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Reunion of Partition under Hindu Law

Reunion of a family; a situation in which the specific family members regain their position as a joint-family, which was lost during partition. The only method for family members to re-establish their joint status is through a reunion. However, members of the family who previously held joint ownership of the land are entitled to reunite only.

The most essential element for reunion is that the parties intend to reunite in the estate and share a common interest. That also means that just deciding to live under the same roof without the goal of restoring joint property status does not constitute a genuine reunion. It is also essential that the communication be vivid, with each individual coparcener providing individual approval to the reunion.

When a family reunites, the primary result is that the reunited individuals are restored to their original position as members of a Hindu joint family.

There is a lack of judicial rulings on reunion due to which we have to rely upon the past rulings to decide upon the present issues, but these rulings are not in line with the current social conditions of the society. Apart from this there is absence of rulings on the minor's right to reunion even though some of the other laws have given minors their due right, this further poses many legal issues with relation to reunion.

In this paper the researcher has analysed the concept of Reunion after partition in detail along with the relevant case laws to explain the various elements of reunion, in addition to this, a recent case related to reunion is also discussed to highlight the importance of the element of intention of the parties while deciding upon the cases related to reunion and the researcher has particularly focused on the aspect of minor's in relation to reunion of partition and the issues related to the same.

Reunion

Reunion is reuniting families that have been separated due to partition. However, under Hindu Law, the term "reunion" refers to a circumstance in which the status of a formerly united family is restored following its split. Despite the fact that the HUF(Hindu Undivided Family) has been completely divided, it is possible to reunite under Hindu law.

The court in the Case of M/s. Paramanand L. Bajaj, Bangalore Vs. The Commissioner of Income Tax, Karnataka[1] relied on the text on reunion in Brihaspati Smriti and quoted that,

"He who being once separated dwells again through affection with his father brought or paternal uncle is termed reunited. reunited through affection, they shall mutually participate in each other's properties.

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 re-association 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. Effects which had been divided and which are again mixed together are termed reunited. He, to whom such appertain, is a re-united parcener."

This lays down some of the elements and essentials for reunion after partition to be successful, to understand it better we will now look into the eligibility criteria, essentials and effects of reunion.

Reunion

Conditions For Parties To Reunite:

Following are the conditions:
  1. Reunion can only take place when a partition has taken place already, thus partition is an essential prior condition for reunion.
     
  2. The intention of the parties wanting to reunite is a necessary condition for reunion to take place. This intention must be unequivocal and clear by the conduct of the parties. And such an intention need not be for any purpose other than establishing a Hindu Joint family. This condition is among the most important to be looked into while deciding a suit on partition.
     
  3. Reunion can only be possible if the parties intending to reunite were the parties to the partition which took place before. i.e an adopted son cannot after partition of parties file for reunion.

    In the cases related to Mitakshara school, Reunion only takes place if the parties come within the following relations: Father, Brother and Paternal Uncle. But in the case of Mithila School, reunion can be done with any party.
     
  4. Consent of each and every party involved in Reunion needs to be take, consent can be given orally or conduct too is sufficient to depict consent of the party.
     
  5. Reunion can be enforced only when reunion involves reuniting property, as merely living together doesn't require reuniting the HUF.
     
  6. Minor cannot reunite.
     
  7. The purpose of the reunion is to bring about the merger of the interests of the parties in the Hindu Undivided Family, and hence it confers a right on all parties involved. In the case of reunion, a few of the properties and some of the persons engaged in the division may be excluded or opt not to participate in the reunion at all. This implies that there is a possibility of "A partial reunion". As a result, the interest must be clearly stated.
     

Effect Of Reunion

Reunion is done for the purpose to Unite the family together which gives them the status of Hindu joint family as it existed before the partition.

This reuniting of the family involves the pooling of the property of all the parties to a reunion, thus all the property together becomes Joint family Property and each member of the coparcenary holds a share in the pool of the joint family property.

Elements Of Reunion And Important Case Laws

Nature Of Evidence

In Bhagwan Dayal v. Reoti Devi [1] it was held 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 reunion that there shall be an agreement between the parties to reunite in estate with intention to revert to their former status of members of a joint Hindu family."

Such agreement can also be implied from the conduct of the parties wanting to reunite, but such conduct should clearly show the intention of the parties to reunite. And the burden of proving this lies on the party alleging it.

