What do you mean by partition? Discuss the various modes of effective partition. Under what circumstances partition can be reopened?

Question: What do you mean by partition? Discuss the various modes of effective partition. Under what circumstances partition can be reopened? [BJS 2021]

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Answer

Partition under Hindu law refers to the division of the joint property of a Hindu Undivided family among its legal sharers, thereby converting the joint property of the family into individual property. This process signifies the termination of the joint status of the family and enables each co-heir to hold his share of the property independently.

The legal principles for partition in Hindu law differ according to regional practice. According to Mitakshara law, which is applicable in most parts of India except Bengal and Assam, partition involves the division of joint family property into separate shares. In contrast, in Dayabhaga law, which is prevalent in Bengal and Assam, the partition is understood as the separation of shares and not division on a scattergun basis.

Modes of Effective Partition

A. Division by agreement: In this mode, the co-heirs agree on the division of the property. Such an agreement can be made orally or in writing, although a written agreement is preferable for reasons of clarity and legal enforceability. For immovable property, registration is required under the Registration Act, 1908, if the value exceeds Rs. 100.

B. Division by arbitration: In cases where the co-heirs agree to involve a neutral party, arbitrators can be appointed to determine and distribute the shares. The decision, known as the arbitration award, is binding on all parties and can be enforced in court if necessary.

C. Division by the father: Under Mitakshara law, a father has the power to divide the estate among his sons during his lifetime. This paternal division must comply with the principle of equality and ensure a fair division among the sons.

D. Partition by suit: If the partners cannot agree, they can file a suit for partition before a civil court. The court issues a judgment determining the division of the property, which is then enforced by the terms of the judgment.

E. Division by notice: A co-heir may express his or her intention to separate from the joint family using a notice. Following such a notice, the division is deemed to have taken place and the joint share is converted into a separate share, even if the property has not yet been physically divided.

F. Division by will (testamentary division): A co-heir can divide his or her share of the property through a will that comes into effect after his or her death. This testamentary division allows the co-heir to determine the division of his or her share of the property among the heirs.

Grounds for reopening: The division can be reopened under certain circumstances:

1. Fraud or deceit: If fraud or misrepresentation was made in the execution of the partition, the aggrieved party may apply for reopening by proving the fraudulent act to the court.

2. Mistake: Significant mistakes that affect the fairness of the division, such as an incorrect valuation of assets, are grounds for a reopening to ensure a fair division.

3. Subsequent birth of a co-heir: If a son is born after partition but before the father’s death, he may claim a share of the property. His rights require a reopening of the division to include his share.

4. Disregard assets: If important assets were omitted from the original division, the division can be reopened to include them to ensure an equitable distribution of all property.

5. Legal procedure: To reopen a division, a co-heir must file a lawsuit in civil court. The court will examine the validity of the grounds for reopening and may order a redistribution if this is justified to ensure an equitable division of the property.

Relevant Court Decisions:-

In the case of Appovier v. Rama Subba Aiyan (1866), it was held that partition includes partition of interest as well as partition of shares. This set a precedent for the dual nature of partition under Hindu law.

In Puttorangamma v. Ranganna (1968), the Hon’ble Court recognized that partition can be resumed on the ground of fraud and mistake, thereby confirming the remedies available to redress injustice in the partition.

The Hon’ble Court in the case of Shrinivas Krishnarao Kango v. Narayan Devji Kango (1955), upheld the right of a son born after partition to apply for revision and emphasized the recognition of later birth as a valid ground for revision.