RE-OPENING OF PARTITION

A RESEARCH PRAPOSAL SUBMITTED IN PARTIAL FULFILMENT

OF THE COURSE FAMILY LAW -II FOR THE REQUIRMENT OF
THE DEGREE B.A; LL. B. (HONS) SESSION 2020-21

SUBMITTED BY: - SUBMITTED TO: -

PRINCE KUMAR MS. POOJA SRIVASTAVA
ROLL NO: 1952 ( FACULTY OF FAMILY LAW)
SEMESTER: 3rd

JANUARY 2019

CHANAKYA NATIONAL LAW UNIVERSITY

NAYAYA NAGAR, MITHAPUR, PATNA – 800001
INTRODUCTION
Early sages were not in favor of partition. When the later sages recognized partition, they were
neither in favor of partial partition nor in favor of re-opening of partition. But such were the
social needs that both partial partition and re-opening of partition came to be recognized.

It seems, sometimes, the circumstances are such that equal partition cannot be made. In
such a case a sum of money may be paid to a coparcener by the other coparcener who has been
assigned valuable property. This came to known as “owelty”. It is in lieu of the property on
account of which it is granted. In Swaminatha Odayar v Official Receiver1 the Supreme Court
said that a decree for payment of owelty money in a partition suit even where it does not
expressly declare a charge creates one by necessary implication on the property allotted to the
member and such charge has precedence over prior mortgage of such property. But apart from
this innovation, the sages did recognized re-opening of partition in certain circumstances and
whenever justice or equity so demanded.

We may review some texts of Hindu sages.

A text of Manu runs: Once is the partition of inheritance made; once is a damsel given
in marriage; and once does a man say, “I give,” these three are by good men done once and
irrevocably.2

On the basis of this text a view has been propounded that if partition is once made, it is
final and irrevocable; it cannot be re-opened. Another text of Manu runs: “If, after all the debts
and assets have been distributed accordingly to the rule, any property is afterwards discovered,
one must divide it equally.3” This text does not explicitly talk of re-opening of partition, but of
distribution of the discovered property. Yajnavalkya seems to be more explicit when he
declared:

“The settled rule is that co-heir should again divide on equal terms wealth which being
concealed by one co-heir from another and is discovered after partition.”4

Katyayana also ordained that the property of which an unequal distribution has been
made contrary to law or the property recovered after being seized or lost, should be

1
AIR 1957 SC 577.
2
Manu, IX, 48.
3
IX, 218.
4
Yajnavalkya, II, 126.
redistributed.5 The courts have taken the view that though a partition once affected is final, yet
it can be re-opened in case of fraud, mistake or subsequent recovery of property.

The matter may be looked at from two angles:

(a) Readjustment of properties, and

(b) Re-opening of partition.
READJUSTMENT OF ASSETS:

The second text of Manu quoted above talks of one case of re-adjustment of the properties
which are discovered after the distribution of assets had taken place. There may be other cases
of this nature. For instance, some properties may be left out from the partition by mistake or
oversight or some lost properties may be recovered later on, or there may be some items of
property whose distribution has to be postponed because they were in the possession of a third
party, such as in the case, of usufructuary mortgage. The process of readjustment may also be
applied to a case of slight inequities which may be adjusted without disturbing the entire
division of properties. Thus, the general rule is that when readjusting can be made, a partition
need not be re-opened.6 But if re-adjustment is not possible, the partition may be re-opened.

5
Cited in Smritichandrika XIV. 718; see also Dayabhaga, XIII, 1, 33; Viramitrodaya, II, i, 14.
6
The Dayabhag is to the same effect; what has already been divided is not to be divided again, XII, 6;
Mitakshara I, ix, 1-3.
OBJECTIVES OF THE STUDY
The researcher intends to find out the following during the course of research:

A. Present paper attempts to sketch the various circumstances under which a partition can
be reopened and under what circumstances reunion is possible.

