PROJECT ASSIGNMENT: FAMILY LAW II

REOPENING AND REUNION OF PARTITION

(A STUDY THROUGH CASE LAWS)

SUBMITTED BY: AMIT AGRAWALID. NO.: BLIL 1147DATE OF SUBMISSION: 11th April, 2004.

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE.

TABLE OF CONTENTS

TABLE OF CASES.............................................................................................................3INTRODUCTION...............................................................................................................4RESEARCH METHODOLOGY........................................................................................5REOPENING OF PARTITION..........................................................................................6

MINOR COPARCENERS........................................................................................6FRAUD..........................................................................................................................8MISTAKE.....................................................................................................................9AFTER BORN SON................................................................................................11ADOPTION................................................................................................................13ABSENT AND DISQUALIFIED COPARCENRERS....................................14

REUNION.........................................................................................................................15NATURE OF EVIDENCE.....................................................................................15PARTITION AND PRESUMPTION THEREOF............................................17WHO MAY REUNITE............................................................................................18CONSTRUCTION OF REUNION AGREEMENT........................................19

CONCLUSION..................................................................................................................21BIBLIOGRAPHY..............................................................................................................23

TABLE OF CASES

1. A Venkappa Bhatta v. Gangamma AIR 1988 Ker 133.2. Anant Bhikappa v. Shankar Ramchandra 46 Bom. L. R. 1.3. Athilinga Goundar v. Ramaswami Goundar (1944) II MLJ

146.4. Balaji Ganoba v. Annapurnabai AIR 1952 Nag 2.5. Balasubramania Reddy v. Narayana Reddiar AIR 1965 Mad

409.6. Balbux Ladhuram v. Rukhmabai (1903) LR 30 IA 130.7. Bhagwan Dayal v. Reoti Devi AIR 1962 SC 287.8. Biyyala Chinna Narasamma v. Biyyala Venkata Narasi

Reddy AIR 1954 Mad 282.9. Debabrata Ghose v. Jnanendra AIR 1960 Cal 281.10. Ganeshi Lal v. Babu Lal 40 All 374.11. Ganpat v. Gopalrao 1899) ILR 23 Bom. 636.12. Hira Singh v. Mt. Mangalan AIR 1928 Lah 122.13. Jatti v. Banwari Lal (1923) LR 50 IA 192.14. Nanuram v. Radhabai AIR 1940 Nag 241.15. Parmanand L Bajaj v. Commissioner of Income Tax

135 ITR 673 (1982).16. Parshuram v. Hirabai AIR 1957 Bom 59.17. Ram Narain Chaudhary v. Pan Kuer (1934) LR 62 IA

16.18. Ramchandra Shrinivas v. Ramkrishna Krishnarao

MANU/MH/0125/1952.19. Ratnam Chettiar v. S M Kuppuswami Chettiar AIR

1976 SC 120. Sukhrani v. Hari Shanker AIR 1979 SC 1436.

INTRODUCTION

When and under what circumstances, questions of ownership among Hindus were first considered, we have no means to estimate. So far as there was any rudimentary conception of ownership in early times, it was found in the form of ownership of property being vested in the family itself, or to use a modern phrase- ownership was corporate.1 Corporate ownership denotes a peculiar kind of ownership where no living being is the sole owner but there are certain persons who are managers of the property.2 However if there is any member of the Hindu Joint Family who is hopelessly dissatisfied with the management of the joint estate, his only remedy remains in claiming for partition. This he can always do, as there is no compulsion upon the members of Hindu Family to live in common. Partition may be effected either amicably or through intervention of the court. After a change in status by partition, a member can no longer be deemed as agent or representative of the family. Partition once made can not ordinarily be reopened for Shastras say, “once is the partition of inheritance made, once is a damsel given in marriage, and once does a man say, I give; these three are by good men done once and for all”3.

However there are certain well-recognised exception to this principle. One of such is mentioned in Yajnavalka. As per Yajnavalka, “The settled rule is that co-heirs should again divide on equal terms that wealth which being concealed by one co-heir from another is recovered after partition.”4 A few of other such exceptions are of where by mistake stranger property was included while partitioning and the same was later lost; where partition was done by fraud.

If two or more coparceners after partition agree to annul the partition and to live together jointly as before and make a junction of their property with affection, with the declaration

1 W Markby, Hindu and Mohamedan Law, (Delhi: Inter-India Publications, 1977), p. 342 p.35.3 Raghavachari, et.al., Hindu Law: Principles and Precedents (Madras: Madras Law Journal, 7th edition, 1980), p.349.4 A Kuppuswami, (ed.), Mayne’s Treatise on Hindu Law & Usage, (New Delhi: Bharat Law House, 13th edition, 1995), p.753.

that mine is thine and thine is mine, they are said to be reunited.5 However there are certain complicated questions relating to reunion like who may reunite, how to reunite..etc .

