DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

FAMILY LAW - II

FINAL DRAFT

Academic Year 2022-2023

TOPIC: RE-OPENING OF PARTITION

Submitted for the project work undertaken in the partial fulfilment of B.A. LL.B. (Hons) 5
years integrated course at Dr. Ram Manohar Lohiya National Law University, Lucknow.

Under the guidance of : Submitted by:

DR. SAMREEN HUSSAIN. KRITIN BAHUGUNA
Assistant Professor 210101075
(LAW) B.A LL.B (Hons.)
Dr. Ram Manohar Lohiya National Law University. Semester-IV Section A
 TABLE OF CONTENTS

ACKNOWLEDGEMENT ............................................................................................................. 3

DECLARATION ........................................................................................................................... 4

INTRODUCTION ......................................................................................................................... 5

JOINT HINDU FAMILY ............................................................................................................. 6

PARTITION .................................................................................................................................. 7

TYPES OF PARTITION: ............................................................................................................. 8

RE-OPENING OF PARTITION.................................................................................................. 9

EXCEPTIONS WHERE RE-OPENING CAN BE CLAIMED ................................................ 10

a) Where the partition is effected between the members of the family which includes the
minor coparceners ,it is binding the minor also, if it is done in good faith and in bonafide
manner keeping into account the interest. ................................................................................. 12

b) Where however a partition is proved unjust and unfair and is detrimental to the
interest of the minors, the partition can be reopened at any time. In such a case it is the duty
of the court to protect the interest of the minors. The onus of proof that the partition was just
and fair is on the party supporting the partition. ....................................................................... 12

c) Where there is partition of immovable and movable properties and the two transaction
are distinct and separable or have taken place at different times, it is open to the court to
maintain that which is just and fair and reopen only that which is unjust and unfair. .......... 12

CASE LAWS ............................................................................................................................... 13

1. Ratnam Chettiar v S M Kappu Swami ................................................................................ 13

2. In Raghunath Tiwary v Ramakanth Tiwary....................................................................... 13

3. Anathachari v Krishnaswami .............................................................................................. 13

CONCLUSION............................................................................................................................ 14

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 ACKNOWLEDGEMENT

I would like to thank my Family Law Professor, Dr. Samreen Hussain for guiding me through
this project and helping me inculcate an idea of Family Law and Partition which helped me
enhance my knowledge and prospects towards the respective subjects. I would also like to
thank my friends and family for helping me by providing ideas and suggestions pertaining to
the elaborated topic.

Kritin Bahuguna

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 DECLARATION

I hereby declare that the project titled “RE-OPENING OF PARTITON” submitted by me

to Dr. Ram Manohar Lohiya National Law University, Lucknow, Uttar Pradesh in partial
fulfilment requirement for the award of the degree of B.A. LL.B. Hons is a record of
bonafide work carried out by me under the guidance of Dr. Vipul Vinod.

I further declare that the work reported in this project has not been submitted, and will not be
submitted either in part or in full, for the reward of any degree or diploma in this institute or
any other university.

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 INTRODUCTION

Partition means a numerical division of property and bringing a Hindu Joint family to an end. The
joint family ceases to be joint and transforms into a nuclear family after partition. In a coparcenary,
the coparceners hold the property as one common unit, partition means the fixing of the shares of
each coparcener.

According to the Mitakshara Law, it is the adjustment of the diverse interests regarding the whole,
by distributing them into particular portions of the aggregate. Thus, partition implies the
crystallization of the fluctuating interest of a coparcenary into a specific share in the Hindu Joint
Family.

Under the Shastric law, Manu says ‘once a partition is made, once a damsel is given in marriage
and once a gift is made is irrevocable and irretraceable.’

A partition is generally irrevocable. The logic behind is that erstwhile coparceners hold their
shares as their separate and exclusive property, they may enter into transactions relating to them,
so as to create valid titles in favour of even third parties.

However, there are certain exception to the principle that “shares are divided only once.”

It may become imperative in certain situations to have redistribution of the properties in order to
prevent gross injustice to the members of the family. However, a plea that the partition was unfair
cannot be countenanced when the facts show that it has been undertaken after due and proper
deliberations. Thus, when readjustment of properties is not possible the entire partition has to be
reopened.

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 JOINT HINDU FAMILY

A Joint Hindu Family is the normal condition of Hindu Society, or atleast it was until the last few
decades. A joint Hindu family is a group of relatives tied together by ties of kinship & marriage
and descended from a common ancestor. It includes children, children’s children down the line,
spouses. A joint Hindu Family is normally joint in worship/kitchen/business. Even daughter in
laws/widowed daughters who has returned back to their parental side are part of a hindu joint
family. A joint family may encompass countless generations.

A joint family is headed by a karta who is normally the eldest living male member of the family.
Karta has some peculiar rights and obligations under traditional Hindu Law, he has the power and
duty of superintendence of how the joint family is run, who is getting what ?, how the members
are being maintained ? He is also entitled to dispose off the property in times of dire
need/necessity. After 2005 amendments by which women have been given equal proprietary
rights in ancestral property even women can be Kartas.

