DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW.

SESSION-2017-18

SUBJECT: FAMILY LAW

PROJECT ON:

RE-OPENING OF PARTITION

SUBMITTED TO- SUBMITTED BY-

MS. SHAKUNTLA ‘SANGAM’ SAURABH TIWARI

ASST.PROFESSOR (LAW) ENROLMENT NO.-160101132

RMLNLU SEMESTER-4TH

SECTION-B.

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 ACKNOWLEDGEMENT

I would take great pleasure in thanking Assistant Professor MS. SHAKUNTLA ‘SANGAM’ for
her infallible support all through the course of this project. This Endeavour would not have
been in its present shape had she not been there whenever I needed her. She has been a
constant source of support all the while.

Also I would like to extend my sincere thanks to the library staff for always helping me out
with finding excellent books and material almost every time I needed. They too have been a
constant support system in the completion of this project.

I would also like to thank my friends for their timely critical analysis of my work and special
feedback that worked towards the betterment of this work.

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 RESEARCH QUESTION

 What are the different circumstances under which a partition can be reopened?

 Can females re-open the partition?

 What are the views of judiciary?

RESEARCH METHODOLOGY

The research methodology adopted for making the project is doctrinal method. It includes
library research, and making references to magazines and articles published in newspaper and
internet sources.

SCOPE OF THE RESAERCH

The project will provide more clear idea about the conditions in which partition can be re-
opened under Hindu law. It will provide information regarding role of females in re-opening
of partition. This project shall be useful in studying the views of Indian judiciary on re-
opening of partition.

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 INTRODUCTION

Partition is the severance of the status of Joint Hindu Family, known as Hindu Undivided
Family under tax laws. Under Hindu Law once the status of Hindu Family is put to an end,
there is notional division of properties among the members and the joint ownership of
property comes to an end.

A partition, once in effect, is usually final and binding on the parties and cannot be opened at
the whims and pleasures of the parties and cannot be opened at the whims and pleasures of
the parties. The reason is that upon partition, the erstwhile coparceners hold their share as
their separate properties, with an exclusive and valid title to them. They may enter into
transaction related to them, so as to create valid titles in favour of third parties. However,
there may situations where it might become imperative to undertake take a re-distribution
properties, or else gross injustice will be caused to the family members.1

Manu says:

“Once in the partition of inheritance made, once is a damsel given in marriage; and once does
a man say ‘I give’, these three acts of good men are done once for all and are irrevocable.”

A partition, therefore, is generally irrevocable. However, as mentioned above, there could be

situations where a re-opening may be advisable. It may become imperative to have a re-
distribution of properties in order to prevent gross injustice to the members of a family. An
additional distribution also advised by Manu, where more property was subsequently added
or discovered.2

1
PoonamPradhanSaxena, Family Law Lectures, 306,( 2d ed. 2007).
2
Ibid.

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 TYPES OF PARTITION

1. Total Partition

It is the type of partition in which the entire family property is being divided amongst the
coparceners. After the total; partition takes place, the Hindu Undivided Family ceases to
exist. All property is being divided among the coparceners of the Hindu Undivided Family.

2. Partial Partition

It is the type of partition which is partial as regards either the person constituting the joint
family or as regards the properties belonging to the joint family or both. In case of partial
partition, some coparceners may separate from the joint family but other members continue to
be a part of the joint family. In this case as regards the property, there may be a division or
severance of interest in respect of some part of the estate of the joint family, while the rest of
the estate may continue to remain as a part of the property of the joint family.

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 GROUNDS FOR RE-OPENING OF PARTITION

 Addition of property after partition

Where, after a partition has been effected, it is discovered that some properties were left out,
either by mistake or deliberately, due to some fraud or concealment by either a family
member or even by a stranger, or where some properties belonging to the family had been
seized or lost, and were recovered subsequent to the partition, by the family, and in the
interest of the family members, it is desirable that a fresh partition should be made, there can
be a re-opening of the partition. However, if a distribution of the additional properties can be
effectively made without re-opening the earlier partition, then the earlier partition should not
be disturbed and the recovered property should be distributed among the family members.3

 Fraud

When the whole scheme of distribution of properties is fraudulent, it will be ordered to be set
aside, unless the person injured has acquiesced in it with full knowledge of all material facts.
For instance, when worthless assets have been given to some coparceners or as valuable
assets or when a property which does not belong to the family has been allotted to some
coparcener. Or when it is unjust and unfair or detrimental to the interest of minors, partition
will be re-opened.4

 Adopted son

A son adopted to a deceased coparcener by his widow after the partition, is entitled to re-open
the partition if he occupies, in law, the same position as a posthumous son. In such a case he
should be awarded his share in the property, existing at the date of his adoptive father’s death.
He is also entitled to a share in accretions to the family property which remained with the
surviving coparceners.5

