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TMI Blog2021 (6) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... edy available to the plaintiff was to approach the court in the same case and satisfy the court that compromise was not lawful. Rule 3A was specifically added by the amendment to bar separate suit to challenge the compromise decree which according to legislative intent to arrest the multiplicity of proceedings. We, thus, do not find any error in the judgment of trial court and High Court holding that Suit No.1101 of 1987 was barred under Order XXIII Rule 3A. We having found that Suit No.1101 of 1987 being barred under Order XXIII Rule 3A, it is not necessary for us to enter into correctness or otherwise of the grounds taken in the plaint for questioning the compromise decree dated 06.08.1984. The compromise decree dated 06.08.1984, thus, could not have been questioned in Suit No. 1101 of 1987. Partition of joint family of three branches - main plank of submission on behalf of respondent No.1 is that after the partition dated 07.11.1960, the three branches had separated and joint family status came to end - HELD THAT:- In Bhagwan Dayal Vs. Reoti Devi, [[ 1961 (9) TMI 90 - SUPREME COURT] ], this Court examined the principles of Hindu Law and principles of Hindu Joint Family. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Ms. Shobha Ramamoorthy, AOR Mr. V. Giri, Sr. Adv. Mr. Vikas Mehta, AOR Mrs. Prabha Swami, AOR Mr. Nikhil Swami, Adv. Ms. Divya Swami, Adv. Mr. S. Nagamuthu, Sr. Adv. Mr. V.P. Sengottuvel, Adv. Mr. S. Ravi Shankar, AOR Ms. Yamunah Nachiar, Adv. Mr. R. Nishanth, Adv. Mr. Akshay Kumar A., Adv. Mr. K. V. Mohan, AOR Mr. Kapil Sibal, Sr. Adv. Mr. Arunabh Chowdhury, Adv. Mr. Ankur Chawla, Adv. Ms. Pallavi Langar, AOR Mr. Arun Mohan, Adv. Mr. Nizam Pasha, Adv. Mr. R.K. Mohit Gupta, Adv. JUDGMENT ASHOK BHUSHAN, J. These two appeals have been filed challenging the Division Bench judgment dated 23.11.2011 of Madras High Court dismissing the A.S. No.281 of 2000 and A.S. No.332 of 1999 filed by the appellants respectively. The parties shall be referred to as described in O.S.No.1101 of 1987 (S.R. Somasundaram vs. S.K. Kumarasamy). The appellant, R. Janakiammal in C.A.No.1537 of 2016 was defendant No.7 in O.S.No.1101 of 1987 whereas S.R. Somasundaram, appellant in C.A.No.1538 of 2016 was the plaintiff in O.S.No.1101 of 1987. Janakiammal is the mother of Somasundaram. Relevant facts and events necessary to decide these two appeals are: 2. The parties came from Pattana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being shareholders and Directors. 5. In the year 1975, 50 acres of lands were purchased in Vedapatti village, in the name of defendant Nos.1, 4, 10 and plaintiff. In the year 1978 a palatial Bungalow was purchased in Tatabad, Coimbatore. Defendant No.10, who was Captain in the Indian Army, came back to Coimbatore after leaving his job to look after the family business and properties. From the year 1973, he started looking after the properties at Coonoor. Somasundaram, the plaintiff started his studies at Coimbatore and Chennai and after completing his studies came back to Coimbatore in the year 1979. 6. In Coimbatore one Vasudeva Industries Ltd., which was in liquidation since 1967 was taken on lease from official liquidator of Madras High Court by one Shroff, who along with defendant No.4, S.K. Chinnasamy formed a partnership firm to run Vasudeva Industries Ltd. Defendant No.1, S.K. Kumarasamy was appointed as General Manager to look after the affairs of Vasudeva Industries Limited. An application was filed in the year 1981 in Company Petition No.39 of 1956. Defendant No.1, S.K. Kumarasamy filed an affidavit in support of Company Application No.320 of 1981 praying that liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intly 1/3rd share in all suit properties. The plaintiff in suit had prayed following reliefs: a) to divide the immovable suit properties described in the schedules 'B', 'D' and 'E' and items 1 to 9 in Schedule 'C' hereunder into six equal shares by metes and bounds with reference to good and bad soil and allot one such share to him with separate possession; b) to allot 1/6th share in the shares mentioned in item 10 and 11 of Schedule 'C' and item 2 of Schedule 'D' described hereunder; c) directing the defendants to pay cost of the suit; 8. The plaint Schedule 'B' included ancestral land in Palladam and Samalapuram villages with house at Sadapalayam Helmet. Schedule 'C' included various immovable properties and included residential building, shares in M/s. Swamy and Swamy Plantations (P) Ltd. Coonoor, and shares of M/s. Vasudeva Industries Ltd. were also mentioned as item Nos. 10 and 11 of Scheduled 'C'. In the above suit only defendant Nos.1 to 3 of the suit, namely, S.K. Kumarasamy, Sundarambal, wife of S.K. Kumarasamy and minor Kandavadivel son of S.K. Kumarasamy filed their written sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first