A coparcenary

Within the joint family there is a narrower body called the Coparcenory. This includes the eldest
male member + 3 generations. For eg : Son – Father – Grandfather – Great Grandfather. This
special group of people are called coparcenors and have a definitive right in ancestral property
right since the moment of their conception. Earlier only a Son/Son’s son/Son’s son’s son were
coparcenors – now daughters are equally coparcenors after 2005. They can get their share culled
out by filing a suit for partition at any time. A coparcenor’s interest is not fixed it fluctuates by
birth and deaths in the family.

Ancestral & Self Acquired properties.

A property is ancestral when acquired through inheritance from ancestors, this property is always
shared by members of a coparcenary equally. On the other hand property is self acquired if it is
earned by own efforts/learning or other human endeavour. In the latter – the person acquiring is
the sole owner and nobody exercises any right on the same during his lifetime.

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 PARTITION

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. However,
for an effective partition, it is not necessary to divide the properties in metes and bounds.

Partition could be partial also. It may be partial vis-a-vis members, where some of the members
go out on partition and other members continue to be the members of the family. It may be partial
vis-a-vis properties where, some of the properties, are divided among the members other
properties continue to be HUF properties.

Partition under Hindu Law, can be total or partial. In total partition all the members cease to be
members of the HUF and all the properties cease to be properties belonging to the said HUF.
Partition could be partial also. It may be partial vis-a-vis members, where some of the members
go out on partition and other members continue to be the members of the family. It may be partial
vis-a-vis properties where, some of the properties, are divided among the members other
properties continue to be HUF properties.

Partial partition may be partial vis-a-vis properties and members both. Under Indian laws that
pertain to the joint family system, when a joint family undergoes partition, each member of the
family is entitled to claim his/her share. Under Hindu law, coparacenary share is the term that is
used. When partition is being contemplated and any woman of the family is pregnant at the time,
Hindu law recommends postponing the partition till the child is born. In Hindu law, a child in the
womb also has the right to a share.

However, if it is not possible to reschedule the partition, a share must be kept aside and that share
must be equal to the coparcener’s share. If, in case, the partition takes place without keeping a
coparcener share for the unborn child, the after born son has the right to get the partition reopened.

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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 HUF 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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 RE-OPENING OF PARTITION

Under the Hindu Law , partition is made is made only once but there are some exceptions to this
rule. The posthomus son can claim partition so can the heir of disqualified persons and absent
coparcener. The case of adopted son must also be included among the exceptions.A partition once
effected is usually final and binding on the parties and cannot be opened at the whims and
pleasures of the parties.

The basic reason is that upon the partition the earstwhile coparceners hold their interest and shares
as separate property with an exclusive and valid title towards them. They may enter into
transaction as related to them ,so as to create valid titles in favour of third parties. However there
could be certain situations where it might become imperative to undertake redistribution of the
properties or else gross injustice will be caused to the family members.

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

A partition is therefore 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 additional distribution was also
advised by Manu where more property was subsequently added or discovered.

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 EXCEPTIONS WHERE RE-OPENING CAN BE CLAIMED

RIGHT OF SON:
A reopening of partition made between the surviving members of a joint Hindu Family at the
instance of the son adopted by the widow of the deceased coparcener, the adopted son is entitled
to claim that the properties alienated without justifying necessity by the surviving coparcener by
the surviving coparcener, should be assigned to their shares and that he should be awarded shares
in the property existing at the date of his adoptive father’s death. Whenever a partition is opened
share must be allocated on affair and equitable principle. Equity on such a case would be satisfied
if in determining the share of the adopted son, alienation made by one of the coparceners is allotted
to his share and the partition is opened on that basis and the properties are relocated on that basis.
This in no way is said to interfere with the right of divided coparcener to deal with his share as
his own or of impairing the principle that an adopted son is bound by all lawful alienations made
prior to the adoption.1
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.2

FRAUD:
A partition may be re-opened ,if any coparcener has obtained an unfair advantage in the division
of the property by fraud upon the other coparceners.3
If in a suit for partition, no fraud is pleaded initially in the plaint, the plea cannot be allowed to be
changed belatedly that the partition was fraudulent. 4
However fraud vitiates everything and even a belated plea of fraud cannot be discountenance.
Where a consent decree of partition was sought and it was sought and it was found that a widow
was shown to have relinquished her rights, on the evidence of fraud being adduced and accepted
,the decree of the partition was set aside. 5 Hence where one or more copareceners conceal the
joint family property at the time of partition,to gain an unjust and undue advantage over others.
Or with an intention of creating a bigger share than what they would have been entitled otherwise,
the partition can be re-opened on the discovery of fraud.6 However in a suit for reopening of

1
Krishtappa v Gopal ,AIR 1957 Bom 214 (FB)
2
Anathachari v Krishnaswami, (1938) Mad 410
3
Moro Vishvanath v Ganesh,(1873) 10 Bom HC 444
4
Raghunath Tiwary v Ramakanth Tiwary, AIR 1991 Pat 145
5
Santosh v Jagat ram,(2010) 3 SCC 251
6
Bishambar Nath v Lala Amar,AIR 1937 PC 105

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partition, fraud cannot be added as ground subsequently, 7 at a later stage of trial.