 Son in womb

If at the time of partition a son is in the womb and no share is reserved for him, he can get the
partition re-opened.6

 After born son

When the son is conceived and born subsequent to the partition, he becomes a coparcener
with his father, provided he has taken a share and under the old law, was exclusively entitled

3
Ibid.
4
Paras Diwan, Modern Hindu Law, 361,(17h ed. 2006).
5
Ibid.
6
Ibid.

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to inherit the separate properties as well. This rule of sole entitlement to inherit the separate
properties has now been abrogated in light of the provisions of the Hindu Succession Act
1956, which treats a divided and an undivided, son equally in matters of inheritance. Where
the father did not take a share at the time of the partition, an after born son can re-open the
partition and take a share equal to the share of another son.

 Disqualified coparceners

A disqualified coparcener, who recovers from his disqualification after the partition, can get
the partition reopened, if he was an after born son.

 Absentee coparcener

If a t the time of partition a coparcener is absent and no share is allotted to him, he can get the
partition re-opened.7

7
Ibid.

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 POSITION OF FEMALE MEMBERS

Although the ownership of the coparcenary property is with the coparceners only, and a
female member of the joint family can neither be a coparcener, nor claim any title to the
coparcenary property, if and when an actual partition takes place, certain female members in
the joint family are entitled to get a share. This rule is applicable in all the sub-schools of
Mitakshara, except the Dravida or Madras school. In the Dravidas chool, no female gets a
share at the time of partition, but in the rest of the schools of Mitakshara, three categories of
female members are to be given a share. It is noteworthy that these females do not have the
right to ask for a partition and claim their share. They cannot demand a partition of the
property themselves. If either a partition is demanded by a coparcener, or the family
members, by mutual agreement, decide to destruct their joint status, ie, a partition takes place
at the instances of a person who is competent to ask for it, these females have to be allotted
their respective shares. If they die before a partition is effected, their legal representatives
would not be in a position to step into their shoes and claim a share that would have been
allotted to them if they had been alive. If a partition takes place and she, though entitled, is
not given a share, only then is she empowered to reopen the partition and claim her share.8
These three categories of females who are entitled to get a share are:

i) Father’s wife,
ii) Mother, and
iii) Paternal grandmother,

8
PoonamPradhanSaxena, Family Law Lectures, 312, (2d ed. 2007).

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 CASES

Ratnam Chettiar v S M Kappu Swami9

Plaintiffs here alleged that the partition was secured by practising fraud and undue influence
and by suppressing large assets belonging to the family which were taken by their uncle
(Defendant) by taking advantage of the weakness of the plaintiffs’ father who was a person of
weak intellect.

As per trial court, so far as the partition of the moveable properties was concerned which was
done by a separate document and was severable from the partition of the moveable
properties, was neither unjust nor unfair so as to entitle the minors to reopen the partition
after a long period. The same was confirmed by the High Court. The High Court in the
present case made a slight variation in the decree issued by the trial court by setting aside the
directions of the trial court for the appointment of a Commissioner and by quantifying the
value of the disparity in the share of the plaintiffs, by itself.

The Supreme Court, here as regards immovable property rejected to reopen the partition even
though the properties were not actually valued according to the market rate and that a
notional valuation had been given in the partition deed. Supreme Court took this view due to
its policy of not interfering with concurring findings of two courts below. With regard to
partition of moveable property the Hon’ble Supreme Court after making a detailed study also
reached the same conclusion that it was an unequal partition and the silence of the father or
even his acquiescence in allowing his elder brother to swallow the amount was not a prudent
act and it had caused serious detriment to the interests of the minors which he had to protect,
because the minors at that time were members of the Hindu undivided family.

The Supreme Court laid the following propositions:

 A partition effected among the members of HUF with consent cannot be reopened,
unless it is shown that consent is obtained by fraud, coercion, misrepresentation or
undue influence.

 A strict proof of facts is required to reopen the partition because an act inter
vivos cannot be lightly set aside.

 If the partition is done in good faith and in bona fide manner keeping into account the
interests of the minors, the same will be binding upon them.

 If the partition effected between the members of the Hindu undivided family, which
consists of minors, is proved to be unjust and unfair and is detrimental to the interests

9
AIR 1976 SC 1.

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 of the minors the partition can be reopened irrespective of the length of time when the
partition took place.

 Where there is a partition of immovable and moveable properties but the two
transactions are distinct and separable or have taken place at different times, if it is
found that only one of these transactions is unjust and unfair it is open to the Court to
maintain the transaction which is just and fair and to reopen the partition that is unjust
and unfair.

