Bom. HCOC 150 at p. 166(A), it has been held that four things are necessary to constitute a reunion under the Hindu law. They are :
1. There must have been a previous state of union;
2. There must have been a partition in fact, that is, apportionment of lands as well as division of estate, in the absence of which it would be a very difficult to establish a conclusive case of reunion as a matter of evidence;
3. The reunion must be effected by the parties or some of them who have made the partition; and
4. There must be junction of estate and a reunion of property as the mere fact of living together at the same residence or the carrying out of joint trade cannot constitute reunion.... What is necessary for the complete reunion is that the divided coparceners should bring into the common stock their whole possession at the time they reunite. 1879-8 Select case No. 12(c). (See C. S. Ramakrishana's Hindu Law, Volume II, page 117)....
The legal construction and effect of a deed effecting separation or its reverse process reunion cannot be controlled or altered by the subsequent conduct of the parties........ The onus of proving that such deeds do not evidence a real and bona fide transaction between the parties thereto but are a mere pretense or that they were intended ab initio to be operative only in a particular event or contingency lies on the party who asserts to that effect.'
28. This decision, apart from reiterating the law governing reunion laid down in the earlier decisions, stated that for a complete reunion, the reuniting coparceners should put the whole of their possession into the common stock of the reunited family. This statement appears to be a little wider. It may be correct to say that the reuniting members should bring back the property got at an earlier partition and still in their possession to the reunited family, but it is not correct to state that they should throw into the common stock, the whole of their precession which might include self acquired property, which they had acquired earlier to the date of partition or subsequently, independently and without the aid of joint family nucleus, as under the Hindu law individual coparceners of an HUF are not debarred from possession self-acquired property. The decision also states that the question whether there has been a reunion or not is a question of fact to be decided on the facts and circumstances of each case and that the legal effect of reunion cannot be controlled by the subsequent conduct of the parties.
29. The Supreme Court in the case of Bhagawan Dayal v. Reoti Devi : 3SCR440 , gave their full assent to the view taken by the Judicial Committee of the Privy Council and the law as summarised in Mayne's Hindu Law. The relevant portion reads (pp. 295-296 of AIR) :
'(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. Muthuvenkatachala Moniagar
'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, 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 in Balabux Ladhuram v. Rukhmabai  LR 30 IA 130 (PC).'
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 summarised in Mayne's Hindu Law, 11th Edn, thus, at p. 569 :
'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 very consent 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.'
As we give our full assent to these observations, we need not pursue the matter....'
30. The Supreme Court also approved the view taken by the Madras High Court in Venkataramayya v. Tatayya AIR 1943 Mad 538, and that of the Madhya Pradesh High Court in Ramadin v. Gokulprasad : AIR1959MP251 , both of which were to the effect that an agreement to reunite could be proved by the subsequent conduct of the parties in the absence of a formal registered document.
31. While the decision of the Madras High Court in Venkanna's case AIR 1947 Mad 49, supports the submission of the assessee that an erstwhile coparcener, who had spent away the property could reunite without bringing back any property into the reunited family, yet, as pointed out earlier, it does not lay down that even if the erstwhile coparceners had in their possession, at the time of reunion, all or any portion of the property which they had got on partition, they could reunite, keeping the property separately as their individual property.
32. The decisions on which the learned counsel for the revenue relied lay down that unity in interest and estate is essential to constitute a reunion. But the unity in estate could also mean an agreement to have joint right and enjoyment in respect of all future acquisitions made by joint effort on and from the date of reunion. This could be so, as reunion is possible even if all the reuniting members had lost or dissipated away the properties got at (an earlier) partition. The Madras High Court in the case of Manorama Bai : AIR1957Mad269 , has observed that for a complete reunion the reuniting members should throw their properties into the common stock. But there is no decision which holds that a reunion brought about expressly with the agreement among the erstwhile coparceners is void unless all the parties to the reunion throw the share of properties got at an earlier partition and remaining in their possession on the date of reunion, into the common hotchpot of the reunited family. The observations of the Madras High Court in the said case to the effect that legal effect of reunion cannot be controlled by subsequent conduct of parties indicate that, once the reunion is proved, the law takes its own course and a contrary stand cannot be countenanced. The Patna decision, which is the nearest to the point urged for the revenue, only laid down that as the agreement of reunion concerned in that case specified the shares of the parties contrary to the provisions of the Mitakshara law on the point, it was no reunion in the real sense of the term and does not cover the point arising for consideration in this case, as in this case there is no clause for distribution of the properties thrown into the common hotchpot or acquired after reunion in a manner contrary to the provisions of the Mitakshara law.
