1. This appeal by the first defendant is directed against the judgment and decree dated 26-3-1973 passed by the Second Addl. Civil Juge, Bangalore City in O. S. No. 28 of 1969 on his file, decreeing the suit of the plaintiff as prayed for.
2. The relevant plaint averments in brief are: One Ugrappa Reddy was the propositus of the family. His wife was Muniyamma. He had five sons, namely, Lakshmiah Reddy, Munireddy, Yengappa Reddy, Anneppa Reddy and Krishna Reddy. Krishna Reddy is the plaintiff in the suit. Anneppa Reddy is the first defendant.
3. It is the case of the plaintiff as also of the first defendant that there was a regular partition among the members of the family on 264-1963 as per Ext. P-1 a registered Partition Deed. Thereafter, it is the case of the plaintiff that himself and defendant No. 1 reunited and were living in union, carried on joint business, earned profits and acquired properties. Since disputes arose between them in December 1967, he demanded of defendant No. I to give his half share in the schedule properties along with profits.
4. When the suit was pending, defendant No. 1 sold half portion of the suit item No. 1 in favour of the second defendant and hence the second defendant was also added as a party.
5. Defendant 1 contested the suit. He contended that there was no reunion after partition, between him and the plaintiff. They never lived after partition as members of a coparcenary. There was no intention on their part to bring about such a reunion. They acquired properties separately as also jointly. He also denied that they had common business and contended that all the suit schedule properties were his self-acquired properties. The second defendant contended that he had purchased the property from the first defendant, on enquiry that it was the self acquired property of defendant No. 1. The plaintiff filed a rejoinder reaffirming the plaint averments.
6. The trial Court raised the following issues as arising from the pleadings:-
(1) Whether the plaintiff proves that he and the defendant after the partition dated 26-8-1963 reunited themselves and constituted the coparcenary and became members of the joint family?
(2) Whether the plaintiff proves that the suit properties are the coparcenary and joint family properties of himself and the defendant
(3) Whether the plaintiff proves that the suit properties were acquired with the aid of joint family nucleus available with the plaintiff and defendant which came to be blended and merged in the joint family at the time of reunion?
(4) Whether the plaintiff proves that the suit properties are the joint acquisitions of himself and defendant?
(5) Whether the defendant proves that all the suit properties except R. S. No. 8/1 and 8/3 of Vaddarapalya, are his self acquisition and separate properties?
(5-A) Whether the second defendant is entitled to any equities?
(6) Whether the plaintiff proves that there are joint family debts and that they are binding on the defendant also; if yes, what order in respect of them?
(7) To what share, the plaintiff and defendant are entitled?
(8) Is the plaintiff entitled to partition and possession ?
(9) Is the plaintiff entitle to claim accounts of mesne profits before suit or the date of suit, if so, from what date and what amount
(10) Is the suit bad for misjoinder of causes of action?
(11) Is the court-fee paid proper and sufficient ?
(12) What decree
7. During hearing, the plaintiff examined himself as P. W. and examined P. Ws. 1 to 5 on his behalf. He also got marked Exhibits P-1 to P-28. As against that, the contending defendant No. I examined himself as DW. 10 and examined 9 other witnesses on behalf of defendants and got marked Exhibits D-1 to D-25.
8. The trial Court, appreciating the evidence on record, answered all the material issues in favour of the plaintiff and in that view the trial Court decreed the suit of the plaintiff as prayed for, declaring the plaintiff's half share in the suit schedule properties. The trial Court, however, rejected the prayer for past mesne profits. The family debts except debt due to one Raja Venkatarama Setty were held as not binding on the defendant. The amount realised by the plaintiff by sale of two lorries were directed to be subjected to partition. The second defendant was not granted any equity. The plaintiff was awarded his costs. Accordingly, a preliminary decree was drawn. Aggrieved by the said judgment and decree, the first defendant has instituted the above regular first appeal before this Court.
