DINABANDHU BEHERA Vs. BISUNI BEHERA

JUDGEMENT

(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 ).