ADDITION OF PROPERTY AFTER PARTITION (Suggested by Manu):

Where after partition it is effected, it is discovered that some properties were left out, either by
mistake or deliberately due to fraud or concealment by either member of a family or even a
stranger or where some properties belonging to the family has been seized or lost and where then
recovered subsequent to the partition, by the family and in the interest of the family members that
a fresh partition be done ,there can be reopening of the partition. However if the distribution of
the additional properties can be made effectively without reopening the earlier partition, then he
earlier partition should be not disturbed and the recovered property should be distributed among
the family members.
Illustration:
A ,B ,C and D are four brothers living in a house of 21 Acre. In the year 2004 they partitioned
their property and took their own shares respectively. However after three years the course of the
Ganges river changed leaving an additional space of 7 Acre adjacent to their earlier land
.According to the Law of Easements, this additional land belonged to the brothers only. So they
can if required so re-open the partition and divide the shares amongst themselves.

PARTITION UNJUST AND UNFAIR TO MINOR:

If the partition earlier effected was unjust and unfair towards one or more coparceners, 8it can be
reopened irrespective of the length of the time that has passed since the earlier partition. Ordinarily
a partition effected by a family member binds the minor also, if he was properly represented by
his father or any other guardian. Such bona fide partition made in good faith, and which is not
prejudicial to the minor’s interest cannot be reopened by him on his attaining majority, only on
the grounds that he was not a consenting party. But where the earlier partition was detrimental to
his interest, it would be the duty of the court to protect the interest of the minor and allow
reopening.9

MISTAKE:

7
Raghuynath Tiwary v Ramakant Tiwary, AIR 1991 Pat 145
8
Ratnam Chettiar v M Kuppuswamy Chettiar, AIR 1976 SC 1
9
Radhamanin Bhaiyanin v Dibakar Bhuiya, AIR 1991 Pat 95

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Where after a partition has been made it was discovered that the property allotted to one of the
copareceners 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 entitiled compensation out
of the shares of the other coparceners, and the partition may if necessary be reopened for the
adjustment of the shares.10

The law on the subject was very clearly summarised by the Supreme Court in a decision 11 in the
form of proposition:

a) Where the partition is effected between the members of the family

which includes the minor coparceners ,it is binding the minor also, if
it is done in good faith and in bonafide manner keeping into account
the interest.

b) Where however a partition is proved unjust and unfair and is

detrimental to the interest of the minors, the partition can be reopened
at any time. In such a case it is the duty of the court to protect the
interest of the minors. The onus of proof that the partition was just
and fair is on the party supporting the partition.

c) Where there is partition of immovable and movable properties and

the two transaction are distinct and separable or have taken place at
different times, it is open to the court to maintain that which is just
and fair and reopen only that which is unjust and unfair.

Also in the decision it was held that where a plea that the partition was unfair cannot be
countenanced when the facts show that it had been undertaken after due and proper deliberation. 12

10
Maruti v Rama, (1897) 21 Bom 333
11
Ratnam Chettiar v Kuppuswami, AIR 1976 SC 1
12
K Jagannathan v A M Vasudhevan Chettiar, AIR 2001 Mad 184

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 CASE LAWS

1. Ratnam Chettiar v S M Kappu Swami13

The Supreme Court has held that a partition effected between members of the Hindu Undivided
Family by their own volition and with their consent cannot be reopened unless it is shown that the
same is obtained by fraud, coercion, misrepresentation or undue influence. When undivided
family consists of minors and the partition effected therein is proved to be unjust and unfair and
is detrimental to the interests of the minors, the partition can be reopened whatever the length of
time when the partition took place.

2. In Raghunath Tiwary v Ramakanth Tiwary14

If in a suit for partition, no fraud is pleaded initially in the plaint, the plea cannot be allowed to be
changed belatedly that the partition was fraudulent.

3. Anathachari v Krishnaswami15
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.

4. Maruti v Rama16

Where after a partition has been made it was discovered that the property allotted to one of the
copareceners 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 entitiled compensation out of the shares
of the other coparceners, and the partition may if necessary be reopened for the adjustment of the
shares.

13
AIR 1976 SC 1
14
AIR 1991 Pat 145
15
(1938) Mad 410
16
(1897) 21 Bom 333

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 CONCLUSION

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 additional distribution was also
advised by Manu where more property was subsequently added or discovered.

The researcher has tried his level best to dig deep into the project topic and do justification to it.
The Researcher has also acknowledged and cited all the source authentically as far as possible.

It was really an enriching experience to work on the above dimensions of Family Law, which the
researcher is quite sure to have led to opening of new windows for thought , and rejuvenation of
the grey cells. He requests to encourage such endeavours even in future.

Hope you have liked the project, and any deterrence to the enjoyment due to the researcher’s fault
is deeply regretted.

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