plaintiff in O.S.No.1101 of 1987 withdrew himself from the suit and was transposed as defendant No.10 in the suit. The written statement was filed by Janakiammal, defendant No.8 supporting the plaintiff's case and also praying for partition of her share. Senthil Kumaravel, who was plaintiff in Suit No.37 of 1984, filed a written statement in O.S.No.1101 of 1987 where he stated that he filed Suit No.37 of 1984 at the instance of S.K. Kumarasamy, defendant No.1 and decree dated 06.08.1984 was sham and nominal, and was not to be given effect to. Additional written statements were filed by defendant Nos.1 to 3. Defendant No.10 also filed written statement supporting the case of defendant No.1. Reply was filed by plaintiff, Somasundaram to the written statements filed by defendant Nos. 1 to 3. 12. Five witnesses were examined on behalf of the plaintiff. Somasundaram, plaintiff appeared as PW.1. The plaintiff filed Exhs. A-1 to A-55. On the side of defendants, four witnesses were examined. Janakiammal appeared as DW.2 whereas S.K. Kumarasamy appeared as DW.1. Exh.B-1 to B-104 were marked on behalf of the defendants. Exh. X-I to X-27 have been marked through witnesses. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not; whether there was a joint family among the three branches after 07.11.1960; whether the various businesses run under different partnership firms are the joint family businesses. 15. The High Court after considering the submissions of the respective counsel came to the conclusion that compromise decree dated 06.08.1984 in Suit No.37 of 1984 was valid, the plaintiff failed to prove that any fraud was played. The plaintiff, further, failed to prove that they gave any guarantee in the year 1984 for taking loan from Punjab National Bank. Hence, basis of the suit that they signed the compromise deed on the representation of defendant No.1 and that the plaintiff and defendant having given personal guarantee for loan obtained for Vasudeva Industries Ltd., to save family properties from claim of the Bank, the properties be kept only in the name of defendant No.1 and defendant No.4 but the right of the plaintiff and defendants will be held intact. 16. The High Court held that it has not been proved that any personal guarantee was given by the plaintiff, the very ground pleaded by the plaintiff is knocked out. The High Court further held that suit was barred by Order XXIII Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no immovable property was allocated to Janakiammal or her sons. 21. O.S. No.37 of 1984 was filed on the behest of S.K. Kumarasamy by C. SenthilKumaravel, son of S.K.Chinnasamy. C. SenthilKumaravel in his written statement in Suit No.1101 of 1987 has pleaded that Suit No. 37 of 1984 was filed by him at the behest of S.K.Kumarasamy, D-1. C. Senthilkumaravel further pleaded that decree in O.S. No.37 of 1984 was sham and nominal. The 200 shares allotted to Janakiammal as per compromise decree dated 06.08.1984 which were in the name of Smt. Kamalam were never transferred to Janakaiammal. Janakiammal fully supported the plaint case of suit No.1101 of 1987. 22. The partition agreement dated 08.03.1981 as pleaded by D-1 was only an imaginary story. No such agreement was filed in the court nor the same was pleaded in a written statement filed by D.1-3 in O.S. No.37 of 1984. Despite the agreement dated 08.03.1981 not being produced in the Court, the trial court in its judgment dated 30.09.1997 had erroneously accepted the factum of partition by agreement dated 08.03.1981 and accepted the case of defendant No.1 that compromise decree dated 06.08.1984 was to give effect to the partition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. Suit No. 37 of 1984 was filed on illusory cause of action, bar under Order XXIII Rule 3A shall not apply. The High Court after having found that suit is barred under Order XXIII Rule 3A has not entered into other issues. The house property of Tatabad which was purchased in 1978 was not included in Schedule of O.S.NO.37 of 1984 which property was included in Suit No.1101 of 1987, hence, suit for share in house property at Tatabad was fully maintainable. The plaintiff has completed his graduation in Textile Engineering. Vasudeva Industries was not a family concern, which was under litigation and was not a profit making venture. The consent decree dated 06.08.1984 was never acted upon. The mill could not be revived and closed down in 1987. The defendant No.1 continued to manage the affairs of the mill till 1989 when he resigned. 