Athilinga Goundar v. Ramaswami Goundar10

In this case a Hindu with two wives had one son by his senior wife and two sons by his junior
wife. All the sons at the time of partition were minors. By the partition one share was allotted
to senior wife with her son and two shares were allotted to junior wife with her two sons.
Father retained a few items for his maintenance without having power of alienation. After his
death the property in his hands were to be divided equally among three sons. Contemplating
the situation of an after-born son the partition deed contained a clause saying, “male children
who might hereafter born out of your loins (the two wives) should be provided for out of the
shares allotted to the respective families”. Here ‘family’ had reference to the two branches
represented by the two wives.

A son who was born to the wife nearly a year after the partition claimed reopening of the
partition. The sons of junior wife resisted the claim by saying that a share had already been
allotted to the father and the after born son was entitled to that share only. The contention of
after born son was that he was entitled to reopen the partition as no share had been set apart
for the father at the partition. The court here distinguished the present case from the case
of Ganpat v. Gopalrao11 where the father had reserved a share himself at the partition. It
therefore allowed the reopening of the partition. It held that the provision for giving a share to
the after-born son by his uterine brother out of the property allotted to him couldn’t qualify
the right of the after-born son to re-open the partition and claim a share in the entire property.

Ramchandra Shrinivas v. Ramkrishna Krishnarao

In this case one Shrinivas had two sons, Ramchandra and Krishnaji. Krishnaji died in 1930.
Shrinivas and Ramchandra effected a partition between themselves on 9-12-1932. This was
followed by a registered deed of partition executed on 16-12-1932. On this day itself
Sundrabai adopted Ramkrishna. Shrinivas then alienated the properties which had fallen to
his share by executing two deeds of gift in favour of Ramchandra’s sons Annaji and
Dattatraya, and a will in favour of Ramchandra’s daughter Renukabai. Shrinivas died, in
1934 and then the adopted son brought the present suit in which he claimed to recover his
half share in the properties of the family.

10
(1944) II MLJ 146.
11
(1899) ILR 23 Bom 636.

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He argued that the partition effected by Shrinivas and Ramchandra between themselves was
intended solely to defeat his claims as an adopted son and that in fact the said partition had
taken place not on 9th December but after his adoption on 16-12 1932. According to the
plaintiff the family of the parties continued to be joint on the date of his suit and he wanted
his half share in the properties on that footing.

The defendants claimed that the adopted son was not entitled to claim any share in the
property because the coparcenary between Shrinivas and Ramchandra had been terminated
by a prior partition between them.

The court here importantly said that the case of adopted son must be included in the list of the
exception to the rule that partition can be made only once. Gajendragadkar, J in the present
case equated the position of an adopted son to that of a son who was in his mother’s womb at
the time of the partition, but who is born thereafter.

On the basis of above-mentioned reasoning it was held that the coparcenary which had been
determined by the partition between Shrinivas and Ramchandra was revived by the adoption
of the plaintiff and that the plaintiff’s claim should be treated as a claim for reopening a
partition which had been made without recognising his share in the family properties. On this
basis the plaintiff was held to be entitled to claim one-half share in the properties in suit.

Anathachari v Krishnaswami12

Where in partition between two brothers, one brother transferred a portion of his share to the
other in consideration of the fact that the latter had discharged joint family debts out of his
separate property, the son of the former cannot question the transfer.

Maruti v Rama13

Where after a partition has been made it was discovered that the property allotted to one of
the coparceners did not belong to the family but to the stranger or that it was subject to a
mortgage, the coparcener to whom such property has been allotted is entitled compensation
out of the shares of the other coparceners, and the partition may if necessary be reopened for
the adjustment of the shares.

12
(1938) Mad 410.
13
(1897) 21 Bom 33.

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 CONCLUSION

The effect of partition is to dissolve the coparcenary with the result that the separate member
holds their shares separately. Share of each member on his death passes to his heirs. But if a
member separates from other members, but continues joint with his own male issues, the
share of property in his hand will retain the character of coparcenary property as regards the
male issue.

A partition is generally irrevocable. However as mentioned above there could be situations

where a reopening may be advisable. It may be imperative to have a redistribution of
the properties in order to prevent gross injustice to the members of the family. An additionald
istribution was also advised by Manu where more property was subsequently added or
discovered.

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 BIBLIOGRAPHY

Books

 Poonam PradhanSaxena, Family Law Lectures, (2d ed. 2007).

 Paras Diwan, Modern Hindu Law, (17h ed. 2006).

Web sources

 http://legalsutra.com/1076/reopening-and-reunion-of-partition-a-study-through-case-
laws/.
 http://www.shareyouressays.com/117709/what-are-the-legal-provisions-regarding-re-
opening-of-partition-of-hindu-joint-family-properties.
 https://www.boddunan.com/articles/education/21-law-a-legal/547-reopening-of-
partition.html.
 http://www.advocatekhoj.com/library/judgments/index.php?go=1975/september/30.p
hp.

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