In the next few pages the researcher has made an attempt to explore various circumstances under which a partition can be reopened and to answer various questions relating to reunion.

5 G Sarkar, et.al., A Treatise on Hindu Law, (Calcutta: Eastern Law House, 5th edition, 1924 ), p. 407.

RESEARCH METHODOLOGY

Aims and objectives:

Present paper attempts to sketch the various circumstances under which a partition can be reopened and under what circumstances reunion is possible.

Scope and Limitations:

Scope of the present paper is to conceptualise the cases relating to reopening and reunion of partition. During the course of research paper, as per the permission of course teacher only Mitakshara School has been dealt with. While writing the paper the biggest hurdle that the researcher had to face was of unavailability of views of scholars in the form of articles.

Research Questions:

I have attempted to answer the following questions in the present paper:

What are the different circumstances under which a partition can be reopened?

What are the requisites for reunion?

Chapterisation:

First chapter has dealt with the various instances where a partition can be reopened.Second chapter deals with various requirements for reunion.

Style of Writing:

This paper has largely descriptive style of writing.

Mode of Citation:

A uniform mode of citation is followed throughout the project.Books in the present paper have been cited in this manner:Name of the author (or Editor), Title of the Book, (Place of Publication: Publishing Co., Edition (if applicable), Year), Vol. No.(if applicable), Page No..

Sources of Data:

Primary sources in the form of law reports and secondary sources in the form of books have been used to answer the various research questions.

REOPENING OF PARTITION MINOR COPARCENERS

A minor after becoming of age can reopen the partition if he can prove that the partition was not for his benefit or it was unfair with regard to him. This can best be explained with the help of the case of Ratnam Chettiar v. S M Kuppuswami Chettiar 6. In this case two brothers made a partition and at that time plaintiffs were minors. Under the partition deed both immovable and movable property were divided with the help of family auditor of one brother.

S1 (SMK) S2 (SMR) Def. 1 Def. 5

S3—Plaintiffs—S4 S5 Def.3 Plaintiffs here alleged that the partition was secured by practising fraud and undue influence and by suppressing large assets belonging to the family which were taken by their uncle (Def.1) by taking advantage of the weakness of the plaintiffs’ father who was a person of weak intellect.As per trial court, so far as the partition of the moveable properties was concerned which was done by a separate document and was severable from the partition of the moveable properties, was neither unjust nor unfair so as to entitle the minors to reopen the partition after a long period. The same was confirmed by the High Court. The High Court in the present case made a slight variation in the decree issued by the trial court by setting aside the directions of the trial court for the appointment of a Commissioner and by quantifying the value of the disparity in the share of the plaintiffs, by itself. The Supreme Court, here as regards immovable property rejected to reopen the partition even though the properties were not actually valued according to the market rate and that a notional valuation had been given in the partition deed. Supreme Court took this view due to its policy of not interfering with 6 AIR 1976 SC 1.

concurring findings of two courts below.7 With regard to partition of moveable property the Hon’ble Supreme Court after making a detailed study also reached the same conclusion that it was an unequal partition and the silence of the father (Def. 5) or even his acquiescence in allowing his elder brother to swallow the amount was not a prudent act and it had caused serious detriment to the interests of the minors which he had to protect, because the minors at that time were members of the Hindu undivided family.8

The Supreme Court laid the following propositions:9 A partition effected among the members of HUF with

consent cannot be reopened, unless it is shown that consent is obtained by fraud, coercion, misrepresentation or undue influence.

A strict proof of facts is required to reopen the partition because an act inter vivos cannot be lightly set aside.

If the partition is done in good faith and in bona fide manner keeping into account the interests of the minors, the same will be binding upon them.

If the partition effected between the members of the Hindu undivided family, which consists of minors, is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can be reopened irrespective of the length of time when the partition took place.

Where there is a partition of immovable and moveable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.

A similar problem came up before the Supreme Court in the case of Sukhrani v. Hari Shanker10. Here the plaintiff was a minor at the time of institution of suit for partition. In the present case 7 Ibid., para10.8 Ibid., para 13.9 Ibid., para 19.10 AIR 1979 SC 1436.

there were originally three brothers who carried out the bidi manufacturing business. After the death of one of them (Pusau), the same was carried out by remaining two brothers.

