Ramachandran and Others vs Kaliaperumal and Others

P. Sathasivam, J.—Unsuccessful plaintiffs in O.S. No. 221 of 1979 on the file of Subordinate Judge, Chidambaram, are the appellants in the

above appeal. The case of the plaintiffs as seen from the plaint averments is briefly stated hereunder : One Vadamalai had 3 sons by name

Narayanasamy, Chinnasamy and Rajamanickam. He had left 5 acres of nanja land and 15 acres of punja land for the joint family. The said

ancestral property as well as the properties subsequently acquired are shown in ''A'' schedule. Narayanasamy died 50 years ago leaving his son

Sarangapani. Sarangapani also died in the year 1976. The wife and his children are the plaintiffs in the above suit. The other son of Vadamalai, viz.,

Chinnasamy died in or about 45 years ago leaving Adhimoolam and Kaliaperumal. Adhimoolam also died in the year 1977 leaving his wife and 3

sons and two daughters. Adhimoolam''s wife viz., Pattu Animal is the third defendant. Since the first son of Adhimoolam predeceased his wife,

Palani is impleaded as 8th defendant. The other two sons, namely, Kirubakaran and Panchamoorthy are impleaded as defendants 4 and 5,

daughters are impleaded as defendants 6 and 7, The minor children of pre-deceased Parimalam are impleaded as D-9 and D-10. It is contended

that the last son of Vadamalai, namely, Rajamanickam, after demise of his two brothers, namely, Narayanasamy and Chinnasamy was looking after

the joint family property as manager. He purchased number of properties from and out of the earnings of the joint family property. The said

Chinnasamy, who is the manager of the joint family is impleaded as first defendant and after his demise, his daughters were impleaded as

defendants 11 and 12. Even though there was a partition in the year 1916, considering the benefit from the joint family, the 3 sharers re-united in

the year 1920 and all of them were enjoying the properties as joint family properties. Hence the plaintiffs are entitled 1/3rd share from the joint

family properties for which they filed the present suit.

Even before filing written statement, the first defendant died.

Second defendant filed a separate written statement wherein he virtually supported the case of the plaintiffs.

8th defendant filed a separate written statement which was adopted by defendants 3 to 11.

The defence pleaded by 8th defendant is briefly stated hereunder : The 8th defendant denied the statement that in the year 1920 all the 3

branches were united and the properties were being enjoyed as joint family properties. It is also denied the averments that the properties have

been purchased from and out of the income of the joint family properties. At no point of time, the shares in the 3 branches were re-united as

contended by the plaintiffs. On the other hand, after 1916, namely, after the partition, the respective sharers are enjoying their properties

separately. In such circumstance, the plaintiffs are not entitled to any share muchless 1/3rd share as claimed by them.

Eighth plaintiff was examined as P.W.1 and she also examined 4 more witnesses in support of the plaintiff''s case apart from marking Exs.A-1 to

A-6. On the other hand, 8th defendant was examined as D.W.1. 4th defendant was examined as D.W.3 and 3 more witnesses were examined on

the side of the defendant Exs.B-1 to B-175 were also marked in support of their defence. After framing necessary issues, the learned Subordinate

Judge after holding that absolutely there is no evidence to show that the three sharers have re-united after partition in the year 1916, dismissed the

suit filed by the plaintiffs. Aggrieved against the dismissal of the suit, the plaintiffs have filed the above appeal as stated above.

I have heard Mr. K. Raghunathan, learned Counsel for the appellants and Mrs. Prabha Sridevan, learned Counsel for the respondents.

Learned Counsel for the appellants contended that inasmuch as after partition re-union is possible and having proved the re-union by oral and

documentary evidence, the Court below ought to have granted preliminary decree as claimed by the plaintiffs. In any event, he contended that

properties under Schedules D and E are available for partition; hence the court below ought to have granted preliminary decree at least with

reference to properties under Schedules D and E. In respect of the above contentions, he very much relied on the following decisions:

(1) Manorama Bai Vs. Rama Bai and Others, .

(2) Manicka Gounder v. Arunachala Gounder 77 L.W. 409.

On the other hand, learned Counsel for the contesting respondents submitted that inasmuch as there is no material or acceptable evidence to

prove re-union, the court below has rightly dismissed the suit. She also pointed out that in order to prove re-union, sufficient evidence must be

placed before the court and in the absence of any material, the court below rightly dismissed the suit. She further contended that all the contentions

raised by the learned Counsel for the appellants have not been pleaded and raised before the court below and it is not open to the

plaintiffs/appellants to surprise the defendants/respondents by raising the same for the first time in the appeal. Further, according to her, there is no

evidence or averments regarding the death of Parvathy Ammal, and Rukmani Ammal as well as the particulars regarding the properties in

Schedules D and E. I have carefully considered the rival submissions.

In order to appreciate the case of both parties. I hereby extract the geneology of the parties to the proceedings. Since a perusal of the

geneology explairis the relationship of the parties, there is no need for me once again to refer the same. The points to be considered in this appeal

are:

(1) Whether there was any re-union in the year 1920 as contended by the plaintiffs. If the answer is in the affirmative, certainly the plaintiffs would

get their reliefs?

(2) Whether the plaintiffs are entitled their share at least in respect of properties in D and E Schedules?

