(1) This appeal is filed by the plaintiff, whose suit for partition of the properties described in schedules A, B and C and allotment of one such share to him was substantially dismissed by the Principal Subordinate Judge of Vellore.
(2) The plaintiff is the son of the second defendant and the grandson of the first defendant Narayan Reddiar had four sons. Venkatarama Reddi. Govinda Reddi (plaintiff's father), Venkatakrishna Reddi, 3rd defendant, and Gopalakrishna Reddi, 4th defendant, and one daughter Rajambal Ammal, 5th defendant. Venkatarama Reddi is not a party to the suit. The case as set up by the next friend of the minor plaintiff Balasubramania Reddi is that the first defendant and his fur sons constituted members of a Hind joint family. In the year 1929 when Venkatarama Reddi, the eldest son of the first defendant, expressed a desire to desperate himself form the joint family, the first defendant effected a partition on 22-10-1929 in and by which he divided the joint family properties among his sons and allotted one share to his eldest son Venkatarama Reddi and put him in possession of his share of the properties. As defendants 2 to 4 were minors at the time of the partition, the first defendant was in possession and management of the properties allotted to them. It is the case of the plaintiff that even after the partition the other members of the family constituted to live together as members of a reunited family under the management of the first defendant.
It is alleged in the plaint that three sums of Rs. 1000 each were set apart at the time of the partition for the marriage expenses of defendants 2 to 4, and the plaintiff now calls upon the first defendant to account for these sums. It is further alleged in the plaint that during the management of the first defendant, several properties were purchased in the name of himself and his sons and daughter from and out of the income of the joint family. The plaintiff claims a share in all these properties stating that they are joint family properties in which he has got 1/8th share and prays for partition and allotment of his share. The plaintiff also alleges that the first defendant lent moneys to various persons amounting to Rs. 15000 form and out of the joint family income. Further the first defendant in order to benefit his daughter 5th defendant is alleged to have executed a settlement deed in respect of the property described in schedule B (1). Alleging that his interests would be considerably jeopardised if he continues to live jointly with defendants 1 to 4, the plaintiff filed the suit out of which this appeal arises for partition of the properties described in schedules A, B, and C to the plain.
(3) The suit was resisted by all the defendants. They filed written statements to the effect that there was a partition in the year 1929, whereby specific shares were allotted to each of the sons of the first defendant, and that the properties allotted to the sons were handed over to them as and when they become major and subsequently they were in possession and management of their respective properties and were purchasing form and out of the income thereof several items of properties in their names. The plaintiff's father second defendant received his share of the properties in 1932, when he became major and was managing the same through his brother-in-law. The first defendant also pleaded in his written statement that whatever properties he settled on his daughter, fifth defendant, belong to him being his self acquisitions and the plaintiff has no manner of right, title or interest in respect o those properties. The second defendant, i.e., plaintiff's father, pleaded in his written statement that he has no interest in the properties purchased in the names of the first defendant or the other defendants. The 4th defendant alleged in his written statement that the properties standing in his name were acquired form his own funds, but pleaded that he has no objection to a partition being made of all the items of properties excepting the items purchased in his name. In her written statement, the fifth defendant stated that the properties settled on her by her father originally belonged to her maternal grandfather, who settled the same on her mother, and that the plaintiff cannot question the settlement effected by her father or claim any share in these properties. On these pleadings the parties went to trial.
(4) The learned Subordinate Judge framed several issues the important among them being, whether the first defendant was in possession and management of all the family properties after the partition dated 22-10-1929, and whether even after the partition all the members especially defendants 1 to 4 constituted members of a reunited family. The learned Judge after considering the oral and documentary evidence found that there was a complete and effective partition in 1929 that there was no reunion among the members of the family after the partition, that the first defendant handed over the properties to his sons on their attaining majority and the second defendant received his share of the properties in 1932, when he became major and got married and he was subsequently in possession of his share of the properties and that the plaintiff cannot claim a share either in the properties purchased in the individual names of defendants 1, 3 and 4 or in the properties settled on the 5th defendant. On these finding he gave a decree to the plaintiff only for a two-third share in the A schedule properties, which were allotted to the plaintiff's father in the 1929 partition, and also in Schedule B-8 property in respect of which there is no dispute. He dismissed the suit in other respects and directed the next friend to pay the costs of the suit.