9. The learned Advocate appearing for the appellant strenuously urged before us that the trial Court was not justified in coming to the conclusion that there was a reunion of plaintiff and defendant No. I as pleaded by the plaintiff. He submitted that the trial Court failed to appreciate the subsequent conduct of the parties. It clearly established that there was absolutely no in. tention of reunion on the part of the said brothers and they never treated the properties that fell to their shares as coparcenary properties. He submitted that the oral and documentary evidence on record were not properly appreciated by the trial Court while arriving at the conclusion that there was reunion between the plaintiff and defendant No.1. In that view, he submitted that there was no cause of action for the suit instituted on the footing that there was reunion between the plaintiff and defendant No. 1.
10. As against that, the learned Advocate appearing for the contending respondent/ plaintiff argued supporting the judgment and decree of the trial Court. He further submitted that he had filed an application. I. A. No. VI for amendment of the plaint, providing for one more ground for the relief claimed, alternatively, on the footing that the suit schedule properties were acquired by the plaintiff and defendant No. I jointly as tenants in common and as such the plaintiff was entitled to half share in the suit schedule properties.
11. The learned Counsel appearing for the appellant no doubt filed his objections to the said amendment application. He submitted that by allowing L A. No. VI, cause of action in the suit would be changed and it would amount to a different suit altogether. He also submitted that there was inordinate delay in giving the application for amendment. Hence, he submitted that the said application should be rejected.
12. The points, therefore, that arise for our consideration in this appeal are:
(1) Whether the trial Court was justified in holding that there was reunion after partition evidenced by Exhibit P-1, as averred in the plaint?
(2) If not, whether the amendment sought should be allowed in the interests of justice and to avoid multiplicity of litigation?
(3) What order?
13. It is well settled that the coparceners after severance of status and partition can reunite, either all or some of them, and thus become reunited in estate and interest. In Balabux v. Rukhmabai ((1903) ILR 30 Cal 725) (PC), it is held that a reunion in estate property so-called can only take place between persons who were parties to the original partition. The reunion thus can take place between persons who were parties to the original partition. It is true that the Commentators are not unanimous on the point. According to the Mitakshara, Dayabhaga and Smriti Chadrika a member of a joint family once separated can reunite only with his father, brother or paternal uncle, but not with any other relation, as, for instance, paternal grandfather or paternal uncle's son, though such relation was a party to the original partition. According to the Vivada Chintamani (Mithila school) and the Mayukha,, a person may reunite with any relation who was a party to the original partition Only males can reunite. (Nanuram v. Radhabai, ILR (1942) Nag 24 equivalent to ).
14. On the facts of the present case, there is no dispute that there was a partition among the members of the coparcenary as per Ext. P-1 dated 26-8-1963, a registered Partition Deed. It is further not in dispute that the plaintiff and defendant No. I are brothers and they are governed by the Mitakshara school. That being so, there is no impediment as such for reunion. But whether there has been a reunion is A question of fact and since it is so averred and pleaded by the plaintiff and relief is sought on that basis. It is obvious that the burden of proving the reunion rests heavily on the plaintiff.
15. Supreme Court of India in the case Bhagwan Dayal v. Mst. Reoti Devi : 3SCR440 had an occasion to consider the aspect of reunion and the Supreme Court of India in para 22 of the judgment has ruled thus in that behalf:-
'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 (1903-30 Ind App 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 partition the presumption would be against 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 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 brin.9 themselves within all the rights and obligations that follow from the fresh formation of a Joint undivided Hindu family --- ------ ------ ---- ..................... ................................. ...... ......
16. Thus, the Supreme Court of India has emphasised that under Mitakshara, a reunion is of rare occurrence and that when it is pleaded by a party, he must establish it by cogent, convincing and unimpeachable evidence. In other words, it must be proved strictly. It is further cautioned by the Supreme Court of India that it is not enough if the erstwhile members of the undivided family after partition live together or carry on business together. It must further establish by convincing evidence that they had the intention to alter their status and revert back to the status of coparcenary. Ambiguous piece of conduct equally consistent with re-union or ordinary joint enjoyment cannot sustain the plea of reunion. Bearing these salutary principles of law, laid down ex cathedra by the Supreme Court of India, we would presently proceed to appreciate the evidence on record in the matter of proof of reunion.