28. Shri Kapil Sibal refuting the submissions of the appellants contends that partition dated 07.11.1960 between three branches was given effect to. Income Tax Returns were filed by three branches on the basis of 1960 partition. There was an arrangement made in 1981 under which the D-1 was to take properties at Coonoor, D-4 was to take properties at So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34. Shri Giri in rejoinder submission submits that Janakiammal s case was that she never engaged any advocate. She, however, stated that she had signed the compromise application in Tamil. Her case was that she does not know English and the Compromise was written in English. Signatures of Janakiammal were taken on compromise application by D-2, wife of D-1, who in usual course, for the purposes of business and Tax obtains signatures of Janakiammal from time to time. The family was running various businesses. Shri Giri submits that the judgment of the trial court dated 06.08.1984 in O.S. No.37 of 1984 states that Vakalatnama of defendant Nos.8 to 13 was not filed. He submits that certified copy of Vakalatnama filed by advocate Thirumalnesan on behalf of defendant Nos.8 to 13 has also not been brought on record and according to the papers submitted by D-1, the Vakalatnama and the documents have been destroyed. How can D-1 say that the Vakalatnama has been destroyed. 35. Shri Giri submits that the house at Tatabad which was included as Item No.10 in Schedule C in Suit No.1101 of 1987 was purchased from a joint family fund. Although the house was taken in auction by D-1 but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit: Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule; 40. By the same amendment Act No.104 of 1976, a new Rule, i.e., Rule 3A was added providing 3A. Bar to suit. No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. 41. Determination of disputes between persons and bodies is regulated by law. The legislative policy of all legislatures is to provide a mechanism for determination of dispute so that dispute may come to an end and peace in society be restored. Legislative policy also aim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not free consent and such agreement shall not be contract if free consent is wanting. Sections 15, 16, 17 and 18 define coercion, undue influence, fraud and misrepresentation. Section 19 deals with voidability of agreements without free consent. Section 19 is to the following effect:- 19. Voidability of agreements without free consent. When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true. Exception. If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. Explanation. A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the plaintiff but also against the Court. The plaintiffs pleads that compromise decree which was intended only to secure and safeguard the properties is sham and nominal besides being fraudulent. 47. From the above, it is clear that plaintiff pleaded that compromise recorded on 06.08.1984 was not lawful compromise having been obtained by fraud and misrepresentation. The plaintiff s case was that they were represented by D-1 that the compromise is being entered only to save the family property since the plaintiff has given personal guarantee to the Punjab National Bank for obtaining loan for Vasudeva Mills. Pleadings clearly make out the case of the plaintiff that the consent which he gave for compromise by signing the compromise was not free consent. The compromise, thus, become voidable at the instance of the plaintiff. 48. Whether the bar under Rule 3A of Order XXIII shall be attracted in the facts of the present case as held by the Courts below is the question to be answered by us. Rule 3A bars the suit to set aside the decree on the ground that compromise on which decree was passed was not lawful. As noted above, the word lawful has been used in Rule 3 and in the Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the suit was also amended to curtail vexatious and tiring litigation while challenging a compromise decree. Not only in Rule 3 some special requirements were introduced before a compromise is recorded by the court including that the lawful agreement or a compromise must be in writing and signed by the parties, a proviso with an explanation was also added which is as follows: Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation. An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule. 7. By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the court which had recorded the compromise in question. That court was enjoined to decide the controv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 2182001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 2782001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code. 52. The next judgment is R. Rajanna Vs. S.R. Venkataswamy and Ors., (2014) 15 SCC 471 in which provisions of Order XXIII Rule 3 and Rule 3A were again considered. After extracting the aforesaid provisions, following was held by this Court in paragraph 11: 11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat court and that court alone who can examine and determine that question. 