9911796707
TMI Blog1981 (4) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: The assessment years to which these references relate are 1971-72 and 1972-73. The assessee is an HUF consisting of one Paramanand L. Bajaj and his wife and their daughter. Prior to August, 1956, there existed a larger HUF consisting of Paramanand L. Bajaj, his wife, their three sons and two daughters. The business of the family was that of money-lending. The three sons of Paramanand L. Bajaj are Devendra P. Bajaj, Vijayakumar P. Bajaj and Nandlal P. Bajaj. The assessment under the Act, was being made on the HUF represented by its karta, Paramanand L. Bajaj. On August 20, 1956, Devendra P. Bajaj got separated from the family and he made a declaration to that effect on August 23, 1956, before the Magistrate. Vijayakumar P. Bajaj got separated from the family on December 22, 1961. Nandlal P. Bajaj got separated from the family on June 30,1963. He also made a declaration to that effect before the Magistrate on July 9, 1964. After these separations, i.e., from 1964-65 onwards, assessments were being made on the smaller HUF consisting of Paramanand L. Bajaj his wife and an unmarried daughter. During the assessment year 1971-72, Paramanand L. Bajaj showed the income of the smal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h August, 1956, 22nd November, 1961, and 13th June, 1963, respectively; and WHEREAS the parties hereto being desirous of reuniting to form Hindu undivided family. Now this agreement witnesseth as under: (1) The parties hereto do hereby affirm that they have reunited on 27th day of March, 1971, to form a Hindu undivided family. (2) Any party to this agreement can throw either his self acquired property or any property got by him on partition of the Hindu undivided family before this reunion into the said Hindu undivided family. (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 the common hotchpot of the Hindu undivided family which has come into existence by virtue of this agreement. In witness whereof the parties hereto have hereunto set and subscribed their respective hands and seal the day, year, first hereinabove written ....... .." All the four reunited members have affixed their signature to the above agreement. There is also no dispute that within three days thereafter on 30th March, 1971, Paramanand L. Bajaj threw the properties of the sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivocal declaration of the reunion was evidenced by the agreement signed by Paramanand L. Bajaj and his three sons, who did constitute an HUF before partition, the I.T. authorities and the Tribunal could not have held that there was no reunion just because some of the reunited coparceners had not thrown their properties, got on partition, into the family hotchpot, in view of the reservation to that effect contained in para 3 of the agreement as that was not a precondition for reunion under the Hindu law. (2) Even on the basis that the concept of reunion under the Hindu law includes the bringing of the properties secured on partition by the erstwhile coparceners into the reconstituted HUF, the properties which they had got on partition must be deemed to have become the properties of the reconstituted HUF notwithstanding the clause to the contrary in the agreement of reunion as the declaration of reunion was full and complete and was also followed by the throwing of the properties at the hands of Paramanand L. Bajaj into the hotchpot of the reunited HUF. In other words, his contention was that cl. 3 of the agreement which records the reunion which gave option to the reunited coparc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seekaranaparyantassamsargo na Puna: sahavasamaatramiti mantavyam. Association not necessarily being by co-residence, the association is expressed to be through wealth, so by way of removing the distinguishing factor of that, it should be understood that the reassociation of the separated members shall be to the extent of pooling together (all) the wealth, etc., as before, and not merely by a co-residence only. Mitakshara on Yaj. II 138-139, which lay down special rule of inheritance at a partition among reunited members explains the effect of reunion as follows: Vibhaktam dhanam punarmisreekrtam samsrshtam tadasyaateeti samsrshtee. Effects which had been divided and which are again mixed together, are termed re-united. He, to whom such appertain, is a re-united parcener. The aforesaid provisions have been the subject-matter of interpretation in a number of cases. In support of the submission that a bringing back of the property got on partition by all the erstwhile coparceners, is not a condition for reunion, learned counsel for the assessee relied on the decision of the Madras High Court in Venkanna v. Venkatanarayana, AIR 1947 Mad 49. In that case, one of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 650-651): " Now it is the wish of us, the defendants to become again joint in family and property and come and remain jointly in possession and use of the entire family properties.. But the share of me, Nana Ojha and my sons shall be 12 annas and that of me, Prabhudat Ojha and my son Biswanath Ojha 4 annas in the joint family properties. We have become joint again under the above stipulations. The said three widows shall get maintenance out of the 12 annas share of me Nana Ojha and my sons. We, Nana Ojha and Prabhudat Ojha, shall remain joint in family during our lifetime or during the lifetime of any one of us and we shall never effect partition. After the death of us, the declarants Nana Ojha and Prabhudat Ojha, when our sons will partition their shares among themselves Kishore Ojha, Harnandan Ojha, Mahabir Ojha sons of me declarant No. 1, shall get each four annas share; to Biswanath Ojha, son of me, declarant No. 2, the remaining 4 annas share. All the brothers (cousins) shall get an equal share of four annas each. Though some of the family properties stand in the name of one declarant and other proper