17. The learned counsel appearing for the respondent no doubt canvassed before us the fact that after partition the plaintiff and defendant No. I lived together under the same roof, first in the house in Rashtreeya Vidyalaya road and thereafter in the house constructed at Jayanagar. He invited our attention to Ext. P-28, the Ration Card, to show that they were living together. He further invited our attention to the fact that the brick business and the business in building materials were carried on together and jointly by both the plaintiff and defendant No. 1. He also submitted that they were carrying on joint borrowing, joint purchase for the business. He also submitted that some documents which were taken in the name of defendant No. 1, were produced by the plaintiff in the Court. The cumulative effect of all these pieces of evidence, he submitted, would lead to the irresistible conclusion that there was reunion between the plaintiff and defendant No. 1.
18. The learned counsel for the appellant, however, pressed into service the fact that the subsequent conduct of the parties did not establish the unity in estate and interest, as they did not conduct themselves after the partition as members of a coparcenary. He pressed on us that intention is the most important factor in the matter of reunion and the evidence on record showing the conduct of the parties must satisfy the Court that they had intention to alter their position and get back to the status of coparcenary as before. He submitted that the evidence on the crucial point was lacking and the evidence on record militated against it.
19. The Supreme Court of India in the case Bhagwati Prasad Sah v. Rameshwari Kuer : 2SCR603 has ruled that the mere fact that separated coparceners choose to live together or act jointly for purpose of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara Law unless there is further the intention to reunite. Speaking on this aspect in para 7 of the judgment Mukherjea, J. who spoke for the Bench has observed, inter alia, thus :
'Before we discuss the evidence on the record, we desire to point out that on the admitted facts of this case neither party has any presumption on his side either as regards jointness or separation of the family. The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but, as it is admitted here, that Imrit, one Of the coparceners, did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiffs side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief ...........'
It is further observed :
'Except in the case of reunion, which is not set up in the present case, the mere fact that separated coparceners choose to live together or not jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara Law.'
This Court in the case Easwarappa v. Shiva lingappa (1968 (2) Mys 1LJ 266) speaking through Somnath Iyer, J. as Ile then was, has observed:
'A reunion is established only when the divided coparceners intend to restore unity both in estate as well as in interest. The evidence to the effect that after, partition, the parties were living together in the same house, cultivating the same or all the properties together and were spending the in. come over common expenditure is insufficient to establish reunion.'
In the said case also the brothers were Iiving together, carrying on business together and cultivating the lands together.
20. Thus, it is obvious that the distinct feature of reunion is not merely living together or Carrying on trade or business together, but the intention to revert back to' the status Of coparcenary, the intention to bring about unity in estate and interests. It is well settled that the very hall mark coparcenary is unity of possession community of interest. Coparceners are in food, worship and estate. A person wants to prove reunion must necessarily establish by cogent and reliable evidence, that the intention of the members was to bring about such unity of interest in estate. We have, therefore, to consider whether such evidence is forthcoming on the facts of the present case.
21. It is true that the evidence of subsequent conduct is a relevant and reliable piece of evidence to establish such intention.
22. The learned Counsel appearing for the appellant invited our attention to Exhibit P-19. Exhibit P-19 is a sale deed dated 16-12-1964. Exhibit P-20 is an agreement of sale in regard to the said property entered into on 6-11-1964. It pertains to suit Item No. 1. Exhibit P-19 shows that the property was purchased in the names of the plaintiff and defendant No. 1. The property was purchased from Smt. Smitha Ben H. Patil. The learned Counsel for the appellant pressed on us that if really it was the intention of the brothers to revert back to the status of coparceners, they would not have purchased the property jointly in their names. It is further stated in the sale deed that the brothers advanced funds equally from their earnings. That would clearly show that there was no intention in the brothers to revert back to the status of a coparcenary. As stated above unity of position and community interest are the quintessence of a coparcenary. Their conduct in purchasing the property under Exhibit P-19 militates against the theory that they had any intention of reunion. In the case of reunion it does n6t become merely joint acquisition, but united acquisition and the deed Exhibit P-19 belies such an intention. It may also be noted in this context that the date of Exhibit P-19 is 16-12-1964 and the date of the partition is 26-8-1963. If there was reunion immediately after the partition, it is not probable to expect such a deed of sale immediately after partition.
