Decided on March 05,1953



Mack, J. - (1.) This batch of appeals arise out of a remand by the learned Subordinate Judge of Kurnool of two suits filed by the plaintiff one Venkatanarasa Reddi for dissolution of two partnerships entered into by his deceased younger brother, Hanumantha Reddi who died in February 1947. Hanumantha Reddi who is said to have been educated entered into partnerships with third parties to trade in timber and bamboos. Alleging that he and his younger brother constituted a Joint family at the time of the latter's death, Venkata-narasa Reddi filed these two suits, O. S. Nos. 130 of 1947 and 131 of 1947 in which he impleaded the partners of the businesses and Hanumantha Reddi's widow. Narasanima as defendants. The District Munsif dismissed the two suits holding that Venkatanarasa Reddi and Hanumantha Reddi were divided in status from 1938 and that the suits were not maintainable. In appeal the learned Subordinate Judge held that Venkatanarasa Reddi and Hanumantha Reddi continued to be joint and that therefore Venkatanarasa Reddi was entitled to sue for dissolution of partnerships and for accounts, if it was found under issue No. 3. That Hanumantha Reddi had invested family funds in both the suit partnerships. He also found that the widow, Narasamma was entitled to his half share in all the family property including the suit partnership and that Venkatanarasa Reddi was entitled to the other half. It was disclosed in the course of a long argument that Venkatanarasa Reddi Had filed a partition suit O. S. No. 45 of 1948 against Narasamma which when these appeals were admitted was stayed. It is regrettable that all the suits were not given a. simultaneous disposal.
(2.) Two of these appeals, C. M. A. Nos. 604 and 605 of 1949 have been filed by the widow, Narasamma and the other two appeals, C. M. A. Nos. 96 and 97 of 1950 by the partners in the two businesses. The main issue argued before me elaborately by Mr. T. M. Krisbnaswami Iyer for the appellant and Mr. Thyagarajan for the plaintiff-respondent, Venkatanarasa Reddi is whetner these two brothers were divided in status or constituted an undivided coparcenary up to the time of Hanumantha Reddi's death. They had a third brother one Swami Reddi who admittedly separated from them many years ago end went to the house of his wife's brother from whom he got substantial property. He has been examined as D. w. 1 and he supports the plaintiff's case that he and Hanumantha Reddi continued undivided all through. The main document in the case is Ex. D. 1 dated 29-8-1938 which is really a reference to arbitration signed by all the three brothers to five named mediators. This was admittedly some years after Swami Reddi went out of the family. It contains the following recitals: "Previously we became divided but due to some mistake the Pharikat (Partition deed) was not executed all this while. As individual 2 (Swami Reddi) is now having misgivings and as there is no partition deed the three have together agreed to abide by the mediation of the above mentioned respectable persons.....if any of us three were to fail to so abide by the decision of the above mediators and reject the same that very person shall bear the entire expenses for the partition deeds." It is common ground that the arbitrators as such did not function at all, and that Hanumantha Reddi continued to live with his brother in the family house where he died. There was evidence to show that Hanumantha Reddi's wife Narasamma had been cooking separately in the family house for a number of years. Narasamma is said to be colluding with Namalayya who is one of the partners of the two businesses. Since Hanumantha Reddi's death Venkatanarasa Reddi has been admittedly in enjoyment of the family land. It, also stated that since Hanumantha Reddi's death the two timber businesses have been con tinued as before, but with Narasamma taking the place of her deceased husband Hanumantha Reddi. According to Karnam Subbarayudu P. W. 4 the writer of Ex. D. 1 it was necessitated by a dispute raised by Swami Reddi long after he separated but as the previous document was discovered no award was given by the panchayatdars. In this P. W. 4 is corroborated by one of the mediators referred to in Ex. D. 1 (D. W. 2). That previous document has not been filed. P. W. 4 was prepared to swear that at no time was there any intention as between Hanumantha Reddi and Venkatanarasa Reddi to separate. According to him Hanumantha Reddi was the manager of the joint family who paid all lists for the family lands and advanced monies out of the joint family funds for the suit partnerships.
(3.) Two views were taken by the Courts below, the learned District' Munsif preferring to infer separation in status from the recitals in Ex. D. 1 while the learned Subordinate Judge attached greater weight to the actual evidence and admissions made by both sides. There is, however, nothing inconsistent between division in status and a continuation of living together in the family house in common enjoyment of the family lands which have not been divided by metes and bounds. Mr. Thyagarajan has urged that Ex. D. 1 merely shows a partition between Swami Reddi on the one hand and Venkatanarasa Reddi and Hanumantha Reddi who continued joint on the other. I find myself unable to agree in view of the recitals in Ex. D. 1 extracted supra. It is reasonable to expect that if this was the intention, it would have been made more explicit in this reference to arbitration which referred also to a previous family partition. I prefer to accept the interpretation placed on the document by the learned District Munsif, that there was an unequivocal intention by all the three brothers to divide from each other expressed in this document. It is well settled case law that an agreement between the members of a joint family whereby they appoint arbitrators to divide the joint family property among them amounts to a severance of the joint status of the family from the date of the agreement. The Privy Council in -- 'Harkishan Singh v. Partap Singh', AIR 1938 PC 189 (A), while laying this down observed that the legal construction or legal effect of an unambiguous document defining shares of the members of the family cannot be controlled or altered by evidence of the subsequent conduct of the parties who may after severance make physical division of the property or may decide to live together and enjoy the property in common. In -- 'Radhakrishna v. Satyanarayana', AIR 1949 Mad 173 (B), it was laid down that once there is a division in a joint Hindu family whether of status or property there is no means of avoiding the result except by a reunion for which an agreement express or implied is always required. Mere continuance to live together in the family house and one member undertaking the responsibilities of management will not by themselves effect reunion for which there must be an unambiguous fresh expression of intention clearly and definitely proved to reunite. When the previous intention to separate is expressed in a document it is reasonable to expect the intention to reunite being similarly expressed in a document and when that is not done reunion becomes a very difficult matter to establish. It is not necessary for me to refer to the wealth of other case-law cited by both sides. I find myself in agreement with the learned District Munsif that there was severance of status between these two brothers by Ex. D. 1 which though not registered as a partition deed can be used in evidence for this collateral purpose. Authority, if need be, for this position, is supplied by a recent decision of the Bombay High Court in -- 'Ramlaxmi v. Bank of Baroda', (C).;

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