Judgment : Plaintiff in O.S. No.68 of 1987 on the file of Sub Court, Nagapattinam, is the appellant. 2. The suit filed by him was one for partition claiming one-third share in the plaint items. The material averments, which are necessary for the proper disposal of the second appeal, could be summarised as follows. 3. The plaintiff and the 1st defendant are the sons of the late Packirisami Pillai, a native of Thillaiyadi village. It is said that he possessed vast items of properties and he left for foreign countries, while he was young and came back to start a small business, which he was doing for some years. Apart from the plaintiff and the 1st defendant, he had one more son, who is not a party to the litigation. Besides, he had a daughter, who was given in marriage. The 2nd defendant in the suit is their mother. .4. It is the case of the plaintiff that the 1st defendant is a graduate teacher, decently employed and the plaintiff is conductor in Tiruvalluvar Transport Corporation. The third son, who is not a party to the suit, was looking after the cultivation, but he went to bad habits and was demanding a partition. He took to violence and therefore, he came for a settlement. They decided to give him his share. The allegation is that trouble made by the third son went to that extent that mediators had to intervene for bringing peace among the family members. The 1st defendant also took initiative, being the eldest son and due to his efforts, he could convince his youngest brother. The parties agreed for allotting him his share on the undertaking that he must execute a release deed in respect of remaining properties. As the stamp duty was heavy, it was agreed that a deed of partition be executed amongst themselves. At that time, it was decided to dispose of the ancestral house and punja lands. At that time. Packirisami was keeping indifferent health. It was also agreed that if any new property is acquired from out of the sale proceeds, it should also go to all the persons. On that understanding, a deed of partition was executed on 13. 1980. It is said that on executing the partition deed, the trouble shooter that is the third son went out of the family. It was also agreed that if any new property is acquired from out of the sale proceeds, it should also go to all the persons. On that understanding, a deed of partition was executed on 13. 1980. It is said that on executing the partition deed, the trouble shooter that is the third son went out of the family. The family house was sold at a very high price, as also the nanja land in the name of Packirisami and the properties in the name of the 2nd defendant mother, was also alienated. The amounts so realised from out of those transactions, were utilised for the purchase of new properties and a portion of it was kept in safe custody with the 1st defendant some amounts were utilised for discharging certain antecedent debts and also for the purchase of certain jewellery to the 2nd defendant. 5. In pursuance of the agreement, it is said that the 1st defendant purchased property as per the sale deed dated 29. 1981. After the purchase, the father and the 2nd defendant came to reside in the house purchased in the name of the 1st defendant. The third defendant in the suit is a lessee of a portion of the house. It is said that the 1st defendant has not paid anything for the purchase of the property. Packirisami also died in June, 1987 and the funeral expenses also met by the plaintiff. It is the case of the plaintiff that since that sale deed was taken in the name of the 1st defendant, it belongs to the family, over which he has got a share. After the death of the father, the 1st defendant did not want to enjoy the properties with others and even though demands were made to have a partition, the same was also not complied with. The plaintiff therefore seeks a partition of his one-third share in the plaint items. 6. In the written statement filed by the 2nd defendant, the mother, she fully supported the case of the plaintiff. 7. The contesting defendant was the 1st defendant. According to him, the partition deed was executed between the brothers. The sale deed of the year 1981 was taken by him from out of his own funds and neither the plaintiff nor any other person is entitled to any share therein. 7. The contesting defendant was the 1st defendant. According to him, the partition deed was executed between the brothers. The sale deed of the year 1981 was taken by him from out of his own funds and neither the plaintiff nor any other person is entitled to any share therein. He also disputed the fact that the earlier partition deed is intended only to relieve their younger brother, the third son, from the family. According to him, the partition is an out and out partition and after that deed, there is no joint family or that the plaintiff and the 1st defendants are undivided members of a joint Hindu family. He further contended that after the partition, the plaintiff or the 2nd defendant cannot claim any share over the suit properties. He prayed for the dismissal of the suit. 8. The trial court, after taking oral and documentary evidence decreed the suit. It was of the view that the properties were family properties and therefore, the plaintiff is entitled to a share over the same. For the said purpose, it believed the accounts, which is alleged to have been written by the father. It was also of the view that for purchasing the plaint property, common funds were utilised. The plaintiff was given a preliminary decree for partition. .9. Aggrieved by the judgment, the 1st defendant preferred A.S. No.219 of 1993 on the file of the District Court, Nagapattinam. The lower appellate court reconsidered the entire evidence again, both on facts and on law and came to a different conclusion. It found that after partition, there was no re-union. After partition, the plaintiff cannot claim that he continues to be joint unless the case of re-union is proved on facts. It also found