Harishankar

(Pusau) Mannulal Rajaram Babulal Sunderlal Plaintiff Son

However in 1948 Mannulal represented to his brother that in order to avoid tax there should be nominal partition between them and upon this the joint family business was converted to a partnership. Here Mannulal’s share was 10 Ans. 8 ps. And that of Rajaram was 5 Ans. 4 ps. Later Babulal and Sunderlal were also shown as partners. Even the houses belonging to the family were divided where Mannulal took 2/3rd share and Rajaram took the rest. On these allegations the plaintiff filed the suit. It was argued on behalf of defendant-appellant that the partition could not be reopened since there was no fraud or misrepresentation and since unequal shares had been voluntarily accepted, it was binding on the parties. It was also pointed out that the plaintiff and his brothers were effectively represented by their father therefore partition cannot be opened merely on the ground of inequality of shares.11

However the Supreme Court referring to the case of Ratnam Chettiar v. S M Kuppuswami Chettiar12 held that even though there was no fraud or misrepresentation or undue influence, a partition could be reopened at the instance of minor coparcener despite the fact that his branch was represented by his father at the partition, if the partition was unfair or prejudicial to the interest of minor.

FRAUDA partition can be reopened in the case of fraud in division of

11 Ibid., para 312 Supra n. 6.

property. An instance of this can be given through the case of A Venkappa Bhatta v. Gangamma13. In the present case first defendant was the Karta of the family. On the death of her husband plaintiff claimed partition of 1/4th share of the estate and the share of profits. She here disputed the partition on which her signatures were taken persuading her to think that the partition deed was a document to avoid tax.

Venkateshwara Bhatta

(Sankanna)=W Def 1 Def 2 H = Def 15 (Plaintiff) Karta D1 D2

Here trial court found that in the partition deed less than ¼ th

share was given to the widow and also there was no separate provision for ‘viniyoga’. It found that plaintiff, an old lady, was entirely dependant upon first defendant. Hence it decreed the suit in favour of plaintiff. The Hon’ble high court closely examined the partition deed. It found that it was it was a lengthy and complex document, which could not have been understood by plaintiff. Among infirmities it pointed out some of these were like; partition deed didn’t say which of the parties are entitled to which of the properties. It was also highly unjust and inequitable. Here she was entitled to ¼th of 25 candies, 280 murahs of paddy and 5490 coconuts, but she was given only two candies. Reading the whole document together and taking in to account other circumstances the Hon’ble High Court said that the lady was very much under the influence of the first defendant and she had no sons or support to look to. On these grounds it confirmed to decision of the trial court.

13 AIR 1988 Ker 133.

MISTAKE

In the case of Balaji Ganoba v. Annapurnabai14 it was held that partition could be reopened if a property which doesn’t belong to the joint family is wrongly included and it subsequently passes out of the possession of sharer. Here the sharer would be entitled to compensation out of the shares of other parties and the partition if necessary may be reopened for readjustment of shares. In the present case the branch of Ganoba was separate from that of Dada.

Sakhram

Dada Ganoba Parwatibai = Harba = Ganagbai Balaji Tomaji Tatyaji Sm. Tai Vithal (Plaintiffs) Def. Valmik

On the death of Vithal, his mother had entered into possession of properties and remained until her death. On her death Parwatibai took possession of all property. Then plaintiffs and defendants who are brothers instituted a suit against Parwatibai and her daughter for possession of property as next reversionary. On the death of Sm. Tai, Valmik (then minor) was brought on record. In that suit a compromise decree was passed. Under that compromise plaintiffs got some property on which they effected partition. Later on Valmik filed another suit and claimed all the property left by Gangabai and got the decree in his favour. As a consequence of it plaintiffs lost most of the property allotted on partition. Plaintiffs therefore brought a suit for repartition.

14 AIR 1952 Nag 2.

Defendant here relied upon the rule that partition once done can’t be reopened except on the ground of fraud or mistake in including a property which didn’t belong to the joint family. But in the view of the Hon’ble High Court if a property has been wrongly included and it subsequently passes out of the possession of a sharer, he is entitled to compensation out of the shares of the other parties.15 Here the Court quoted the opinion expressed by Walsh J in Ganeshi Lal v. Babu Lal16 which is “the right is based simply upon this principle, that where parties arrive at a partition either by agreement or by a decree, there is an implied and mutual right of indemnity or contribution in respect of any paramount claim by a third parties which throws a burden of loss not contemplated in the partition proceedings-unfairly upon one of the parties. If the original decision has been arrived at by a common mistake, which, of course, in the case of decree is adopted by the Court in making the decree the mistake can be set right pro tanto.”17

Another case in this regard is that of Debabrata Ghose v. Jnanendra18. In this case plaintiff sought to reopen a previous partition. To appreciate the facts of the case it is first necessary to have a look at the following genealogical tree.

Dwarkanath

(Rajendra) Jogendra (Sidheshwar)=Padma Bhupendra Jnanendra (Nagendra)= Labangalata (Def.) (Def.) Debendra-Plaintiff

Dwarkanath Ghose died in 1892 after having published a will. By his will he created an absolute debutter in respect of two of his properties and bequeath the rest to his two sons Rajendra and 15 Ibid. para 4.16 40 All 374 cited from, Supra, n.14.17 Ibid. Para 5.18 AIR 1960 Cal 281.