54. In subsequent judgment, Triloki Nath Singh Vs. Anirudh Singh (Dead) Through Legal Representatives and Ors., (2020) 6 SCC 629, this Court again referring to earlier judgments reiterated the same preposition, i.e., the only remedy available to a party to a consent decree to avoid such consent decree is to approach the court which recorded the compromise and separate suit is not maintainable. In paragraphs 17 and 18, following has been laid down: 17. By introducing the amendment to the Civil Procedure Code (Amendment) 1976 w.e.f. 1-2-1977, the legislature has brought into force Order 23 Rule 3A, which creates bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the court of competent jurisdiction once and for all. 18. Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3A of Order 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1101 of 1987. 57. There remains one more submission which needs to be considered. 58. Learned counsel for the appellants contends that even if consent decree dated 06.08.1984 could not have been challenged, the appellants were entitled for shares in residential building at Tatabad, Dr. Alagappa Chettiar Road, Coimbatore, which was left out from the decree dated 06.08.1984. The above residential suit property was not a part in O.S. No.37 of 1984 and was not in compromise decree dated 06.08.1984. The averment of the appellant is that the said residential property was although in the name of defendant No.1 but it was acquired from joint family funds hence the appellant had also share in the property. 59. The residential building at Tatabad, Dr. Alagappa Chettiar Road, Coimbatore was included in Item No.10 of Schedule 'B' of properties to the following effect: Item No.X In Coimbatore Registration on District, Coimbatore Corporation Limits, Tatabad, Dr. Alagappa Chettiar Road, D.No.101, Extent 0.33 acres with 4500 sq.ft. built up residential building. 60. The above residential property was neither included in O.S.No.37 of 1984 nor part of compromise de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of house property at Tatabad utilised the funds of the Swamy and Swamy Plantations Co. In his cross-examination, he admitted that he had taken Rs.1,50,000/-. In his cross-examination, following was stated by defendant No.2: It is incorrect to say that for purchasing house company funds were taken. I do not remember and there are no records to show from which partnership and from which account it was drawn. It is not correct to say that I took joint family funds and purchased. I would have taken about Rs.1.50 lakhs. It was not returned. Records cannot be produced now. 65. In subsequent cross-examination, he clearly mentioned that the amount which was taken for the purchase of the house property at Tatabad was not returned to Swamy and Swamy Plantations Co. In his cross-examination on 12.08.1997, defendant No.2 states: On 12.8.1997 the witness was sworn and re-examined. The reason for not returning the amount to Swamy Sawmy Plantation Company from which it was borrowed for the purchase of the house in Tatabad, because there was credit balance in my name in the said company. 66. Evidence on record, thus, indicates that Tatabad house property was pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no joint family when the Tatabad house property was purchased in 1979. 70. The submission of the learned counsel for the appellants in support of the appeals is that partition dated 07.11.1960 was entered between three brothers to save the landed property from Land Ceiling Act. The partition deed dated 07.11.1960 was got registered on 07.11.1960, it claims that parties have divided immovable properties on 01.04.1960. The submission is that Land Ceiling Act was being implemented immediately after 01.04.1960 hence the said claim was set up in the partition deed. The partition deed was executed to save the landed property of the three branches and there was no intention of separating each branch and bringing the change in joint family status. The submission of Shri Giri has been reiterated which was also raised before the High Court that after partition dated 07.11.1960 the three brothers united and joint family continued even after 07.11.1960, which is evident from different properties purchased in the name of all the three branches, living together in ancestral house at Sadapalayam and newly constructed house at Somnur. After the purchase of land in 1963 all the three branche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the properties allotted to the three of us vide the said document as one family and have developed it, sold it, done agriculture in it and carried out business. We have also partitioned among us. Since we decided to partition amongst ourselves we have divided the business capital belonging to our joint family vide accounts dated 1.4.1960. We have already divided the jewels, utensils and other articles and each of us are enjoying them separately. Though on 01.04.1960 we have divided the immovable properties such as house buildings, factory buildings, farm and lands to avoid litigation among us in future we have registered it through this document. 