Can a partition be reopened? Explain the grounds on which a partition may be reopened.
Find the answer to Hindu Law only on Legal Bites.
Question: Can a partition be reopened? Explain the grounds on which a partition may be reopened. Find the answer to Hindu Law only on Legal Bites. [Can a partition be reopened? Explain the grounds on which a partition may be reopened.] Answer The division of property into parts is known as Partition. Under Hindu Law, partition means the division of a Joint family to give the coparceners their respective parts of the undivided property. A partition is an act through which a coparcener...
Question: Can a partition be reopened? Explain the grounds on which a partition may be reopened.
Find the answer to Hindu Law only on Legal Bites. [Can a partition be reopened? Explain the grounds on which a partition may be reopened.]
Answer
The division of property into parts is known as Partition. Under Hindu Law, partition means the division of a Joint family to give the coparceners their respective parts of the undivided property. A partition is an act through which a coparcener severs his ties from the undivided joint family.
Manu says,
“once is a partition made, once is a damsel given in marriage, once does a man say, “I give thee” these are by good men done once for all and irrevocable”.
When a severance takes place, the joint status ends, irrespective of the fact that the partition has been effected to defeat the claims of the creditor. If the partition is proved by mutation, it would be final, it might be done with some ulterior motive. Such partition would also be binding upon the members of the family who were joined prior to partition, as was mentioned in the case Smt. Lilawati v. Paras Ram AIR 1977 HP 1.
In S. Nayak v. Satyawadi Nayak, AIR 1984 Orissa 30, Orissa High Court held that where there was a previous partition in the year 1918, a fresh suit for partition was maintainable. Merely because a party faced certain difficulty decades after being in the enjoyment could not furnish a cause of action for a suit for fresh partition. A partition dissolves the coparcenary. The community of interest is lost. The members, upon partition, hold their respective shares as their separate property. A fresh partition is possible if the male members of the original partition fuse their separate interests by re-union with the intention to re-unite in the estate and the interest to revert to their former status.
Grounds for reopening of partition –
There are, however, certain exceptions to the general rule, and a partition can be re-opened in the following cases:
- A son conceived at the time of partition, though not born before partition, can reopen it if a share has not been reserved for him. On the other hand, if a son is begotten as well as born after partition, and if a share is allotted to the father, such after-born son is not entitled to have the partition re-opened, and he is only entitled to succeed to his father’s share and his separate or self-acquired property to the exclusion of the other divided sons.
- A son begotten as well as born after partition can demand a re-opening of partition if his father, though entitled to a share, has not reserved a share for himself.
- After the removal of disqualification, a disqualified coparcener or a missing coparcener on his return can reopen the partition.
- On attaining his majority, a minor coparcener can ask for the partition re-opening if it was made during his minority and was unfair or prejudicial to his interest. The Supreme Court in Smt. Sukhrani v. Harshanker, AIR 1979 SC 1430 has held that if the partition is detrimental to the interest of a minor or it was improperly affected, the partition could be re-opened irrespective of the fact that there was no fraud or misrepresentation, or undue influence.
- Similarly, if a coparcener has obtained an unfair advantage in the division of the shares, the partition may be re-opened for the re-adjustment of shares.
- If any coparceners are left during the partition by mistake, he may be subjected to the partition later.
- If in case a widow has adopted a son, then that son is entitled to re-open the partition later.
The Supreme Court in Ratnam Chettiar v. S.M. Kuppuswami, AIR 1979 SC 1, held that where a partition effected between the members of the Hindu undivided family by their own volition and with their consent, it cannot be re-opened unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. When an undivided family consists of minors and the partition effected therein is proved to be unjust and unfair and is detrimental to the interest of the minors, a partition can be reopened, whatever the length of time when the partition took place.
The Hindu Law allows the reopening of a partition in certain cases only. Otherwise, the partition, once made, cannot be reopened.