Jogendra in equal share. Rajendra predeceased his father. He had also published a will by which he appointed his brother Jogendra as the executor and bequeathed his properties to his four sons in equal shares subject to the payment of an excess amount to his youngest son Nagendra. Later, Bhupendra, Jnanendra and Nagendra the three sons of Rajendra then alive instituted a suit in this Court against Jogendra and others for construction of the wills of and for partition. This suit ended in a consent decree. By the consent decree the parties had the entire estate of Dwarkanath including the two premises which Dwarkanath had created debutter in respect of. By this decree, all the properties belonging to the estate of Dwarkanath were divided into two parts. One part which included one of the debutter premises was allotted to Jogendra and the other part which included the other debutter premise was allotted to the three sons of Rajendra jointly. The three sons of Rajendra subsequently partitioned among themselves the joint property. In this partition Nagendra got the property in respect of which the debutter was created. Thereafter, the property allotted to Bhupendra had been sold in execution of a decree passed against him.

Later the plaintiff successfully instituted a suit to establish the title of deity in the premises allotted to Nagendra and Jogendra which were created debutter by Dwarkanath but were secularised by the consent decree. The present suit was filed by the plaintiff for partition of only such of the properties belonging to the parties as are still within the family.

However Jnanendra impleaded that ever since the award partition, Jnanendra, Bhupendra and Nogendra entered into possession of the properties allotted to each and ever since have been in possession of the properties so allotted as their own exclusively, openly and adversely to each other.19

The Hon’ble High Court here held that the subject matter of earlier partition by mistake included those properties also, which couldn’t have been the subject matter of the partition. The position therefore, in the words of P C Mallick J. was of where in the partition al the joint family property were allotted to

19 Ibid., para 3.

Jnanendra and Bhupendra to the total exclusion of Nagendra.20

He said, “ the partition which included outside property is not invalid or a nullity but is merely an inequitable partition and the court of Equity has to intervene not because there was no partition effected which is valid in law but because the partition was inequitable and imposed hardship on one of the parties which should be corrected if possible.”21 However on the facts of the case, court did not order for reopening of the partition.22

AFTER BORN SONIn the case where a son is begotten as well as born after partition is entitled to reopen the partition where the father has not reserved a share to himself on a partition with his sons.23 On the contrary where father has reserved a share to himself, a son who is begotten as well as born after the partition is not entitled to claim to reopen the partition.24 This can be enunciated with the help of case of Athilinga Goundar v. Ramaswami Goundar25. In this case a Hindu with two wives had one son by his senior wife and two sons by his junior wife. All the sons at the time of partition were minors. By the partition one share was allotted to senior wife with her son and two shares were allotted to junior wife with her two sons. Father retained a few items for his maintenance without having power of alienation. After his death the property in his hands were to be divided equally among three sons. Contemplating the situation of an after-born son the partition deed contained a clause saying, “male children who might hereafter born out of your loins (the two wives) should be provided for out of the shares allotted to the respective families”. Here ‘family’ had reference to the two branches represented by the two wives. 20 Ibid., para 7.21 Ibid., para 8.22 In the instant case six years after partition and allotment, Nagendra had executed a mortgage of premises allotted. In enforcement of this mortgage, the property was sold. Long after this, the suit was instituted by the deity claiming the superior title which was upheld by the Court. On the face of these facts it cannot be held that Nagendra and/or his heir has suffered loss by reason of the displacement of title by the deity in respect of the property allotted to Nagendra. Cited from, Supra n.18, para 13. 23 S A Desai (ed.), Mulla- Principles of Hindu Law, (Butterworths India: new Delhi, 17th edition, 2000), p. 503.24 Ibid., p. 502.25 (1944) II MLJ 146.

A son who was born to the wife nearly a year after the partition claimed reopening of the partition. The sons of junior wife resisted the claim by saying that a share had already been allotted to the father and the after born son was entitled to that share only. The contention of after born son was that he was entitled to reopen the partition as no share had been set apart for the father at the partition. The court here distinguished the present case from the case of Ganpat v. Gopalrao26 where the father had reserved a share himself at the partition. It therefore allowed the reopening of the partition. It held that the provision for giving a share to the after-born son by his uterine brother out of the property allotted to him couldn’t qualify the right of the after-born son to re-open the partition and claim a share in the entire property. Son begotten at the time of partition but born after partition is entitled to a share as if he was in existence at the time of partition. If no share is reserved for him at the time of partition, he is entitled to have the partition reopened and share allotted to him.27

