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Hindu Joint family even if partitioned can revert back and reunite to continue the status of joint family, Supreme Court

The SC on June 30, 2021 {R. JANAKIAMMAL vs. S.K. KUMARASAMY (DECEASED)} held that no   sooner   a   question relating to lawfulness of the agreement or compromise is raised   before   the   court   that   passed   the   decree   on   the basis   of   any   such   agreement   or   compromise,   it   is   that court and that court alone who can examine and determine that question.

It was also observed by the Bench, comprising of Justice Ashok Bhushan and Justice R. Subhash Reddy that   a party   to   a   consent   decree   based   on   a   compromise   to challenge the compromise decree on the ground that the decree was not lawful, i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been   held   to   be not maintainable. It was held that 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.  

In the present case, the Supreme Court   did   not   find   any   error   in   the   judgment   of   trial court and High Court holding that Suit was barred under Order XXIII Rule 3A CPC.

However, it was held that the general principle is that   every   Hindu   family   is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct.



The Supreme Court held that the concept of reunion in Hindu Law is well known. It was further held that Hindu Joint Family even if partitioned can revert back and   reunite   to   continue   the   status   of   joint   family. It was held that the acts of the parties may lead to the inference that parties reunited after previous partition. 

It was observed in present case by the SC that it  is   the   case   of   the   defendant   No.1   that   the compromise   decree   dated   06.08.1984   is   nothing   but implementation   of   agreement   dated   08.03.1981.   It was held that it  is, thus,   clear   that   the   case of   D­1   is   that   there   was partition   of   all   properties   standing   in   the   names   of three   branches   and   allocated   to   different   branches   on 08.03.1981,   which   has   been   subsequently   implemented   by consent   decree   dated   06.08.1984. The SC held that when   the   D­1   comes   with   the   case   that   there   was partition   on   08.03.1981   of   all   immovable   properties standing   in   the   names   of   three   branches,   which   was implemented on 06.08.1984, the conclusion is irresistible that family was joint and had the three branches were not part   of   joint   Hindu   family,   there   was   no   occasion   for attempting any partition on 08.03.1981 as claimed by D­1. It was held that the fact that defendant No.1 is coming with the case that there   was   partition   on   18.03.1981   itself   proves   that three branches were joint till then as per case of D­1 himself.

Thus, the SC held that 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. It was held by the SC that both the Courts below although accepted the partition dated   18.03.1981   as   pleaded   by   D­1   but   erred   in   not considering   the   consequence   of   such   pleading. It was held that 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. It was also held that the theory set up by D­1 that all the three branches were separate after 07.11.1960   is   denied/belied   by   claim   of   partition   on 08.03.1981.

The SC further held that Tatabad residential property was for the benefit of all the three branches which is further proved from the fact that the consideration for the said amount was not paid by DW­1 from his separate account or in cash. It was held that the   amount   was   drawn   from   the   private   limited   company Swamy and Swamy Plantation Private Limited in which all the three branches were shareholders and Directors. It was held that the Swamy and Swamy Plantation Company had not purchased the residential   property   at   Tatabad   for   the   company.  It was further held that  the Swamy   and   Swamy   plantation   private   company   is   not   the owner   of   the   residential   property   and   the   residential property at Tatabad is a joint family property for the benefit of all the three branches.

The SC thus concluded that all three branches have equal share   in   the   Tatabad   residential   property and this residential property being not a part of O.S.No.37 of 1984 (in which compromise decree was passed), there is no bar in seeking partition of   the   said   property   by   the   plaintiff.   Accordingly  the SC declared that plaintiff/defendant No.7, defendant No.1 and defendant No.4 are entitled to 1/3rd share in the suit property, and the appeals as such were partly allowed.

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