23. It may also be seen that some properties are acquired exclusively in the name of the first defendant, one of them being the property acquired under Exhibit D-4 dated 23-9-1963. The sale is taken in the name of defendant No. 1 and there is no indication whatsoever in the sale deed to show that the funds flowed from the reunited family. Similarly, the subsequent conduct further shows that these two brothers treated their properties as separate. Exhibits P-2 to P-11 would show that the Hun4dies were issued by both the brothers jointly and cheques mentioned in Ext. P-18 would reveal that these cheques were issued separately to the two brothers indicating thereby that they never revealed by their conduct, their intention to realter their position after partition and to revert back to the status of coparcenary.
24. It may further be mentioned that the plaintiff by Ext. D-1 sold a lorry alone on 11-3-1968, though he was younger to defendant No. 1, for Rs. 15,000/-. That again is not consistent with the theory of reunion. The trial Court has not considered these aspects and the correct position of law in that behalf.
25. The learned counsel appearing for the respondent/plaintiff no doubt invited our attention to certain sentences in the deposition of witnesses for the plaintiff to show that the brothers lived together under the same roof. They held a common ration card and that they carried on business together. As we have already pointed out above, that conduct is not sufficient to reach the conclusion of reunion for which the intention to revert back to the status of coparcenary is the most essential factor. Since that is lacking and, in fact, not proved on the facts of this case, as discussed above, we are not persuaded to agree with the finding of the trial Court that the plaintiff proved reunion as alleged. We are constrained to hold that the evidence on record would clearly establish that reunion is not proved by the plaintiff. Hence, we set aside the finding of the trial Court under the issue and hold that the plaintiff has failed to establish reunion.
26. It is in this context that we have to consider the application for amendment of the plaint given by the learned counsel for, the respondent/plaintiff. By the proposed amendment, the plaintiff seeks relief on the footing of joint acquisition by the two brothers as tenants in common without resorting to the theory of reunion. The learned counsel for the appellant no doubt submitted that that would change the character of the suit.
27. The relief sought for in the suit is for half share of the plaintiff in the suit schedule properties and that is sought to be done by the amendment is to add a new ground for the relief. The relief being the same, in such circumstances it cannot be said that there is a change in the character of the suit. (Vide Bhimsingh v. Kansingh : 2SCR628 and seel also : AIR1978Cal189 ).
28. It is a well established principle of law that Courts should be liberal in granting the amendment with a view to avoid multiplicity of proceedings and to do substantial justice between the parties. That being so we are satisfied that the proposed amendment is necessary and relevant to do substantial justice between the parties and to avoid multiplicity of litigation.
29. Mere delay in giving an application for amendment does not defeat the amendment. It could be compensated by awarding costs. In the circumstances, we are per-1 suaded to allow 1. A. No. VI, the application for amendment, on condition that the plaintiff shall pay Rs. 500/- to defendant No. 1 the present appellant, before the plaintiff is allowed to carry out the amendment to the plaint.
30. When once the amendment is allowed, it is obvious that opportunity has to be given to file a counter to the amended plaint and additional issues arise for consideration and an opportunity should be given to adduce additional evidence to the parties if they so desire. That clearly entails remand of the case to the trial Court.
31. In the result, the appeal is allowed. The judgment and decree of the trial Court are set aside and the suit is remanded to trial Court with a direction that the plaintiff should be allowed to carry out the amendment within 15 days of the receipt of records by the trial Court on payment of Rs. 500/- towards costs to the first defendant in the suit. The trial Court shall then give opportunity to the defendants to file their, additional written statement. On raising necessary issues, the trial Court should give further opportunity to the parties to lead additional evidence, if they so desire and then proceed to dispose of the suit in accordance with law. Since the matter is old, the trial Court is directed to dispose of the suit preferably within six months, on the receipt of records.
Parties are directed to be present before the trial Court on 21-6-1982, to take further instructions.
32. No costs of this appeal.
Refund admissible Court-fee.
33. Order accordingly.