ADOPTION

A person validly adopted to a deceased coparcenor by his widow after the partition may also reopen a partition. This may be explained with the help of the case of Ramchandra Shrinivas v. Ramkrishna Krishnarao28. In this case one Shrinivas had two sons, Ramchandra and Krishnaji. Krishnaji died in 1930. Shrinivas and Ramchandra effected a partition between 26 (1899) ILR 23 Bom 636. In this case one Venkatrav who had three sons effected partition. He gave 1/3rd share to his eldest son and retained 2/3rd in his own possession for the benefits of his two other minor sons. Later on he had another son born to him and that son instituted a suit for fresh partition ignoring the earlier one. The learned judge held that plaintiff was not entitled to have a fresh partition as though the eldest son received one-third share instead of one-fourth to which alone he is entitled. Here the effect of partition was to separate the eldest son from the family. It was held that a son-born after partition has no claim on the wealth of the separated brother and that he has preferential claim over the wealth of his parents only. See, Ibid., p. 148.27 Supra n. 24.28 MANU/MH/0125/1952.

themselves on 9-12-1932. This was followed by a registered deed of partition executed on 16-12-1932. On this day itself Sundrabai adopted Ramkrishna. Shrinivas then alienated the properties which had fallen to his share by executing two deeds of gift in favour of Ramchandra’s sons Annaji and Dattatraya, and a will in favour of Ramchandra’s daughter Renukabai. Shrinivas died, in 1934 and then the adopted son brought the present suit in which he claimed to recover his half share in the properties of the family.

He argued that the partition effected by Shrinivas and Ramchandra between themselves was intendedsolely to defeat his claims as an adopted son and that in fact the said partition had taken place not on 9th December but after his adoption on 16-12 1932. According to the plaintiff the family of the parties continued to be joint on the date of his suit and he wanted his half share in the properties on that footing.The defendants claimed that the adopted son was not entitled to claim any share in the proerty because the coparcenary between Shrinivas and Ramchandra had been terminated by a prior partition between them.

The Court here before giving any decision firstly referred to a case of Anant Bhikappa v. Shankar Ramchandra29. In this case a person Anant, was adopted in 1930, who purported to enter the coparcenary of which Keshav was the last survivor. Keshav had died in 1917 and the property vesting in him during his lifetime had in fact devolved by succession on Shankar. Anant by his adoption claimed to be the adoptive brother of Keshav and thereby demanded that the properties, which Shankar had obtained by succession on Keshav’a death, should be returned to him. This claim made by the plaintiff was decreed by their Lordships of the Privy Council on the reasoning that by the death of the sole surviving coparcener the termination of coparcenary is not effective or complete so long as there is any potential mother in the joint family. Therefore it said that on the death of Keshav in 1917, though seemingly coparcenory had been terminated however it was revived by the adoption and the adopted son entered this coparcenary by reason of his adoption.

29 46 Bom. L. R. 1 cited from, Ibid., para 10.

Keeping this in mind the Hon’ble court held that “the rights of an adopted son are not affected by reason of the fact that the joint status of the family which he seeks to enter by his adoption has been terminated either by a prior partition between the surviving coparceners or by the death of the sole surviving coparcener. In either case the adopted son is entitled to enter his adoptive family on the basis that the family is a joint and undivided Hindu family and his rights in the property of the family must be decided on that basis.”30

The court here importantly said that the case of adopted son must be included in the list of the exception to the rule that partition can be made only once. Gajendragadkar, J in the present case equated the position of an adopted son to that of a son who was in his mother’s womb at the time of the partition, but who is born thereafter.

On the basis of above-mentioned reasoning it was held that the coparcenary which had been determined by the partition between Shrinivas and Ramchandra was revived by the adoption of the plaintiff and that the plaintiff’s claim should be treated as a claim for reopening a partition which had been made without recognising his share in the family properties. On this basis the plaintiff was held to be entitled to claim one-half share in the properties in suit.

ABSENT AND DISQUALIFIED COPARCENRERS

Though partition cannot be delayed by the absence of coparcener, however his share can’t be ignored because of the mere fact that he was unable to claim for himself at the time of partition. If at the time of partition no share is allotted to him or an unequal, unfair share is allotted to him, on his return he is entitled to reopen the whole partition.31

Under Hindu law a person suffering from a disability that disentitles him to inherit cannot claim a share on partition but is entitled to maintenance. However if the defect is removed by medicaments at a period subsequent to partition, the right of 30 Supra, n.28, para 10.31 Supra, n.3, p.333.

participation takes effect by analogy to the case of a son born after separation.32

REUNIONNATURE OF EVIDENCE

It was held in the case of Bhagwan Dayal v. Reoti Devi33 that to constitute a reunion there must be an intention of the parties to reunite in estate and interest. It was held that it is implicit in the concept of reunion that there shall be an agreement between the parties to reunite in estate with intention to revert to their former status of members of a joint Hindu family. It was also held that such an agreement need not be express, but must be clearly implied from the conduct of the parties. In the present case plaintiff argued that Lachman Prasad, his sons and descendants constituted a joint family.

