“Partition is made only Once….." says Manu Discuss.

Question: “Partition is made only Once…..” says Manu Discuss.

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Answer

Under the tenets of Shastric Law, Manu states-

“once a partition is made, once a damsel is given in marriage and once a gift is made is irrevocable and irretraceable.”

What he means by this statement is that if a partition once happens, it is generally irrevocable. The logic behind this statement is that erstwhile members of the coparcenary hold their shares as their distinct and exclusive property, they may enter into contracts that relate to them, so as to make legitimate titles in favor of even third parties.

However, this statement is not totally exhaustive as it has certain exceptions to the principle that “shares are divided only once.”

It becomes necessary in some situations to have the properties redistributed so as to prevent gross injustice to the family members of the Hindu Undivided Family. However, the redistribution of property cannot be taken by the plea that the partition was taken out in an unfair manner even though it can be countered by concrete facts that it was undertaken after due and proper deliberations.

There are only certain cases where a partition can be opened:

Fraud

A partition can be reopened if it can be proved that a coparcener has gained an undue advantage by the virtue of the partition by means of fraud. Fraud can take various forms, one of which being that when a coparcener may conceal the Joint Family Property just to gain the undue and unjust advantage, and only in such a case can a partition be reopened.

Son in Womb at time of Partition

As a matter of fact, sons, grandsons, and great-grandsons have a right to partition. The question arises in the case when a child is conceived during the time of partition. The partition then is to be postponed till the birth of the child. However, if the members do not wish to wait till the birth of the child, then partition can take place and a share of the unborn child can be reserved for him.

Adopted Son

As per Section 12 of the Hindu Adoption and Maintenance Act, 1956, an adopted son has the same rights as a natural son.

Disqualified Coparcener

Earlier, there were numerous grounds through which a person could be disqualified such as congenital blindness, insanity, deafness, and virulent and incurable leprosy. However, these grounds except congenital insanity have now ceased to exist due to the Hindu Inheritance (Removal of Disabilities) Act, 1928.

Absentee Coparcener

A coparcener who was absent at the time of partition, who has a share in the coparcenary, has a right to call for the reopening of the partition.

Property Added After Partition

The reopening of partition can also be affected when some properties were left out, either by mistake or deliberately, or when some properties which have been earlier lost or seized were discovered.

Minor Coparcener

With respect to the rights of a coparcener, Hindu Law does not make any distinction between a minor and a major coparcener. Hence, the rights of a minor coparcener are the same as the rights of a major coparcener. However, there are certain limitations that come along with being a minor coparcener.

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