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Dinabandhu Behera Vs. Bisuni Behera and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 158 of 1963
Judge
Reported inAIR1965Ori1
ActsHindu Law
AppellantDinabandhu Behera
RespondentBisuni Behera and ors.
Appellant AdvocateM. Mohanty and ;A.J. Mohapatra, Advs.
Respondent AdvocateB.K. Ray, Adv. (No. 1)
DispositionAppeal allowed
Cases ReferredVenkataramayya v. Tatayya
Excerpt:
.....sense of the hindu law is clearly established. 6. in this view of the evidence, i am of opinion that the plaintiff has failed to rebut the presumption against a reunion after a partition......2 is the elder son. the plaintiff's case is that he and his two sons defendants 1 and 2 formed a joint hindu family owning a house and a homestead as the only immovable property and the family had business in brass and bell-metal articles. in 1941 there was dispute in the family. thereupon there was partition of the homestead and the business assets into three equal shares among the plaintiff and his two sons. the plaintiff's case is that within a few days after the partition there was reunion between the plaintiff and his younger son defendant no. 1 and they carried on their business jointly as before. due to differences with his younger son defendant 1 after his marriage, the plaintiff filed the suit for partition. defendant 3 was impleaded in the suit as defendant 1, transferred.....
Judgment:

S. Barman, J.

1. Defendant No. 1 is the appellant. This appeal arises out of a suit for partition. The plaintiff is the father of defendants 1 and 2, Defendant 1 is the younger son and defendant No. 2 is the elder son. The plaintiff's case is that he and his two sons defendants 1 and 2 formed a joint Hindu family owning a house and a homestead as the only immovable property and the family had business in brass and bell-metal articles. In 1941 there was dispute in the family. Thereupon there was partition of the homestead and the business assets into three equal shares among the plaintiff and his two sons. The plaintiff's case is that within a few days after the partition there was reunion between the plaintiff and his younger son defendant No. 1 and they carried on their business jointly as before. Due to differences with his younger son defendant 1 after his marriage, the plaintiff filed the suit for partition. Defendant 3 was impleaded in the suit as defendant 1, transferred some of the suit properties in his favour defendant 1 alone contested the suit. His defence is that there was no reunion and the suit properties were acquired by defendant 1 alone from the profits of his own business. Both the courts below found that there was reunion and accordingly decreed the plaintiff's suit for partition. Hence this Second appeal.

2. The only question is: Was there subsequent reunion between the plaintiff and his younger son defendant No. 1 after partition in the family in 1941? The well-settled legal position in Hindu Law on re-union is this : 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 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. 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 incident. 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 bring themselves within all the rights and obligations that follow the fresh formation of a joint undivided Hindu family. Mere jointness in residence food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest unless an intention to become reunited in the sense of the Hindu law is clearly established. Bhagwan Dayal v. Mst. Reoti Devi, AIR 1962 SC 287 Venkataramayya v. Tatayya, AIR 1943 Mad 538.

3. In the present case there is no documentary evidence on reunion. The plaintiff's case is that within a few days after partition in 1941 there was reunion. On May 21, 1946 three documents were executed in none of which there is any reference to reunion. Ext. A and Ext. B are registered sale deeds by the plaintiff and his wife in favour of defendants 1 and 2 with regard to the homestead. The recitals therein are contrary to the story of alleged reunion between the plaintiff and defendant No. 1. In fact there is no reference to the alleged reunion. If there was in fact the alleged reunion, the plaintiff's one-third share would have been the share of the plaintiff and defendant No. 1 jointly. Ext. 3 also dated May 21, 1946, is an agreement between defendants 1 and 2. There is also no reference to the alleged reunion. It shows that the properties are kept separate (Nij Nij).

4. That apart, it is a significant circumstance that all the acquisitions made by defendant No. 1 under several sale deeds, Ext. A and Ext. B/1 to B/7 are all sale deeds, executed on different dates in the years between 1943 and 1954 all in favour of defendant No. 1 alone and not in favour of the plaintiff. If there was the alleged reunion, then the plaintiff would have been added as a joint purchaser. These documents are positive evidence of continued separation between the plaintiff and defdt. No. 1. The plaintiff has not been able to show that there was any contribution by him for the purchase of these properties.

5. As regards oral evidence of P. Ws. 5, 6 and 8 Bhadraloks who are alleged to have effected the reunion, they have no personal knowledge of the alleged reunion--The plaintiff respondent submits that although there is no documentary evidence, circumstances showing reunion are these: Defdt. 1 having been a bachelor in 1941 it was the normal tendency of the younger bachelor so to reunite with his father the plaintiff. It was not until three years after the reunion that defdt. I had married. Ext. 3 agreement dated May 21, 1946 refers to the plaintiff living with defendant No. 1. Ext. 3 contains recital purporting to show that this plaintiff's share was kept with defendant-1. Ext. 1 series being the rent receipts of the years 1956, 1957 and 1958 were produced by the plaintiff. In my opinion, none of these circumstances prove reunion. The decision of both the Courts below is based on mere surmises and conjectures and their conclusion is based on wrong inference. Mere residence of the plaintiff and defendant-1 living together is not by itself conclusive. The recital in Ext. 3 does not show that the plaintiff's share was merged with the share of defendant-1. As regards rent receipts Ext. 1 series, these are all in the name of defendant; No. 1. The rent receipts do not help the plaintiff.

6. In this view of the evidence, I am of opinion that the plaintiff has failed to rebut the presumption against a reunion after a partition. The decision of both the courts below is vitiated by wrong approach to the case as based on incorrect appreciation of the legal position as discussed above. So, the judgment and decree of the courts below are set aside. The plaintiff's suit for partition stands dismissed. This appeal is allowed with coats throughout.


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