Pt. Lachman Prasad

Kashi Ram Jawala Prasad Mst Batashi Raghubar Dayal = Reoti Devi Banwari Lal Bhagwan Dayal Ram Lal Def. Plaintiff

32 Ibid.,, pp.333-334.

33 AIR 1962 SC 287.

In the present case Jwala Prasad died in 1908; Kashi Ram, in 1924; Ram Lal, in 1914; Banwari Lal, in 1914; and Raghubar Dayal, in 1933. Plaintiff here asserted that there was never a partition in the family and that that there was never a partition in the family, and that Kashi Ram, Raghubar Dayal and Bhagwan Dayal, jointly started a business at Agra. During the course of business they jointly acquired some properties. He said that after the death of Kashi Ram, the business and the properties acquired during his life time devolved upon the plaintiff and Raghubar by survivorship, and that after the death of Raghubar the said properties, along with the properties acquired during the lifetime of Raghubar passed on by survivorship exclusively to the plaintiff. This is contested by widow of Raghubir. Plaintiff had also put forth an alternative argument on the even on the assumption that there was a partition in the family of Lachhman Prasad, a reunion should be inferred from the conduct of the said three members during the lifetime of Kashi Ram and thereafter. Court here on a detailed examination of fact found that Kashi Ram had left the ancestral home long ago and joined military and started business in Agra with is own savings after quitting the job. Court also observed that none of the documents executed during the lifetime of Kashi Ram denote the properties as to be joint. Here it was also found that Ram Lal and Banwari Lal lived separate from plaintiff. Taking into consideration all the facts court held that the family of Lachman Prasad was divided. The next question was whether there was a reunion between Kashi Ram, Rahubir Dayal and Bhagwan Dayal. Plaintiff here argued that since the start of the business in Agra, it has been approximately 50 years and the consistent conduct of the parties during that period establishes that there has been a reunion between them. Subbarao J. here, held that conduct of the parties must show an intention to revert back to the status of joint family. He also held that in such a case burden is heavy on the parties seeking to establish that there was reunion. Therefore ambiguous pieces of evidence can’t sustain plea of reunion. On the facts of the case the court held that the plaintiff failed to establish reunion. Here in none of the document there is mention of the property being joint. On the contrary there existed documents, which said that there is no co-sharer or co-partner in the property. All these facts were held to be decisive

of the fact that Kashi Ram was not a member of joint family.

Court here also held that coparcenary is a creature of Hindu law and the same cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. Therefore members of different branches of joint family cannot form a subordinate joint family. Another case on this issue is that of Parshuram v. Hirabai34. In the present case a Hindu family consisted of one Rajaram and Hirabai and their six sons. One of the sons was Parshuram who is plaintiff in the present case. Before the present suit the plaintiff has filed another suit to recover by partition, possession of his 1/8th share. Lower court in that case had granted a decree in favour of the plaintiff. This was taken to appeal. This appeal was later withdrawn. However during the pendency of the appeal Rajaram had died. Now plaintiff again went to court seeking to amend his decree so as to increase his share from 1/8th to 1/7th. One of the questions that court here had to deal with was whether the separation effected by decree in the earlier suit, was a separation of plaintiff from defendants35 or there was separation of all the members of the joint family from each other. For this examined the decree. The decree declared the shares of the defendants and it enabled each of the defendants to get his share separated on payment of necessary stamp duty. It also contained the provisions for the marriage of daughters of one of the defendants. Defendants also argued that notwithstanding the decree for partition, which brought about severance in the joint status, the defendants agreed to remain united. This was tried to be proved by the will document of Hirabai where it was written that income of defendant No.1 was used for all the defendants and he was the manager of the family. Also that the income of family lands was used for all defendants.The Hon’ble Court then held that in the case where partition was brought about by the decree, one would require strong evidence to show that what was brought about by the decree was displaced by some specific agreement between the members of family.36 34 AIR 1957 Bom 59.35 Here defendants were Rajaram, Hirabai and their rest of the five sons.36 Supra, n. 34, para 9.