that the finding of the trial court that the property belonged to the joint family and the plaintiff continued to be a member of the family, is not legally sustainable. It also held that if it was the case of the family property, naturally the daughter is also entitled to a share, since, according to the case of the plaintiff, father has also contributed to the sale proceeds, which belonged to him. The statement of the plaintiff that the daughters are not entitled to a share, belied the case of joint family. The statement of the plaintiff that the daughters are not entitled to a share, belied the case of joint family. It further came to the conclusion that if it is the case of contribution by the members, a duty was cast on the plaintiff as to what was his contribution and the contribution made by the other members. The court held that no evidence was let in to prove the same. Regarding the accounts, the lower appellate court found that they are all manipulated to suit the requirements of the plaintiff and therefore, it cannot be acted upon. The inconsistent case pleaded by the plaintiff as one of joint family and the other that all contributed, cannot stand, was taken note of by the court below. Accordingly, the suit was dismissed. It is against the said judgment, the plaintiff has preferred the above second appeal. 10. The following questions of law came to be framed at the time of admission of the second appeal: .(1) Whether, the suit properties are joint family properties of the appellant and respondents 1 and 2? .(2) Whether, Exs.A-22 to A-29 have been correctly appreciated by the lower appellate court in rejecting the claim of the appellant for partition? .(3) Whether the suit is barred under Benmai Prohibition Act? 11. The question as to whether the plaint properties are joint family properties or not, would depend upon the evidence of the plaintiff relating to the nature of acquisition under Ex.B-4 or Ex.A-6. 12. In this case, the plaintiff has admitted that there was a partition between the members of the family. Once the family was got divided and that too, by executing a registered partition deed, unless the plaintiff has a definite case of re-union, there cannot be any joint family acquisition. The only pleading in that regard is that even though the partition deed was entered into, the intention was only to relieve the third son from the family, and the plea is that it is a collateral agreement and the parties intended to continue remain joint, excluding the third son. If it is a collateral agreement before Ex.A-1 partition deed, such a contention will be a bar under Sec.92 of the Evidence Act. Ex.A-1 do not say anything about the agreement. The plaintiff has no case that the document was not acted upon. If it is a collateral agreement before Ex.A-1 partition deed, such a contention will be a bar under Sec.92 of the Evidence Act. Ex.A-1 do not say anything about the agreement. The plaintiff has no case that the document was not acted upon. Even the conduct of the 1st defendant and his father who alienated the properties, obtained under Ex.A-1 document, the various other documents also go to show that after Ex.A-1, the partition deed, the parties did not have any intention to have a re-union. 12 A. In Bhagwan Dayal v. Mst.Reoti Devi, A.I.R. 1962 S.C. 287: (1962)1 S.C.J. 348. their Lordships of the Supreme Court said that there is no presumption that when one member separates from others, the latter remain united. Their Lordships also considered how strong the evidence should be to prove the case of re-union. This is what their Lordships have held in para.22 of the judgment. ‘It is also well settled that to constitute a re-union 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 remain 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.‘ What was the evidence after Ex.A-1 regarding reunion, even the plaintiff do not allege or proved the same. In Mulla’s Hindu Law (15th Edition), Secs.342 to 344 deal with the same. The learned Author says that there must be intention to re-unite, and after partition, some members live together will not be sufficient to show that there was reunion. The learned Author says thus: ‘342. who may reunite: A reunion in estate properly so called can only take place between persons who were parties to the original partition. It would appear from this that a reunion can take place between any persons who were parties to the original partition. Only males can reunite. 343. The learned Author says thus: ‘342. who may reunite: A reunion in estate properly so called can only take place between persons who were parties to the original partition. It would appear from this that a reunion can take place between any persons who were parties to the original partition. Only males can reunite. 343. Effect of reunion: The effect of a reunion is to remit the reunited members to their former status as members of a joint Hindu family. 344. Intention necessary to constitute reunion: To constitute a reunion, there must be an intention of the parties to reunite in estate and interest. In Bhawan Dayal v. Reoti Devi, the Supreme Court pointed out that it is implicit in the concept of a reunion that there shall be an agreement between the parties to reunit in estate with an intention to revert to their former status. Such an agreement may be express or may be implied by the conduct of the parties. The conduct must be of an incontrovertible character and the burden lies heavily on the party who assets reunion." In Mayne’s Hindu Law and Usage, 14 Edition, 1996, at page 841, the learned Author says what is meant by a reunion and at page 842 about the evidence which is necessary to substantiate the same. ‘Reunion - Mitakshara - Lastly, on the subject of Reunion, the rules in the Mitakshara are: ‘Effects, which had been divided and which are again mixed together, are termed reunited. He, to whom such appertain, is a reunited parcener. ‘That cannot take place with any person indifferently: but with a father, a brother or a paternal uncle’: as Brihaspati declares: ‘He, who being once separated, dwells again through affection with his father, brother or a paternal uncle is termed reunited with him. The express mention by Brihaspati of father, brother and paternal uncle has been held to be restrictive and not merely illustrative. In Ram Narain Chaudhury v. Pan Kuer the Privy Council held: (1) that the text of the Mitakshara is clear and unambiguous and excludes recourse to the other authorities, and (2) that in a Hindu family governed by the Mitakshara, a reunion is valid only if it is with a father, brother or paternal uncle and only if it is between parties to the partition. A reunion under the Mitakshara law is therefore legally possible only as; (1) between father and son; (2) between brothers, and (3) between nephews and paternal uncle.