JUDGMENT 1. This is a defendant's appeal arising out of judgment and decree passed by Additional District Judge, Sagar, in Civil Appeal No.1-A/89 dated 30.4.1990 by which the judgment and decree passed by the trial Court, the Civil Judge Class I, Khurai in Civil Suit No. 117-A/82 dated 18.8.1986 was reversed and the suit of the plaintiff was decreed. 2. This appeal was admitted on 26.7.1991 on the following substantial question of law: "1. Whether, the finding of the lower appellate Court that there was reunion between the parties after the death of their father has been rendered ignoring the material piece of evidence of the plaintiffs? 2. Whether, the decree passed by the lower appellate Court in favour of the respondents No.1 and 2 ensures to the benefit of respondents No.3 and 4 also, though they had not filed any appeal?" 3. Learned counsel appearing for the appellants submitted that it is an admitted fact that the father of the parties Udaijeet and his sons were separated by a partition in the year 1951. Thereafter a land was purchased by the plaintiffs along with Udayjeet. In the absence of any evidence in respect of reunion of the family the property of Udayjeet shall devolve after his death on all the legal heirs of Udayjeet and the plaintiff alone cannot succeed the property. The trial Court after considering the entire evidence recorded findings that there was no reunion in the family of plaintiff Brindawan and Udayjeet, which finding has been erroneously reversed by the appellate Court. 4. Reliance is placed on apex Court decision in Bhagwan Dayal v. Mst. Reati Dubey [ AIR 1962 SC 287 ], and submitted that in the absence of proof of reunion the appellate Court erred in decreeing the suit of the plaintiff-respondent. 5. Shri Agarwal, learned counsel appearing for the plaintiff-respondents supported the judgment and decree passed by the appellate Court and submitted that in paragraph 5 of the plaint the plaintiff has specifically pleaded that there was a reunion of plaintiff Brindawan and late Udayjeet. This fact was not denied by the defendants in the written statement and the appellate Court has taken into consideration of this omission. That plaintiff and his independent witnesses categorically stated in his statement that Udayjeet before his death was living with Brindawan plaintiff No.1 who was taking care of him and also his lands. This fact was not denied by the defendants in the written statement and the appellate Court has taken into consideration of this omission. That plaintiff and his independent witnesses categorically stated in his statement that Udayjeet before his death was living with Brindawan plaintiff No.1 who was taking care of him and also his lands. In the absence of any contrary evidence there was reunion of Udayjeet and Brindawan and the plaintiffs' suit has been rightly decreed by the appellate Court. 6. In this case the sole question for the consideration of this Court is whether there was a reunion of plaintiff No.1 Brindawan with his father Udayjeet and whether on the basis of the alleged reunion other plaintiffs and defendants would not get any right in the property of Udayjeet, purchased by sale-deed Ex.P-6 dated 27.6.1956. 7. The conditions and ingredients of reunion have been considered by the apex Court in Bhagwan Dayal (supra), wherein the apex Court held thus: "22. For the correct approach to this question, it would be convenient to quote at the outset the observations of the Judicial Committee in Palani Ammal v. Muthuvenkatachala Moniagar, 52 Ind. App. 83 at p.86 [AIR 1925 PC 49 at p.51]. 'It is also quite clear that if a Hindu family separates, the family or members of it may agree to reunite as a Hindu family, but such a reuniting is obvious reasons, which would apply in cases under the law of the Mitakshra, very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Balabux Ladhuram v. Rukhmabai, 30 Ind. App. 130 (PC).' 23. It is also well settled 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 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. 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 reunion or ordinary joint enjoyment cannot sustain a plea of reunion. The legal position has been neatly summarized in Mayne's Hindu Law, 11th Edn., thus at p.569 : '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 it, it is necessary to show, not only that the parties already divided, lived or traded together, but that they did so with the intention of thereby altering their status and of forming a joint estate with, all its usual incidents. 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.' As we give our full assent to these observations, we need not pursue the matter with further citations except to consider two decisions strongly relied upon by the learned Attorney General, Venkataramayya v. Tatayya [ AIR 1943 Mad. 538 ], is a decision of a Division Bench of the Madras High Court. It was pointed out there that mere jointness in residence, food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest unless an intention to become reunited in the sense of the Hindu Law is clearly established. The said proposition is unexceptionable, and indeed that is the well settled law. But on the facts of that case, the learned Judges came to the conclusion that there was a reunion. The partition there was effected between a father and his sons by the first wife. One of the sons was a minor. The question was whether there was a reunion between the brothers soon after the alleged partition. But on the facts of that case, the learned Judges came to the conclusion that there was a reunion. The partition there was effected between a father and his sons by the first wife. One of the sons was a minor. The question was whether there was a reunion between the brothers soon after the alleged