Partition And Presumption Thereof

In cases on reunion the presumption is against the members remaining joint i.e the presumption is that partition existed and the burden of proving otherwise is on the party wanting to reunite or the one challenging the partition.

In Jatti v. Banwari Lal [2], it was held that:
"When one member of a joint family separates there is no presumption that remaining members remained united."

Who May Reunite?

In Balbux Ladhuram v. Rukhmabai [3] it was held that reunion only takes place between the parties who got divided earlier i.e the parties to the partition can only be parties to reunion.
Upon this the court held that:
"A reunion could take place only between the persons who were parties to the original partition. Court also observed that agreement to reunion couldn't have been made by or on behalf of the minor-plaintiff."

In Balasubramania Reddy v. Narayana Reddiar,[4] it was held:
"That reunion is product of agreement and minor is incompetent to contract therefore an agreement can't agree to reunite."

It was observed in a case that, "it is the elementary principle of Hindu Law of Mitakshara School that a member once separated can unite only with his father, brother or paternal uncle but not with any other relation." [5]

Construction Of Reunion Agreement

Another interesting question relating to reunion came up in Parmanand L Bajaj v. Commissioner of Income Tax[6] was if the agreement for reunion contained a clause providing that all the parties don't need to pool all their properties into the joint family pool after reunion, so the question was whether this clause invalidates the reunion?

Facts:
Parmanad L Bajaj was karta of HUF prior to 1956 which consisted of Himself, his wife, three sons and two daughters. During the period of 1956 to 1963 all the sons got separated by making declarations before Magistrate. Later in 1971, the father and his three sons effected a reunion agreement, and this agreement contained the debatable clause related to pooling of properties of parties reuniting.

The clause read as follows:
(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 common hotchpot of the HUF which has come into existence by virtue of this agreement.

With regard to clause (3) the court observed that:
It is not destructive of reunion, as according to the clause every reuniting member can put his property into the joint family properties.
Therefore, the court held that by reunion was established in the present case but clause (3) being repugnant to reunion is invalid not vice-versa.

R.Jankiammal V. S.K.Kumaraswamy, Sc, 2021
Facts:
On November 7, 1960, three brothers concluded a division agreement. In this case, the Supreme Court had to rule on whether a home acquired in 1979 is a joint family property or not.
In this case, the Supreme Court had to rule on whether a home acquired in 1979 is a joint family property or not.

According to the appellant, the partition dated 07.11.1960 was entered into by the brothers to protect the property from the Land Ceiling Act, and there was no intention of dividing each branch and changing the joint family status. It was stated that three brothers rejoined to establish a Joint Hindu Family, as evidenced by the members behavior and conduct following November 7, 1960.

The trial court rejected the suit in a decision dated September 30, 1997. The trial court affirmed the guilty pleas of defendants No. 1-3, which were prohibited under Order XXIII Rule 3A CPC. The trial court also affirmed the partition deed dated 07.11.1960 and the agreement dated 08.03.1981. , no additional point for consideration had been created, despite the fact that the various attorneys had given extensive arguments. After considering the arguments of the various attorneys, the High Court concluded that the compromise judgment dated 06.08.1984 in Suit No.37 of 1984 was legitimate and the plaintiff failed to establish that any fraud occurred.

The court in this case ruled that when the Property in Tatabad which was purchased in 1979 by one of the brothers will be considered to a joint family property.
Thus, all the three branches of the family will be entitled to benefit from the property.

Analysis:
The court in this case was concerned with the nature of the property purchased in 1979 in Tatabad, while deciding on this point, the court had to look into whether after the partition deed which was signed in 1960, the Joint family got separated and the branches were divided.

The court held that after signing the deed for partition, the parties remained united and thus constituted a Hindu Joint family and all the other obligations attached to it followed.
The question which deliberated upon the most while deciding the status of the family after 1960 was whether the parties to the partition had the intention to reunite so as to constitute a Joint family.

The court observed that the conduct of the parties incontrovertibly showed that there was clear intention of the parties to constitute a joint family again.

The following points were taken into consideration while deciding this:
  • The parties had no intention to separate themselves from the joint family but they did the partition to safeguard the parties from Land ceiling tax act.
  • The conduct of the parties after the partition clearly showed that they still lived together and had the intention to live in the joint family by following all its duties and obligations.
  • This was evident as they still lived together and didn't ever separate even after the partition and also the Business of the family i.e Swamy and Swamy industries still remained under the control of the three branches of the family, and the property in dispute i.e the one purchased in 1979 was also purchased under the name of all the three brothers, which clearly shows that there existed no intention within the parties to part ways.