74. The case of the appellant is that the partition deed dated 07.11.1960 was entered between three brothers to save the properties from land ceiling laws. The relevant date under the Land Ceiling Act was 07.04.1960 on which date the extent of properties in hands of a person has to be determined and since three brothers, who consisted members of joint family on the relevant date had more than the land which was permitted to a person, a partition was entered to save the properties from land ceiling laws. This argument was reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self from joint family. The intention of the parties to terminate the status of joint family is a relevant factor to determine the status of Hindu Undivided Family. From the above, it is clear that real intendment of three branches to partition their properties was not that they did not want Hindu Undivided Family to continue rather the said partition was with object to get away from application of Ceiling Act, 1961. The intention of the parties when they partitioned their properties in the year 1960 is a relevant fact. 77. However, the Partition Deed dated 07.11.1960 being a registered Partition Deed between three branches, the same cannot be ignored. Properties admittedly were divided in three branches by the said partition. The question is as to whether after 07.11.1960, the family continued as a Joint Family or the status of joint family came to an end on 07.11.1960. The case of the appellant which was also pressed by the High Court was that even if partition dated 07.11.1960 is accepted; the parties lived in a joint family and continued their joint family status. The contention advanced by the appellant was that there was reunion between three brothers to revert to the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Balabux Ladhuram v. Rukhmabai (1903) 30 Cal. 725. 80. Another judgment which needs to be noticed is judgment of Madras High Court in Mukku Venkataramayya Vs. Mukku Tatayya and Ors., AIR 1943 Mad. 538. In the above case, there was partition in the family in the year 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isunderstandings had arisen between them. As between the sons themselves there never was any reason for a separation inter se and there can be no doubt that the moment they separated away from their father they desired to live and lived together in joint status. It is true that at that time the first respondent was a minor. But this can make little difference if after he attained majority he accepted the position in which the appellant and Nagayya had already begun to live together. In our view it is not necessary that there should be a formal and express agreement to reunite. Such an agreement can be established by clear evidence of conduct incapable of explanation on any other footing. Such, in our view, is the position here established. That being so, the claim of the appellant to the exclusive ownership of the properties in suit must be negatived. The appeal fails and must therefore be dismissed with costs. 82. One more judgment on the concept of reunion which need to be referred to is the judgment of Karnataka High Court is M/s. Paramanand L. Bajaj, Bangalore Vs. The Commissioner of Income Tax, Karnataka, II, Bangalore, (1981) SCC Online Karnataka 131. Justice Rama Jois ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tators have taken the view that it is only illustrative and not exhaustive and that reunion is possible even among persons not specified in the text of Brihaspati. (See: Virmitrodaya, translated by Gopalachandra Sarkar (1879) pp 204-205; Vivadachintamani Gaekwad's Oriental Series Vol. XCIX pp 288-289). But even so there is no controversy that reunion is possible only among persons who were on an earlier date members of a HUF. Reunion therefore is a reversal of the process of partion. Therefore, it is reasonable to take the view that reunion is not merely an agreement to live together as tenants in common, but is intended to bring about a fusion in interest and estate among the divided members of an erstwhile HUF so as to restore to them the status of HUF once again and therefore reunion creates right on all the reuniting coparceners in the joint family properties which were the subject matter of partition among them to the extent they were not dissipated away before the date of reunion. That would be the legal consequence of a genuine reunion is forcefully brought about by the text of Brihaspati, which provides where coparceners have again reunited through affection, they shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Baldbux Ladhuram v. Rukhmabai [(1903) LR 30 IA 190] . It is also well settled that 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 an 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. The legal position has been neatly summarized in Mayne's Hindu law, 11th Edn., thus at p. 569: As the presumption is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable. But