Judgment : 1. 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. Adhimoolams 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 predeceased 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 l/3rd share from the joint family properties for which they filed the present suit. 2. Even before filing written statement, the first defendant died. 3. Second defendant filed a separate written statement wherein he virtually supported the case of the plaintiffs. 4. 8th defendant filed a separate written statement which was adopted by defendants 3 to 11. 5. 2. Even before filing written statement, the first defendant died. 3. Second defendant filed a separate written statement wherein he virtually supported the case of the plaintiffs. 4. 8th defendant filed a separate written statement which was adopted by defendants 3 to 11. 5. 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 l/3rd share as claimed by them. 6. Eighth plaintiff was examined as P.W.I and she also examined 4 more witnesses in support of the plaintiffs 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. 7. I have heard Mr.K.Raghunathan, learned counsel for the appellants and Mrs.Prabha Sridevan, learned counsel for the respondents. 8. 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 atleast 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 v. Rama Bai, A.I.R. 1957 Mad. 269. 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 atleast 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 v. Rama Bai, A.I.R. 1957 Mad. 269. (2) Manicka Gounder v. Arunachala Gounder, 77 L. W. 409. 9. 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. 10. 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 explains 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 atleast 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. 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 v. Rama Bai , A.I.R. 1957 Mad. 269 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 v. Rama Bai, A.I.R. 1957 Mad. 269 has not been disturbed: ”From what we have stated above, it will follow that Manorama Bai v. Rama Bai , A.I.R. 1957 Mad. 269 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. 11. 269 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. 11. However, the learned counsel for the respondents relying on a decision reported in Bhagwan Dayal v. Booli Devi Bhagwan Dayal v. Booli Devi Bhagwan Dayal v. Booli Devi, A.I.R. 1962 S.C. 287: (1962)1 S.C.J. 248 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 held 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 the light of the said principle in that case, Their Lordships have held 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. 12. 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: "TAMIL" 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 Ammal as well as Rukmani Ammal. However, as rightly contended by the learned counsel for the respondents, absolutely there is no evidence regarding Parvathy Ammal 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 , A.I.R. 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 there 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. 13. Under these circumstances, I do not find any merit in the appeal and the same is dismissed with costs.