PARTITION AND PRESUMPTION THEREOF

It was held in the case of Jatti v. Banwari Lal 37 that when one member of a joint family separates there is no presumption that remaining members remained united. In the present case there were four brothers Ishar Das, Harbhagwan, Rup Chand and Daya Ram, who lived as a Hindu joint family. In 1876 Ishar Das got separated. Thereafter business was carried out by the three remaining brothers. In 1905 Rup Chand had died and in the 1914 his widow raised the present suit against the remaining brothers claiming the 1/3rd of the partnership assets. Defendants put forth the defence that though Ishar Das had separated in 1876, other brothers remained joint and that in consequence of the death of Rup Chand, the plaintiff had only the right of maintenance. Court here held that there is no presumption, when one-coparcener separates from others, that the remainings remain united. However Court decided in favour of defendants on the basis of other technical issues.

Another case on this point is that of Biyyala Chinna Narasamma v. Biyyala Venkata Narasi Reddy38. In this case there were three brothers namely, Venkatarasa (plaintiff), Hanumantha, and Swami Reddy. Hanumantha Reddy had entered into partnership with third parties for trade. After his death Venkatarasa filed suits for dissolution of partnerships, pleading that he and his brother Hanumantha constituted a joint family at the time of Hanumantha’s death. During the course of the arguments it was found that plaintiff’s brother Swami Reddy had separated from them many a years ago through a reference to the arbitrators. Therefore the question before the court to be decided was whether plaintiff and Hanumantha constituted joint family up to the time of latter’s death even after the partition. Here even after Swami Reddy’s separation, plaintiff continued to live with his brother (the deceased) in the family house where he died. This was shown as to further the argument that the deceased and plaintiff were joint at the time of death of Hanumantha’s death. Upon this the court emphatically stated 37 (1923) LR 50 IA 192.38 AIR 1954 Mad 282.

that there is nothing inconsistent between division in status and a continuation of living together in the family house. Here court also considered whether living together even after partition amounts to reunion or not. In the view of the court in a case where intention to separate has been expressed through a document as it was in the present case, it is reasonable to expect that the intention to reunite will also be expressed through document. However the court in the present case refused to decide finally on the issue of plaintiff being joint with the deceased and disposed off the matter on other grounds.

WHO MAY REUNITE

In the case of Balbux Ladhuram v. Rukhmabai39 it was held that a reunion could take place only between the parties who were parties to the original partition. In the present case there were three brothers namely Girdhari Lal, Kunyaram and Ladhuram. At about 1869 Kunyaram separated from the family by taking his share. Now the ancestral shop was run by Girdharilal. At about the time of partition Ladhuram had sent his wife and son to the other place and he himself went to live with them after sometime without drawing any share from the ancestral shop. Now the ancestral shop was run by Girdharilal. After the death of Ladhuram, Girdharilal called for son and widow of Ladhuram. After Girdharilal’s death the business was run by the widows of Girdharilal and Ladhuram. Now Balbux after attaining the age of majority claimed the entire property on the account of being the only survivor. Here two-fold argument was taken by the plaintiffs. Firstly there was no partition between Ladhuram and Girdharilal. Alternatively it was argued that there was a reunion between the plaintiff’s mother and plaintiff and Girdharilal years before the latter’s death. Upon this the court held that a reunion could take place only between the persons who were parties to the original partition. Court also observed that agreement to reunion couldn’t have been made by or on behalf of the minor-plaintiff.

Similarly in the case of Balasubramania Reddy v. Narayana Reddiar40 it was held that reunion is product of agreement and

39 (1903) LR 30 IA 130.40 AIR 1965 Mad 409.

minor is incompetent to contract therefore an agreement can’t agree to reunite.41

However it must be remembered that as it is open to father or mother as his guardian to effect a separation on behalf of the minor coparcener, it would be equally open to the father or mother as his guardian to agree to a reunion on behalf of the minor.

In the case of Nanuram v. Radhabai42 it was held that it is only males in a Hindu family once separated that can unite and only within limited range. In this case there was a man namely, Kisan shinde who had two wives and through each wife he had a son. Here partition took place in the family at instance of sons. Sons took their one-fifth share and enjoyed it separately. On the other hand Kisan had disposed off properties before his death in addition to what was his own share. Plaintiffs contended that he had no authority to do so as they were only tenant in common. Defendants on the other hand denied any partition. They also pleaded that assuming partition has been set out, nevertheless it was two sons who got separated from the family and the others remained joint. However the court here observed that the partition was not only effected between the sons but also between the mothers. Alternatively it was argued that there had been a reunion between Kisan and his wives. Upon this the court held that it is only males in a Hindu family once separated that can unite and only within limited range. A wife and husband once separated can not reunite. On this basis of reasoning the court decided the case.

Interestingly in the case of Hira Singh v. Mt. Mangalan43 where reunion was never argued the court observed that it is the elementary principle of Hindu Law of Mitakshara School that a member once separated can unite only with his father, brother or paternal uncle but not with any other relation.