(5) The fifth defendant herself had filed a separate suit O. S. 106 of 1957 against the plaintiff, her brothers (including the plaintiff's father) and others for a deceleration that the settlement deed executed by her father in her favour was binding on all the members of the family. That suit was decreed as prayed for. There is no appeal against the judgment and decree in that suit. It is only against the judgment in O. S. 131 of 1955 that the plaintiff has preferred the present appeal.
(6) It is the common case that originally the first defendant and his sons defendants 2 to 4 and Venkatarama Reddi constituted members of a joint family and that when the said Venkatarama Reddi wanted to have a partition of his share in the properties, the first defendant effected a partition in 1929 between himself and his sons, which he is entitled to do. There is no dispute in regard to the division of the properties in the year 1929. It is also common ground that at the time of the partition the plaintiff's father (defendant 2) and paternal uncles (defendants 3 and 4) were minors. In the year 1932, when the plaintiff's father was married the properties allotted to him were handed over to him, were handed over to him, and as he happened to be a blind man his brother-in-law was managing these properties. He lived for a period of 25 years after the partition, and only died subsequent to the institution of the suit. During his life time, he never complained to anybody that the properties allotted to him under the partition deed were not handed over to him and he was not in possession of these properties. On the other hand, in his written statement he stated that ever since he attained majority he has been in exclusive possession and enjoyment of the properties got by him under the partition deed and that the next friend who has instituted the suit 'has nothing to lose and he has not got the real interest of the minor in prosecuting the suit'.
In the plaint it is clearly admitted that there was a partition in 1929 and the properties allotted to the plaintiff's father was also fully described in the A Schedule. Even in the notice Ex. A. 3 issued by the plaintiff and his mother through their counsel at Tiruvannamalai the case set up by them was that there was a partition in 1929 and a share was allotted to Venkatarama Reddi and that it was agreed that the properties set apart for the shares of the minor sons of the first defendant should be managed by the first defendant during their minority and delivered over to them on their attaining majority. It was alleged in that notice that the first defendant failed to deliver the properties allotted to the second defendant on the latter attaining majority and the first defendant was called upon by the said notice to account for the income of the properties allotted to the second defendant from 1929. But in the plaint another case is set up that the partition of 1929 was only for the purpose of allotting a share to Venkatarama Reddi, who wanted to get himself separated form the family, that the properties were divided into five shares for that purpose and one such share was allotted to each of the sons, and defendants 2 to 4, who were then minors continued to live together with their father the first defendant. It is urged that even though there was a disruption in status in 1929, the father and the minor sons continued to live together as members of the joint family; that is, they constituted members of the Hindu joint family with the first defendant as their manager. During his management of the properties, the first defendant is alleged to have purchased several items of properties in the individual names of the other members of the family and the plaintiff claims a share in those properties. The first point that we have to consider is whether on the facts in this case is there a reunion of the members of the family after partition was effected in the year 1929.
(7) It is established law that a Hindu family is presumed to be joint until the contrary is proved. But when one of the coparceners separates himself from the other members of the joint family and has his share in the joint family partitioned off form him, there is no presumption that the rest of the coparceners continued to be joint. Once a general partition has taken place, reunion is the only means by which the original joint status can be re-established and the remaining coparceners can again become members of the joint Hindu family. The mere fact that separate coparceners choose to live together or act jointly for the purpose of cultivation or business would not give them the status of co-parceners under the Mitakshara law. To constitute a reunion there must be an intention of the parties to reunite in estate and interest. It would be a question of fact to be determined in each case upon the evidence relating tot he intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly be on the party who asserts the existence of particular state of things on the basis of which he claims to rely. Reunion under the Hindu law is a product of agreement, express or implied. It can be done not only express contract but also by agreement implied form the conduct of the parties. An agreement to reunite need not be in writing. Even though a partition has been effected by a registered deed or by a decree of court, the parties may reunite by oral agreement. But it may be noted that a minor is incompetent to contact and therefore an agreement to reunite cannot be made by or on behalf of a minor. In Mulla's Hindu Law, 12th Edn. page 517 the law with regard to a minor is summed in one single sentence thus:
'Since a minor is not competent to contract, it follows that an agreement to reunite cannot be made by or on behalf of a minor'.