B. 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.
C. The Objective of this research is to find out the Exceptions to where re-opening can be
claimed.
D. To study and analyse related case laws.

HYPOTHESIS
1. “Once only a partition made if the partition is once made. It is final and irrevocable
and hence” it cannot be re-opened.
2. According to Hindu joint family once a partition is made it is possible to irrevocable
or re-opened them.

RESEARCH METHODOLOGY
The project involves doctrinal forms of sources. As far as the doctrinal sources are concerned,
they primarily include the web, books and newspaper articles.

The method of writing this project will be a mixture of descriptive and analytical. Various
literary works from the library and internet were used as reference for making this rough draft
as well. Comparisons are done with respect to the various landmark cases and their judgments
and analytical method will come with an outcome of result done after research.

SOURCE OF DATA
Primary sources include Hindu law (bare act) the Hindu marriage act 1955, Muslim law (bare
act) etc.

Secondary sources include books, Articles, Websites etc.

LIMITATION OF THE STUDY
I am student then I cannot collect more than from book.
1. Money is one of the limitations since researcher is a student.
2. Time period given for the submission of final draft is not enough.
3. Another limitation is that research area is limited for the researcher to the college
campus.

SCOPE OF THE STUDY

The project entitled “RE-OPENING OF PARTITION” has been done at Patna as a completion
part of the degree B.A; LL. B (hons) during the session 2018-23 program.

TENTETIVE CHAPTERISATION
1. Introduction
2. Partition
3. Type of partition – mode of partition
4. Effect partition
5. Re-opening of partition
6. Exception where re-opening can be claimed
7. Conclusion

RESEARCH QUESTION
The researcher has formulated the following research questions, the answer for which has been
found during the course of research:

1. What are the different circumstances under which a partition can be reopened?
2. Can females re-open the partition?
3. What are the views of judiciary?

RESEARCH TOOL
TOOLS OF DATA COLLECTION: Books, Pen, laptop and Copy.
 BIBLIOGRAPHY

General rules
 Times New Roman, Size 10, 1 line spacing, Justified.
 Add full stop after every footnote.
 Months should be written in abbreviated forms: Jan., Feb., Mar., Apr., May, June, July,
Aug., Sept., Oct., Nov., Dec.
 Tables given at the end of the Bluebook should be referred to for abbreviated forms. Eg.
Abbreviations of geographical terms, periodicals, publishing terms etc.

Statutes
 The Hindu marriage act, 1955
 Muslim law (bare act)
 …………………………………………………..

Books
 Davis, Jr. Donald R. 2004. “Dharma in Practice: Ācāra and Authority in Medieval
Dharmaśāstra,” Journal of Indian Philosophy
 Creese, Helen. 2009a. Old Javanese legal traditions in pre-colonial Bali. Bijdragen tot
de Taal-, Land- en Volkenkunde
 Fuller, C.J. 1988. "Hinduism and Scriptural Authority in Modern Indian Law."
Comparative Studies in Society and History
 Hooker, M.B., ed. 1986. The Laws of South-East Asia. Volume 1: The pre-modern
texts. Singapore: Butterworth & Co.
 Jain, M.P. 1990. Outlines of Indian Legal History. 5th Ed, Nagpur, Wadhwa & Co.
 Aggarwal,RK. Hindu law, Central Law Agency.

Internet
 www.legalservicesindia.com.
 www.manupatrafast.com.
 www.scconline.in.
 www.indiankanoon.org.
 https://www.google.com/webhp?authuser=2
 ………………………………………………………………………………….

Case
 Swaminatha Odayar v Official Receiver.
 Ratnam Chettiar v. S. M. Kuppuswami Chettiar.
 A.Venkappa Bhatta v. Gangamma.
 Balaji Ganoba v. Annapurnabai
 Athilinga Goundar v. Ramaswami Goundar.
 Anant Bhikappa v. Shankar Ramchandra.
 ………………….