41 Supra, n.4, p.756.42 AIR 1940 Nag 241.43 AIR 1928 Lah 122.

In the case of Ram Narain Chaudhary v. Pan Kuer44 the question before the court was whether Ram Kishore and Ram Narain who were distant cousins could reunite. The court answered the question in negative. In the present case the court recited the paras 2 and 3 of chapter 2, section 9 in Mitakshara which read as follows “2. effects which have been divided and which are again mixed together are termed reunited. He to whom such appertain is reunited parcener. 3. That cannot take place with any person indifferently, but only with a father, a brother or a paternal uncle, as Brihspati declares, ‘He who being once separated dwells again through affection with his father, brother or paternal uncle is termed reunited.’ ”45

CONSTRUCTION OF REUNION AGREEMENT

An interesting question came before the Karnataka High Court with regard to reunion in the case of Parmanand L Bajaj v. Commissioner of Income Tax46 was that whether a clause in reunion agreement that parties need not put all the properties acquired on earlier partition with the property of reunited family invalidates reunion. In the present case Parmanad L Bajaj was kartha of HUF prior to 1956 which consisted of Himself, his wife, three sons and two daughters. During the period of 1956 to 1963 all the sons got separated by making declarations before Magistrate. However in 1971 father and three sons entered into reunion agreement that contained a controversial clause, which read as follows:“(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 common hotchpot of the HUF which has come into existence by virtue of this agreement.”Within the three days of the agreement the father threw properties of smaller HUF into the larger HUF. Now as per Tribunal 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. The High Court here before reaching to any conclusion read the 44 (1934) LR 62 IA 16.45 Ibid., p.20.46 135 ITR 673 (1982).

reunion agreement document and other circumstances as a whole and observed the following47:(1) Father and the three sons formed an HUF earlier. (2) There was a partition between them. (3) Reunion between father and three sons is permissible under Hindu law. (4) The fact of reunion is evidenced by a written document. (5) Act of Parmanada Bajaj (father) by putting his property in the common pool is evidence of subsequent conduct of at least one of the coparceners. (6) There is no condition that the property thrown into hotchpot after the date reunion shall not be available for common enjoyment. With regard to clause (3) the court observed that it is not destructive of reunion, as according to the clause every reuniting member can put his property into the joint family properties.

Therefore the court held that by reunion was established in the present case but clause (3) being repugnant to reunion is invalid not vice-versa.

47 Ibid., p.687.

CONCLUSION

Conclusions of the study may thus be summarised as below:

Reopening of Partition:

If a partition is unfair and detrimental to the interests of minors the same can later be reopened.

A partition can be reopened at the instance of minor if the partition was unfair or prejudicial to the interest of minor even where there was no fraud or misrepresentation or undue influence and despite the fact that his branch was represented by his father at the partition.

A partition can be reopened in the case of fraud in division of property.

Where at the time of partition stranger property was included by mistake and the same is later displaced by the claim of better-title holder, partition can be reopened.

A son begotten and born after partition can reopen the partition where the father has not reserved a share to himself on a partition with his sons.

Where the father has reserved a share to himself, a son who begotten and born after the partition is not entitled to reopen the partition.

A person validly adopted to a deceased coparcener by his widow after the partition may also reopen a partition.

Partition can be reopened by the absentee coparcener on return for whom the share was not reserved. Partition can also be reopened by the disqualified coparcener whose disqualification has been removed.

Reunion:

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 reunion that there shall be an agreement between the parties to reunite in estate with intention to revert to their former status of members of a joint Hindu family.

Members of different branches of joint family cannot form a subordinate joint family.

Where partition is effected by decree, one needs strong evidence to show that members of the family reunited.

When one member of a joint family separates there is no presumption that remaining members remained united. An agreement to remain united or to reunite must be proved like any other fact.

Where intention to separate has been expressed through a document, intention to reunite should also be expressed through a document.

Reunion can take place only between the parties who are party to the original partition.

An agreement of reunion cannot be made by or on behalf of minor.

Only males in a Hindu family once separated can unite. Under Mitakshara law a member once separated can unite

only with his father, brother or paternal uncle but not with any other relation.

A reunion agreement must be read together with other facts as a whole to establish reunion.

BIBLIOGRAPHYBOOKS

A Kuppuswami, (ed.), Mayne’s Treatise on Hindu Law & Usage, (New Delhi: Bharat Law House, 13th edition, 1995).

G Sarkar, et.al., A Treatise on Hindu Law, (Calcutta: Eastern Law House, 5th edition, 1924 ).

Raghavachari, et.al., Hindu Law: Principles and Precedents (Madras: Madras Law Journal, 7th edition, 1980).

S A Desai (ed.), Mulla- Principles of Hindu Law, (Butterworths India: new Delhi, 17th edition, 2000).

W Markby, Hindu and Mohamedan Law, (Delhi: Inter-India Publications, 1977).