the facts of that case are entirely different from those in the present case, and the conclusion arrived at by the learned Judges cannot help us in arriving at a finding in the instant case. 84. The above observations indicates that this Court also approved the Madras High Court judgment in Mukku Venkataramayya(supra). Again this Court in Anil Kumar Mitra and Ors. Vs. Ganendra Nath Mitra and Ors., (1997) 9 SCC 725 held that the acts of the parties may lead to the inference that parties reunited after previous partition. In paragraph 4, following observations have been made:- 4. It is true that by the acts of the parties that even after the previous partition, they continued to be members of the joint family. But it should be by conduct and treatment meted out to the properties by the members of the family in this regard 85. Now, we look into other materials on record. The ancestral house of the parties was at Helmet, Sedapalayam, Village Karumathampaty where three brothers alongwith their father A.V. Kandaswamy used to live. DW-2 in her statement has also stated that after she was married with Rangasamy, she lived at ancestral hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses were carried out. Even the Suit No.37 of 1984 which was filed for partition of properties was at the instance of defendant No.1, which pleadings have been made by the plaintiff of that suit when he filed written statement in Suit No. 1101 of 1987. The plaintiff of Suit No.37 of 1984 Senthil Kumaravel in his written statement in Suit No. 1101 of 1987 has clearly stated that he filed the Suit No.37 of 1984 at the instance of defendant No.1, which fact has also been noted in paragraph 9 of the trial court s judgment. 87. It is relevant to note that in suit No.1101 of 1987, it was only D-1, who filed the written statement and appeared in the witness box. D-4, S.K. Chinnasamy, neither filed written statement nor came to the witness box. It was D-1 who was pleading that joint family came to the an end after partition dated 07.11.1960. D-1 in his written statement and in his oral statement before the court has come up with the case that there was partition of the properties on 08.03.1981 and an agreement was entered between the three branches and compromise decree dated 06.08.1984 was passed to implement the agreement which was entered in the year 1981. In the written statement f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranch and that after the year 1981, the family of the 1st defendant, had relieved themselves from Swamy Co., Rangasamy Brothers. Swamy Textiles, Rengavilas Warfing Sizing Factory and that it had been proved through the oral evidence and the documentary proof and that through the Ex.A12 document, the plaintiff and the 10th defendant were in the management of the mill and the same had been clearly proved and that after 08.03.81, the 1st defendant had obtained the right in the estate and that it is clearly proved through Ex.B67 and that it is the stock register maintained in the Sciefield Tea Factory and that it would reveal that till March, 1981 and 10th defendant had signed in the register and that thereafter the 1st defendant had signed in the same is clearly revealed, in the Ex.B68, 69 gate pass also it is found as above and that from this, it is clearly revealed that after the 1981, the above said agreement was brought into force and that it is proved clearly and that it had been indicated on the side of the plaintiff that it is incorrect to state that the property at Coonoor, Veerakeralam is in the custody of the 1st defendant and the properties at Somanur are lying with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff never admitted the agreement dated 08.03.1981 or alleged partition of 08.03.1981, it is, thus, clear that parties remained joint and properties standing in the names of three branches remained joint till the consent decree was passed on 06.08.1984. 96. Thus, in the year 1979 when residential property of Tatabad was obtained in the name of defendant No.1, all three branches were part of the joint Hindu family and the house property purchased in the name of one member of joint Hindu family was for the benefit of all. 97. Both the Courts below although accepted the partition dated 18.03.1981 as pleaded by D-1 but erred in not considering the consequence of such pleading. When partition of all immovable and movable properties is claimed on 08.03.1981, the conclusion is irresistible that the family was joined till then. The theory set up by D-1 that all the three branches were separate after 07.11.1960 is denied/belied by claim of partition on 08.03.1981. 98. Both the trial court and High Court have given much emphasis on the fact that three branches were filing separate IncomeTax Returns and Wealth Tax Returns after 1967. An individual member of joint Hindu Family can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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