‘ ..... ‘Evidence: As the presumption is in favour of union until a partition is made out, so after a partition the presumption would be against a reunion. To establish ii, it is necessary to show not only that the parties already divided, lived or traded together, but they did so with the intention of thereby altering their status and of forming a joint estate with all its usual incidents. Except in the case of reunion, a mere fact that the separated co-parceners choose to live together or jointly for the purpose of business or trade or dealings with properties would not give them the status of coparceners under the Mitakshara Law. It requires very cogent evidence to satisfy the burden of establishing that by agreement between them the divided members of the 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. The circumstance that about 6 or 7 years after the alleged reunion, they allowed the partition proceeding to go on so as to separate between themselves their own property, would render the reunion very improbable. It is however necessary that both parties to an agreement to reunite should be possessed of property, which belonged to the family before partition. Even if one separated member has dissipated the whole of his share of the family estate, a reunion between him and his father could in law take place." 13. The lower appellate court has correctly held that the plaintiff has miserably failed to prove the re-union. The only circumstance against the plaintiff, that there cannot be any re-union is the fact that he has not impleaded his youngest brother, that is, the third son and his sisters. Admittedly, the father died after Ex.A-1 that is in 1980. If there was a reunion, it follows that the father becomes a member of the family and his share in the properties, has to devolve on his widow and all his children. The plaintiff cannot, therefore, claim one-third share. That itself is sufficient to hold the case of reunion against the plaintiff. 14. If there was a reunion, it follows that the father becomes a member of the family and his share in the properties, has to devolve on his widow and all his children. The plaintiff cannot, therefore, claim one-third share. That itself is sufficient to hold the case of reunion against the plaintiff. 14. The lower appellate court has further held that there is absolutely no evidence to show any contribution made by the plaintiff to the purchase of the property. It is in evidence that after his father sold the family house, various debts were discharged, mother purchased ornaments for herself and there would have been nothing left. At the same time, the 1st defendant’s case was he was employed decently and that the document is also in his name. If it was the case of reunion or the father intended that all the male members should benefit by the future acquisi-tion, nothing prevented the parties from getting the document in the name of all the members or at least in the name of the father. How the document stands in the name of the 1st defendant remains unexplained by the plaintiff. Even the consideration alleged to have been paid for the purchase of the plaint scheduled properties, is not known to the plaintiff. The case is inconsistent and when this inconsistency was brought to his notice, he said that the real consideration is not mentioned in the document is something more. The finding of the court below that the plaintiff has miserably failed to prove reunion and the alternative case that the property also belonged to him as a tenant-in-common, is also without any basis. 15. The lower appellate court has further found that much reliance placed by the trial court on the accounts, has caused miscarriage of justice. In fact the various manipulations and corrections have been found in the accounts. The court below has minutely gone into the accounts and has rightly held that most of the items stated thereon could not be believed, nor the same explained by the plaintiff. Counsel for the appellant submitted that even after 1980 and subsequent to the purchase under Ex.A-6, the parents continued to live with the 1st defendant and only recently the mother has gone out of him inimically disposed of towards him. I cannot agree with this submission. The 1st defendant is the elder son. Counsel for the appellant submitted that even after 1980 and subsequent to the purchase under Ex.A-6, the parents continued to live with the 1st defendant and only recently the mother has gone out of him inimically disposed of towards him. I cannot agree with this submission. The 1st defendant is the elder son. After all, the father in his old days wanted to live with the elder son. The mother was also with him. There is nothing strange, as it is not uncommon that the eldest son is duty bound to protect the parents. The benevolence of the 1st defendant should not be exploited and a claim for a share could not be entertained only on the basis of the same. 16. The finding of the lower appellate court is based on facts only. No substantial question of law really arises. The second appeal is without merit and the same is dismissed with costs.