33. On a consideration of the basic texts on the point and the views of commentators expressed in Mitakshara and Smritichandrika, and the case law cited before us and having due regard to the real purpose and intent of the Hindu law governing HUF, it appears to us that a provision for reunion has been provided for, for enabling the erstwhile members of an HUF, to come together and to form once again a joint family governed by the Mitakshara law. The mutual love, affecting arising from blood relationship and the desire to reunite proceeding therefrom, constitutes the very foundation of a 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 Viramitrodaya, translated by Gopalachandra Sarkar (1879) pp. 204-205; Vivadachintamani, Gaekwad's Oriental Series, Vol. XCIX, pp. 288-289). But even so there is no controversy that a reunion is possible only among persons who were, on an earlier date, members of an HUF. Reunion, therefore, is a reversal of the process of partition. 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 an HUF once again and, therefore, reunion creates a right in all the reuniting coparceners in the joint family properties, which were the subject-matter of a partition, among them to the extent they were not dissipated away before the date of reunion. That this would be the legal consequence of a genuine reunion is forcefully brought about by the text of Brihaspathi, which provides 'where coparceners have again reunited through affection, they shall mutually participate in each other's properties.' Mitakshara states that mixing up of divided properties is the effect of a reunion. Therefore, it follows, no coparcener, who is a party to a reunion and who admits the reunion, shall be heard to contend that the property, which he had got at an earlier partition, and is 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 the reunited members got at an earlier partition and in their possession at the time of the reunion becomes the properties of the joint family, notwithstanding the fact that some of them have failed to throw those properties into the common hotchpot, whether with or without the knowledge or consent of each other. It is a different aspect if reunion itself is not admitted by the persons who are parties to a reunion and it is not proved by the party pleading reunion, in which event there would be no reunion at all.
34. In all the cases which have come up before the courts, while one party contended that there was reunion and the suit claim was based on such reunion, the other party disputed the reunion. This is however a case in which reunion is not disputed by any party to the reunion and the following essential ingredients of reunion are found to exist. They are -
(i) Father and three sons formed an HUF earlier.
(ii) There was a partition between them.
(iii) Reunion is between father and three sons, the permissibility of which under Hindu law is beyond any controversy.
(iv) The fact of the reunion is evidenced by a written agreement, though it is not a registered deed of reunion.
(v) There is evidence of subsequent conduct of at least one of the coparceners, viz., Paramanand L. Bajaj, which proves the reunion, as, within three days thereafter he has thrown into the family hotchpot all the properties which he had got on partition and consequently it has become the joint family property of the reunited HUF in which every reunited coparcener has a share.
(vi) There is no condition that the property thrown into the hotch pot or the income or property which is earned or acquired by the reunited members on and after the date of reunion shall not be available for common enjoyment and distribution in accordance with law, but shall be distributed in any specified ratio, contrary to Mitakshara law on the point, as was the position in the Patna case (AIR 1924 Pat 647), which clearly means that every property thrown into the hotchpot of the reunited family and the income earned by every one after the date of the reunion is, available for mutual participation and enjoyment, satisfying the principle of junction of estate, i.e., the principle of 'what is thine is mine or what is mine is thine' to that extent.
(vii) As against the above facts and circumstances which support the plea of reunion, there was no material before the authorities, that any of the persons, who is a party to the reunion, was disputing the factum of reunion.
35. These are the incontrovertible facts and circumstances is support of the plea of reunion.
36. The only trouble spot, however, is clause 3 in the agreement dated March 27, 1971, which is the evidence of the reunion in writing, which gives an option to the rented persons either to keep the properties which they had got on partition separately or to put them into the family hotchpot. It is clause which prevailed with the ITO, the first appellate authority and the Appellate Tribunal to hold that there was no reunion. Therefore, the real and the only question for out consideration is whether the view that because of an option of the type found in clause 3, the view that there was no reunion is justified. It appears to us, it is not. Firstly, the clause is not destructive of reunion, as even according to the clause every reuniting member can put the erstwhile joint family properties in his possession into the common stock at any time. As stated earlier, Paramanand L. Bajaj had already put his property into the hotchpot of the reunited HUF. In any event, the reunion has the effect of creating joint interest in all the family properties in the possession of the reunited members. Therefore, in our view, when reunion is proved by the existence of the facts and circumstances set out above, the option retained in terms of clause 3 may be invalid as being repugnant to the reunion and unavailable to the reunited coparceners, as contended for the assessee, but the reunion cannot be invalid on that account. In fact this question really arises in the assessment proceedings against the reconstituted HUF on whose behalf returns are stated to have been filed by Paramanand L. Bajaj as karta and which are stated to be pending before the ITO. It would be open to the I.T. authorities to ignore clause 3 of the agreement and to bring all the properties which belonged to the larger HUF, before partition, to tax under the Act at the hands of the reunited HUF.
37. In conclusion, we hold that in view of the unequivocal declaration of reunion, the evidence of which is kept in writing, which is also supported by the subsequent conduct of Paramanand L. Bajaj in putting all his properties back into the reunited HUF, it is not open to the I.T. authorities or the court to hold that there is no reunion, as it is a matter of individual volition. Similarly, we are of the view that it is not open for the individuals, who admit the reunion, to avoid its legal effect, viz., that the properties which they had got on partition and are and are existing with them at the time of the reunion have not become the properties available for common enjoyment of the reuniting coparceners and succession in accordance with the provisions of the Mitakshara law as modified by legislation.
38. One other aspect which remains for consideration is, whether reunion could have been brought about in this case only through a registered deed as held by the Tribunal following its earlier judgment in Kasturiranga Shetty's case. The view is erroneous. It is well settled that a partition of an HUF can be effected orally and it follow that parties to such oral partition can reunite also with mutual consent without the requirement of any registered deed of reunion. If, however, an earlier partition was by a registered deed, the reunion which follows it, to be valid in law, must also be effected by means of a registered deed (See Mahalakshmamma v. Suryanarayana, AIR 1928 Mad 1113). In the case of Kasturiranga Shetty, the partition was by a registered document, but not the reunion. The view taken by the Tribunal in that case was inapplicable to this case as, in the present case, the partition was not by a registered deed.
39. In the result, we answer the question referred for our opinion in the negative, i.e., in favour of the assessee.