The court relied heavily on the point of intention of the parties while deciding upon the issue of reunion after partition:
While deciding this the court relied on the Mayne's Hindu law, ( John D Mayne, Mayne's treatise on Hindu law & usage, 14th edition, Bharat Law House, 2000),
"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 from the fresh formation of a joint undivided Hindu family."

And in the present case, the court had enough evidence to convince them of the reunion between the members of the joint family and the intention behind the partition.

Though no formal agreement was done while reuniting but the conduct of the parties was alone sufficient to satisfy the bench of the reunion between the Joint Hindu family.

Thus, on the basis of the above case and the discussion done prior, it can be said that one of the most essential element for determining whether the reunion is valid or not is dependent on the intention of the parties.

Coming to another issue related to the concept of reunion is with regard to minors,

Reunion From A Minor's Outlook

It is known from the above discussion that a minor by law is held to be incompetent to contract as they aren't capable of forming a legally valid intention.

Now coming to the situation of reunion involving a minor, similar case was decided by the Privy council in which they held that since for effecting reunion, agreement within the parties is essential which is possible only when the party is competent to contract but as a minor is incapable of doing so, Hence, reunion cannot be done by a Minor.

Similar interpretation is also provided within the Mulla's Hindu law commentary, which states that:
"Since a minor is not competent to contract, it follows that an agreement to reunite cannot be made by or on behalf of a minor."

But this creates a problem, if for example:
A father wants to reunite with his brothers, but he has a minor son, so when he reunites with the rest of his family, his minor son would be left out of the Joint family as neither the minor son himself nor the father on behalf of him can enter into an agreement to reunite.

This would lead to some untenable family situations.

Though there are some sources which talk about the capability of the guardian to enter into reunion agreement on behalf of the minor, like Mayne's Hindu Law.

Similarly in a Madras HC case, it was held that agreement can be made on behalf of the minor. But in a later case having a similar factual matrix was decided by relying upon the Balabux Judgement. The supreme court too hasn't decided on a case involving minors' competency to reunion agreement.

Therefore, on the basis of the above discussion it can be said that the position of the minor with respect to the agreement for reunion remains hazy due to limited number of judicial pronouncements on the subject of Reunion.

Partition And Reunion : Minor's Perspective

Minor is a coparcener in the Joint family and during the time of partition, a minor is given his respective share as the member of the coparcenary and the guardian effects the partition on behalf of the minor.

But a minor cannot be made party to a reunion even through his guardians.

Apart from the this, the most distinguishing feature is that the minor holds the right to reopen the partition even after the partition has been done, this is possible if the partition effects the rights and interest of the minor negatively.

Thus, a minor is able to set aside a partition if it is found detrimental to his interests, but a similar provision isn't provided for setting aside reunion. Since:
"Under the law of partition, the reopening of the agreement at the instance of the minor is only allowed if it can be proved that the partition was detrimental to the interest of the minor. The position of the law stands in the favour of the minor and it is submitted that the parallel position ought to be reflected in the law of reunion."

Partition and Reunion both involve the right and interests of a minor in a Joint Hindu family but both these concepts have provided differing rights to the minor for the same.

This can lead to many problems for the minor as a minor, as if a partition is affected to which the minor is a party too, and if in future the father of the minor wants to reunite with the family, this won't be possible by law as the minor isn't competent to enter into an agreement for reunion. Thus, the major family member won't be able to get his minor child to become a part of the family again but will only be possible after he attains majority.

This problem exists due to lack of clarity due to absence of judicial decision on this particular aspect of Hindu Joint family.

Conclusion
The conclusion drawn from the above study is that the position of minor in the current legal framework on reunion works for the detriment of the minor child and this issue needs to be taken up by the judiciary and it is their duty to lay down a strong and unambiguous precedent to provide safeguard and enable the minor in becoming a part of reunion agreement and to have the right to challenge it as well, By doing this the Minor will be protected and also his rights will be in line with the current social and legal conditions.

End-Notes:
  1. AIR 1962 SC 287.
  2. (1923) LR 50 IA 192.
  3. (1903) LR 30 IA 130.
  4. AIR 1965 Mad 409.
  5. AIR 1928 Lah 122.
  6. 135 ITR 673 (1982).

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