ties in the name of the other declarant and though in future also prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an ordinary case of reunion, the widows of the two brothers Brahmadat and Karamdat would have been entitled to maintenance out of the joint property, the share formed by amalgamating the shares of both the brothers. The agreement, however, was that these widows would get their maintenance out of the 12 annas share of Nana Ojha and his sons. On partition, after the death of Nana Ojha and Prabhudat Ojha, among their respective sons, the divisions of the property would not be according to the shares they would have in a joint Mitakshara family but would be according to the share which their respective fathers had in the property before the reunion." Relying on the above conclusion, learned counsel for revenue contended that the agreement of reunion entered into by Paramanand L. Bajaj and his three sons, in this case, likewise did not also bring about a lawful union in view of the option reserved for the reuniting coparceners under cl. 3 of the agreement and the ratio of the Patna case, AIR 1924 Pat 647, applies on all fours to this case. The next decision on which the learned counsel for the revenue relied was the one rendered by the Madras High Court in Manorama Bai v. Rama Bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and still in their possession to the reunited family, but it is not correct to state that they should throw into the common stock, the whole of their possession which might include self-acquired property, which they had acquired earlier to the date of partition or subsequently, independently and without the aid of joint family nucleus, as under the Hindu law individual coparceners of an HUF are not debarred from possessing self-acquired property. The decision also states that the question whether there has been a reunion or not is a question of fact to be decided on the facts and circumstances of each case and that the legal effect of reunion cannot be controlled by the subsequent conduct of the parties. The Supreme Court in the case of Bhagawan Dayal v. Reoti Devi, AIR 1962 SC 287, gave their full assent to the view taken by the judicial Committee of the Privy Council and the law as summarised in Mayne's Hindu Law. The relevant portion reads (pp. 295-296 of AIR): ' (22) For the correct approach to this question, it would be convenient to quote at the outset the observations of the judicial Committee in Palani Ammal v. Muthuvenkatachala Moniagar, AIR 1925 PC 49, at P. 51: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proved by the subsequent conduct of the parties in the absence of a formal registered document. While the decision of the Madras High Court in Venkanna's case, AIR 1947 Mad 49, supports the submission of the assessee that an erstwhile coparcener, who had spent away the property could reunite without bringing back any property into the reunited family, yet, as pointed out earlier, it does not lay down that even if the erstwhile coparceners had in their possession, at the time of reunion, all or any portion of the property which they had got on partition, they could reunite, keeping the property separately as their individual property. The decisions on which the learned counsel for the revenue relied lay down that unity in interest and estate is essential to constitute a reunion. But the unity in estate could also mean an agreement to have joint right and enjoyment in respect of all future acquisitions made by joint effort on and from the date of reunion. This could be so, as reunion is possible even if all the reuniting members had lost or dissipated away the properties got at (an earlier) partition. The Madras High Court in the case of Manorama Bai, AIR 1957 Mad 269, has ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong persons who were, on an earlier date, members of an HUF. Reunion, therefore, is a reversal of the process of partition. 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 an HUF once again and, therefore, reunion creates a right in all the reuniting coparceners in the joint family properties, which were the subject-matter of a partition, among them to the extent they were not dissipated away before the date of reunion. That this 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 shall mutually participate in each other's properties ". Mitakshara states that mixing up of divided properties is the effect of reunion. Therefore, it follows, no coparcener, who is a party to a reunion and who admits the reunion, shall be heard to contend that the property, which he had got at an earlier partition, and is still with him, has not become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as was the position in the Patna case (AIR 1924 Pat 647), which clearly means that every property thrown into the hotchpot of the reunited family and the income earned by every one after the date of the reunion, is available for mutual participation and enjoyment, satisfying the principle of junction of estate, i. e., the principle of what is thine is mine or what is mine is thine" to that extent. (vii) As against the above facts and circumstances which support the plea of reunion, there was no material before the authorities, that any of the persons, who is a party to the reunion, was disputing the factum of reunion. These are the incontrovertible facts and circumstances in support of the plea of reunion. The only trouble spot, however, is cl. 3 in the agreement dated March 27, 1971, which is the evidence of the reunion in writing, which gives an option to the reunited persons either to keep the properties which they had got on partition separately or to put them into the family hotchpot. It is this clause which prevailed with the ITO, the first appellate authority and the Appellate Tribunal to hold that there was no reunion. Therefore, the real and the only question for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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