RADHAKRISHNA MURTHY Vs. SUBBAIAH

JUDGEMENT

(1.) Our learned brother, Madhava Reddy, J., has granted leave, while dismissing Second Appeal 71 of 1972, affirming the concurrent decision of the courts below. That is why the L.P.A. has been preferred. The question posed is whether the reunion of the family is valid in law.

(2.) It is necessary to note the material facts of the case before we enter upon the discussion on the question raised. On behalf of two sons, who are members of a Hindu undivided family O.S. 233 of 1954 was filed in the District Munsifs Court, Repalle against their father, for partition, when they were still minors. A preliminary decree was passed on 20th of December, 1954 directing partition as prayed for. For reasons best known to themselves, their next friend and guardian, subsequently for some time even after both of them had become majors, no proceedings were taken for passing a final decree. It was one decade after the preliminary decree , that is, in 1964 that I.A. No. 1489 of 1964 was filed by both the plaintiffs for passing a final decree. The father-respondent kept quiet for reasons which we can easily visualise. Resistance to the passing of the final decree came from respondents 2 and 3. Respondent 2 happens to be the owner of some land which had been given to lease to the father subsequent to the preliminary decree. Respondent 3 is a creditor. Their case was that there was reunion between the father and two sons, and consequently, no final decree could be passed on the basis of the preliminary decree made on 20/12/1954. The very factum of the reunion was in dispute before the courts below. On a thorough examination of the evidence on record, the courts found that there was in fact a reunion. This finding was affirmed by our learned brother as well. But then the validity of the reunion was also challenged. Sri T.H.B. Chalapati appearing for Sri A. Hanumantha Rao, learned counsel for the appellant (only, the first plaintiff has chosen to file the L.P.A.) contended that he cannot challenge the unanimous view of the courts below and of our learned brother holding that there was in fact a reunion. He limits his challenge only to its validity.

(3.) His contention in this behalf is that the preliminary partition was effected through a decree passed by a court and that could be set at naught only by another order of the Court. We, however, see no justification or valid basis for this argument. What is required to constitute a reunion amongst the separated members of a Hindu family is an agreement amongst the members who are competent to enter into an agreement to reunite. The agreement to reunite may manifest itself through writing or may be inferred from the circumstances of the case. We may here usefully refer to the relevant passage in Mullas Hindu Law, 14th Edition, paragraph 344 :