Admittedly in the instant case, on the date of partition the other sons of the first defendant, namely, defendants 2 to 4, were minors. It may be that they continued to live together with the first defendant. But it is the case of the first defendant that as and when his sons became majors, he handed over the respective properties allotted to them. The plaintiff has not discharged the burden of proving that there was reunion after the partition in 1929. We are satisfied on the facts of this case that there was no reunion among the members of the family after the partition in 1929.
(8) We have next to consider whether the second defendant received his share of the properties when be became major. It is the case of the first defendant that in 1932, when the second defendant was married and became major, the properties allotted to him in the 1929 partition were handed over to him. Even the plaintiff's father, second defendant, supported the case of the first defendant tot his extent, namely, that he received his share of the properties after he became major and he was in exclusive possession and management of the same. Some documentary evidence in the form of account books Ex. B. 19 was adduced to prove that the properties were handed over to the second defendant in the year 1932. When this document was produced a controversy was raised about the genuineness of this document. This document is not signed by the second defendant. It does not even bear thumb impression, but only a keeral. This document is however attested by several persons, who have come as witnesses and deposed that the properties allotted to defendant 2 were handed over to him in the year 1932. Even assuming that this document cannot be relied upon, there is evidence which would go to prove that the first defendant must have handed over the properties to all his sons on their attaining majority.
D.W. 3, the village munsif of Papanadi, is an important witness in this case. He has deposed that the sons of the first defendant have got separate pattas and that they pay kist separately for their respective pattas. He has also given the patta numbers for the lands of the first defendant and his sons. There is sufficient evidence on the record to show that there was a division of the properties in 1929, that pattas stood in the separate names of the members of the family and that they were paying kist separately for the properties respectively allotted to them. The question to be considered is whether the second defendant was in exclusive possession and enjoyment of the properties allotted to him or whether the first defendant was in possession of those properties. The plaintiff has failed to prove that his father second defendant, was not in possession of the properties allotted to him in the partition. On the other hand, the second defendant in his written statement has stated that he has been in exclusive possession and management of the properties allotted to his share. Evidence has been adduced to show that after the properties were handed over to the second defendant in 1932, the plaintiff's maternal uncle was managing the properties for sometime, but he left the management later as there was an allegation that he misused the income there from. Even the suit was filed in the first instance by the plaintiff's maternal uncle but after some time the maternal uncle dropped out of the proceedings and the present next friend came on the scene and continued to prosecute the suit.
The plaintiff has not proved that the first defendant was in possession or management of his father's properties and he was utilising the income therefrom for purchasing several items of properties in the names of the other sons. In the absence of evidence it is not possible for us to come to the conclusion that the first defendant was in management of the properties allotted to the share of the second defendant. The conduct of the parties would show that after the partition the first defendant banded over the properties to his sons as per the allotment made in the partition deed, as and when they became majors. As far as the second defendant is concerned when he became major in 1932, not only did the first defendant give him the properties allotted to him in the partition, but also some more properties in the form of outstandings to the extent of Rs. 4000, though he was allotted outstandings for Rs. 1000 only in the partition. There is also some variation in the portion of the family house allotted to the second defendant. After the sons got possession of the respective properties allotted to them, they purchased several items of properties in their names. The first defendant was in possession and enjoyment of his properties and form the income thereof he also purchased properties in his name and he settled his properties on his daughter, the fifth defendant, as he was 'dissatisfied with his sons'
It is not possible for us to accept the case of the plaintiff that subsequent to the partition in 1929, the second defendant did not receive his share of the properties on becoming a major. The plaintiff also failed to prove that there was a reunion in the family and his father once again became a member of the joint family. The plaint cannot therefore claim any share in the properties purchased by defendants 1, 3 and 4 in the properties settled on the 5th defendant. The learned Subordinate Judge was therefore right in rejecting the plaintiff's claim to a share in those properties and in declaring that the plaintiff is only entitled to a two-third share in the A schedule properties and in schedule B-8 property in regard to which there is no dispute. The decree of the lower court is accordingly confirmed and the appeal is dismissed, but without costs in the circumstances of this case. The court fee payable on the appeal will be paid by appellant.
(9) Appeal dismissed.