partition. The learned Judges held that as between the sons there was never any reason for separation inter se, and that the evidence disclosed that on their conduct no explanation other than reunion was possible. They also pointed out that though at the time of partition one of the brothers was a minor, after he attained majority, he accepted the position of reunion. The observations relied upon by the learned Attorney General read thus: 'In our view, it is not necessary that there should be a formal and express agreement to reunite. Such an agreement can be established by clear evidence of conduct incapable of explanation on any other footing.' This principle also is unexceptionable. But the facts of that case are entirely different from those in the present case, and the conclusion arrived at by the learned Judges cannot help us in arriving at a finding in the instant case. 24. Before we consider the evidence, we would like to make some general observations. In the plaint, the case of reunion is mentioned as an alternative case; further the plaint does not give the date of the alleged agreement to reunite or even the necessary and relevant particulars. The plea is stated in the following words: 'That even if it were assumed against facts strictly without prejudice to any plea herein taken, that there was separation between Pandit Lachman Prasad's issues after his death, still in view of the conduct of Pandit Kashi Ram and Raghubar Dayal during their lifetime, and the fact that the plaintiff, Pandit Raghubar Dayal and Pandit Kashi Ram (and after the latter's death the first two) worked jointly and lived and messed together and acquired, owned and possessed the entire properties jointly by their joint labour, which amounted to reunion the plaintiff would still be the sole owner of the entire property in any view of the case.' The plaintiff's case is that there was no partition of the larger family at all; and on that case no question of reunion arises. Further, he does not say that a reunion has taken place by agreement; but he asks the Court to hold that there was a reunion on the ground that the conduct of the parties, amounted to a reunion. The plea, to say the least, indicates that the plaintiff himself is not clear of his case." 8. It is settled that if a joint Hindu Family separates, the family and other 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 Mitakshara of very rare occurrence and when it happens it must be strictly proved as any other disputed fact is proved. It is well settled that to constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the aspect of a reunion that there shall be an agreement between the parties to reunite any estate with an intention to revert to their family status of members of joint Hindu family. The aforesaid agreement need not be expressed but may be gathered from the conduct of the parties alleged to have reunited. The conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. The burden is heavy on a party asserting reunion, and ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. 9. Now in the light of the law laid down by the apex Court the factual position in the present case may be seen. The family tree of all the parties is as under: Udavieet Brindawan Baldwansingh Harprasad Gulabsingh Amarsingh Harisingh Ratansingh Khetsingh Chaturbhuj (died) 1 2 3 4 5 6 7 8 9 (No.1 to 4 plaintiffs) Phulwa Bai (widow) Ramgopal Govind Dayashankar (all defendants) 10. The suit was filed on 19.1.1979 for declaration and permanent injunction on the ground that in the year 1951 there was an oral partition in the lifetime of Udaijeet. The properties were divided between father Udaijeet and all his sons and after the partition, the lands were recorded in the revenue papers as per the share obtained by each person, and the joint Hindu family status had come to an end. The properties were divided between father Udaijeet and all his sons and after the partition, the lands were recorded in the revenue papers as per the share obtained by each person, and the joint Hindu family status had come to an end. In the year 1956 the plaintiffs purchased 39.777 acre land by a registered sale-deed from Shiv Prasad. The aforesaid land was purchased by the plaintiffs from their own income. As the property was purchased after partition of the parental property so in this land there was no right or share of the defendants who are real brothers of plaintiffs. The plaintiffs in the sale-deed also included name of their father while the land was not purchased by him nor any money was given by him. The aforesaid entire land is of plaintiffs who are in possession of the land. 11. That the defendants in the revenue papers have got their name mutated. Now they are quarrelling for the possession and claiming their share in the property. Criminal case was also registered. With the aforesaid allegations the suit was filed for declaration and permanent injunction against the defendants. Thereafter the plaint was amended by the plaintiffs by filing an application dated 11.2.1990 which was allowed by the trial Court on 29.2.1980 on payment of cost of Rs.20/-. The amendment was incorporated and the defendants also amended the pleadings consequentially. By this amendment the plaintiff had pleaded that name of their father Udayjeet was included by way of owner in the sale-deed on a condition that if he pays Rs.400/- then he will be entitled for 3 acres of the land. If the aforesaid amount is not paid then the land shall remain of the plaintiffs and his name shall be treated as Benami. Udayjeet had not paid money so he had not got any share. Nearabout after one year of the purchase of the land there was reunion of family of plaintiff No.1 and Udayjeet and they were reunited in all manners in food and agricultural and were residing jointly. In