There is no dispute that registered partition took place in the year 1916 between the sons of Vadamalai, namely, Narayanasamy, Chinnasamy and

Rajamanickam. The above fact has not been disputed. However, it is the case of the plaintiffs that in the year 1920 all the 3 sharers united and they

were living together enjoying the properties as joint family properties. It is also the case of the plaintiffs that some of the properties have also been

purchased from and out of the income of the joint family properties. With regard to re-union, it is brought to my notice the Division Bench decision

of this Court reported in Manorama Bai Vs. Rama Bai and Others, , wherein it is held thus:

A reunion properly so called can take place only between those who were parties to the original partition. Re-union, therefore, postulates three

stages viz., (1) joint family, (2) partition between members of a joint family, (3) an intention and an agreement, express or implied, to reunite in

estate among members who were parties to the partition. If persons who had separated in interest merely stay together, that is not reunion in law.

Thus re-union under the Hindu law takes place where, after partition, the separated coparceners agree to have joint residence, joint estate and

joint possession of the estate with the clear condition that ""the property which is mine is thine, and that which is thine is mine.

No doubt, the said decision has been over-ruled by a Full Bench decision reported in Manicka Gounder v. Arunachala Gounder 77 L. W. 409 on

other aspects. The following passage in the said Full Bench decision shows that the view expressed by the Division Bench in Manorama Bai Vs.

Rama Bai and Others, has not been disturbed:

From what we have stated above, it will follow that Manorama Bai Vs. Rama Bai and Others, in so far it held that the widow of a deceased

coparcener in the family and take by survivorship the entire family property on the death of the sole surviving coparcener, has not been correctly

decided. We answer the question formulated at the beginning of this judgment in the negative.

However, the learned Counsel for the respondents relying On a decision reported in Bhagwan Dayal Vs. Mst. Reoti Devi, submitted that there

must be strict proof required for reunion. It is seen from the above said decision 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. To constitute a reunion

there must be an intention of the parties to re-unite 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. Held that there was no re-union between brothers and uncle.

In the light of the said principle in that case, Their Lordships have help that there was no reunion between brothers and uncle. In our case, there is

no dispute that under Ex.B-2 dated 28.11.1916 which also a registered document, there was a partition among the brothers of Narayanasamy,

Chinnasamy and Rajamanickam. In order, to prove reunion after the partition effected in the year 1916, as pointed out by their Lordships in the

above referred decision, 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. As explained, such agreement need not be expressed, but may be implied from the conduct of the parties alleged

to have reunited. Admittedly, there is no tangible documentary evidence to substantiate the reunion among the 3 sharers. Likewise, even the

witnesses examined on the side of the plaintiffs have not deposed with reference to any document. Inasmuch as, according to the plaintiffs, the

reunion has taken place even in the year 1920 none of the witnesses examined on their side are competent to depose the same. On the other hand,

the contesting defendants have placed the relevant documents in order to show that after partition, the respective sharers and their legal heirs are

enjoying the properties separately. They also placed the documentary evidence relating to subsequent sale, purchase, mortgage by the respective

sharers. A perusal of the said documents including kist receipts, patta, chitta extract clearly supports the case of the contesting defendants. Hence,

I am unable to accept the contention of the appellants that there was re-union and the plaintiffs are entitled partition of their shares.

The other contention of the learned Counsel for the appellants is that the court below ought to have granted partition in respect of properties

covered under Schedules D and E. No doubt, the learned Counsel has very much relied on the following passage in Ex.B-2 wherein it is

mentioned as follows:

A reading of the above recital shows that the properties mentioned in those Schedules are available for partition. However, as rightly contended by

the learned Counsel for the respondents, absolutely there is no evidence regarding Parvathy Animal as well as Rukmani Ammal. She also

contended that in the absence of any specific averments in the plaint, supported by evidence, it is not open to the appellants to raise such a

contention at this stage. She also relied on a decision reported in Gandan Singh v. Ram Narain AIR 1959 Pun. 147 in this regard. In the said case,

the plea of adverse decision has not been specifically raised in the pleadings, no evidence let in, no opportunity to the other side to contest, in such

circumstance, the Full Bench of the Punjab and Haryana High Court rejecting the similar contention, came to the conclusion that such

plea/argument cannot be allowed to be raised as a surprise to the other side. The following conclusion of the Full Bench arrived at in that decision

is relevant, which is extracted hereunder:

The above discussion leads one to the only conclusion, and that is, that unless the plea of adverse possession has been specifically raised in the

pleadings, put in issue, and then cogent and convincing evidence led on a multitude of points, and an opportunity to refute the case made out by the

plaintiff, availed of by the defendant, the plea of adverse possession cannot be allowed to be flung as a surprise, on an unsuspecting defendant, for

the first time in appeal.

As rightly contended by the learned Counsel for the contesting respondents, absolutely mere is no plea or evidence with regard to the issue raised

by the learned Counsel for the appellants before the court below. In other words, the said objection was not at all projected in the plaint, nor

argued before the court below. In such circumstance, as observed by the Full Bench in the decision mentioned supra, the said objection cannot be

allowed to be flung as a surprise on the respondents herein. Accordingly, I reject the second contention of the learned Counsel for the appellants.

Under these circumstances, I do not find any merit in the appeal and the same is dismissed with costs.