para 4 of the plaint the plaintiffs pleaded that in the land purchased by the plaintiffs, plaintiffs No.2, 3 and 4 were having share of three acres of each, while remaining land was of plaintiff No.1. In para 4 of the plaint the plaintiffs pleaded that in the land purchased by the plaintiffs, plaintiffs No.2, 3 and 4 were having share of three acres of each, while remaining land was of plaintiff No.1. The defendant though filed consequential amendment but had not specifically denied the pleadings amended in para 5 of the plaint, in respect of reunion of plaintiff No.1 and Udayjeet, though denied all the allegations of the plaint. The trial Court framed issue No.6 in this regard which reads thus: "Whether Udayjeet after partition reunited with the plaintiff'. In the evidence the plaintiff Brindawan appeared as PW 1 but other plaintiffs had not appeared in the witness box. His para 2 of the evidence is in respect of reunion in which he had stated thus: "I asked my father that in the sale-deed we have included your name and if you require the land we will take Rs.400/- and will give 3 acres of land but he had not paid money so no land was given to him. My father was not in possession of the land. Thereafter he became disabled and after one year of purchase of the land he was residing with me. The land fell into his share was cultivated by me. Father has died 10 to 12 years back." 12. PW3 in his statement in paras 1 and 3 has also stated that Udayjeet before his death was residing along with Brindawan. But Brindawan has not stated that there was a reunion of the family by any agreement and he and his father were forming a joint Hindu family. If his entire statement is taken into consideration, the factual position reveals that even after one year of purchase of the land, the plaintiffs were demanding Rs. 400/- from their father because his name was included in the sale-deed and only on receiving of the aforesaid amount they were agreeing to give three acres of the land to the father. This shows that up till that date there was no reunion in the family and they were residing separately and treating father as separate unit. All the parties were separated by a partition. When Udayjeet became disabled because of the old age and decided to reside or was residing with his elder son Brindawan then it was the natural consequence. This shows that up till that date there was no reunion in the family and they were residing separately and treating father as separate unit. All the parties were separated by a partition. When Udayjeet became disabled because of the old age and decided to reside or was residing with his elder son Brindawan then it was the natural consequence. The father after becomes old, infirm or disabled may expect from his sons to take care of him. In the evidence it has come on record that the mother of the plaintiff died before the death of father and father was alone at the time of his death. 13. In these circumstances, if father had chosen to reside with his elder son who was taking care of him for food and his agriculture, then it cannot be said that there was reunion of the family. It was only a pious duty and obligation of the elder son or any other son to take care of his or their old father. When the father started residing with Brindawan, the land which fell into the share of Udayjeet was taken care of by Brindawan, as Udayjeet was residing with him. This by itself cannot be treated as an incidence of reunion. There must be some agreement specific or implied between the parties which may be gathered from the circumstances. The plaintiff in his statement has not said anything in this regard. Fact that separated coparceners were living together or plaintiff was taking care of agricultural lands of Udayjeet will not amount reunion as held in Bhagwati Prasad v. Rameshwari [AIR 1951 SC 72]. The judgment of the apex Court in Bhagwan Dayal (supra), is very specific which requires heavy burden on a person who claims reunion of a partitioned family. The plaintiffs in this case have failed to prove any agreement, conduct or circumstances showing reunion of Brindawan with his father Udayjeet. The father Udayjeet was having landed property, the share got by him in the partition of the joint Hindu family property and the property purchased by him along with the plaintiffs by sale-deed dated 27.6.1956. Mere joint residing, or providing food and taking care of lands in the old age of father cannot be treated as reunion of family to deprive other brothers to succeed property of the father. Mere joint residing, or providing food and taking care of lands in the old age of father cannot be treated as reunion of family to deprive other brothers to succeed property of the father. The consequence on his death will be that all the sons will get equal share. If one of his sons, Brindawan wanted to succeed his entire property on the basis of alleged reunion, then heavy burden was on the plaintiff to prove the aforesaid reunion as held by the apex Court in Bhagwan Dayal (supra). In this case the plaintiff has utterly failed to prove reunion with Udayjeet and in the absence of this, the trial Court had rightly dismissed the suit. The appellate Court without considering aforesaid findings reversed the judgment, which is not sustainable in law. 14. Udayjeet purchased the property along with 4 plaintiffs. He was having one fifth share in the property and after his death all his 9 sons were entitled to succeed his share, equally. The aforesaid consequence was in accordance with law, and the plaintiffs have failed to prove that after the death of Udayjeet, plaintiff Brindawan alone was entitled to get the property of Udayjeet on the basis of alleged reunion. Consequently this appeal is allowed and suit of plaintiffs is dismissed, with no order as to costs.