PROJECT ASSIGNMENT: FAMILY LAW II

REOPENING AND
REUNION OF
PARTITION
(A STUDY THROUGH CASE LAWS)

SUBMITTED BY: AMIT AGRAWAL

ID. NO.: BLIL 1147
DATE OF SUBMISSION: 11th April, 2004.

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY,

BANGALORE.

TABLE OF CONTENTS
TABLE OF CASES.............................................................................................................3
INTRODUCTION...............................................................................................................4
RESEARCH METHODOLOGY........................................................................................5
REOPENING OF PARTITION...........................................................................................6
MINOR COPARCENERS........................................................................................6
FRAUD..........................................................................................................................8
MISTAKE......................................................................................................................9
AFTER BORN SON................................................................................................11
ADOPTION................................................................................................................13
ABSENT AND DISQUALIFIED COPARCENRERS.....................................14
REUNION.........................................................................................................................15
NATURE OF EVIDENCE......................................................................................15
PARTITION AND PRESUMPTION THEREOF.............................................17
WHO MAY REUNITE............................................................................................18
CONSTRUCTION OF REUNION AGREEMENT........................................19
CONCLUSION..................................................................................................................21
BIBLIOGRAPHY..............................................................................................................23

TABLE OF CASES
1. A Venkappa Bhatta v. Gangamma AIR 1988 Ker 133.
2. Anant Bhikappa v. Shankar Ramchandra 46 Bom. L. R. 1.
3. Athilinga Goundar v. Ramaswami Goundar (1944) II MLJ
146.
4. Balaji Ganoba v. Annapurnabai AIR 1952 Nag 2.
5. Balasubramania Reddy v. Narayana Reddiar AIR 1965 Mad
409.
6. Balbux Ladhuram v. Rukhmabai (1903) LR 30 IA 130.
7. Bhagwan Dayal v. Reoti Devi AIR 1962 SC 287.
8. Biyyala Chinna Narasamma v. Biyyala Venkata Narasi
Reddy AIR 1954 Mad 282.
9. Debabrata Ghose v. Jnanendra AIR 1960 Cal 281.
10.
Ganeshi Lal v. Babu Lal 40 All 374.
11.
Ganpat v. Gopalrao 1899) ILR 23 Bom. 636.
12.
Hira Singh v. Mt. Mangalan AIR 1928 Lah 122.
13.
Jatti v. Banwari Lal (1923) LR 50 IA 192.
14.
Nanuram v. Radhabai AIR 1940 Nag 241.
15.
Parmanand L Bajaj v. Commissioner of Income Tax
135 ITR 673 (1982).
16.
Parshuram v. Hirabai AIR 1957 Bom 59.
17.
Ram Narain Chaudhary v. Pan Kuer (1934) LR 62 IA
16.
18.
Ramchandra Shrinivas v. Ramkrishna Krishnarao
MANU/MH/0125/1952.
19.
Ratnam Chettiar v. S M Kuppuswami Chettiar AIR
1976 SC 1
20.
Sukhrani v. Hari Shanker AIR 1979 SC 1436.

INTRODUCTION
When and under what circumstances, questions of
ownership among Hindus were first considered, we have no
means to estimate. So far as there was any rudimentary
conception of ownership in early times, it was found in the form
of ownership of property being vested in the family itself, or to
use a modern phrase- ownership was corporate. 1 Corporate
ownership denotes a peculiar kind of ownership where no living
being is the sole owner but there are certain persons who are
managers of the property.2 However if there is any member of
the Hindu Joint Family who is hopelessly dissatisfied with the
management of the joint estate, his only remedy remains in
claiming for partition. This he can always do, as there is no
compulsion upon the members of Hindu Family to live in
common. Partition may be effected either amicably or through
intervention of the court. After a change in status by partition, a
member can no longer be deemed as agent or representative of
the family. Partition once made can not ordinarily be reopened
for Shastras say, 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 for all 3.
However there are certain well-recognised exception to
this principle. One of such is mentioned in Yajnavalka. As per
Yajnavalka, The settled rule is that co-heirs should again divide
on equal terms that wealth which being concealed by one co-heir
from another is recovered after partition. 4 A few of other such
exceptions are of where by mistake stranger property was
included while partitioning and the same was later lost; where
partition was done by fraud.
If two or more coparceners after partition agree to annul the
partition and to live together jointly as before and make a
junction of their property with affection, with the declaration
W Markby, Hindu and Mohamedan Law, (Delhi: Inter-India Publications,
1977), p. 34
2
p.35.
3
Raghavachari, et.al., Hindu Law: Principles and Precedents (Madras:
Madras Law Journal, 7th edition, 1980), p.349.
4
A Kuppuswami, (ed.), Maynes Treatise on Hindu Law & Usage, (New
Delhi: Bharat Law House, 13th edition, 1995), p.753.
1

that mine is thine and thine is mine, they are said to be

reunited.5 However there are certain complicated questions
relating to reunion like who may reunite, how to reunite..etc .
In the next few pages the researcher has made an attempt to
explore various circumstances under which a partition can be
reopened and to answer various questions relating to reunion.

G Sarkar, et.al., A Treatise on Hindu Law, (Calcutta: Eastern Law House, 5th edition, 1924 ), p. 407.

RESEARCH METHODOLOGY
Aims and objectives:
Present paper attempts to sketch the various circumstances
under which a partition can be reopened and under what
circumstances reunion is possible.
Scope and Limitations:
Scope of the present paper is to conceptualise the cases relating
to reopening and reunion of partition. During the course of
research paper, as per the permission of course teacher only
Mitakshara School has been dealt with. While writing the paper
the biggest hurdle that the researcher had to face was of
unavailability of views of scholars in the form of articles.
Research Questions:
I have attempted to answer the following questions in the
present paper:
What are the different circumstances under which a
partition can be reopened?
What are the requisites for reunion?
Chapterisation:
First chapter has dealt with the various instances where a
partition can be reopened.
Second chapter deals with various requirements for reunion.
Style of Writing:
This paper has largely descriptive style of writing.
Mode of Citation:
A uniform mode of citation is followed throughout the project.
Books in the present paper have been cited in this manner:
Name of the author (or Editor), Title of the Book, (Place of
Publication: Publishing Co., Edition (if applicable), Year), Vol. No.
(if applicable), Page No..

Sources of Data:
Primary sources in the form of law reports and secondary
sources in the form of books have been used to answer the
various research questions.

REOPENING OF PARTITION
MINOR COPARCENERS
A minor after becoming of age can reopen the partition if he can
prove that the partition was not for his benefit or it was unfair
with regard to him. This can best be explained with the help of
the case of Ratnam Chettiar v. S M Kuppuswami Chettiar 6. In
this case two brothers made a partition and at that time
plaintiffs were minors. Under the partition deed both immovable
and movable property were divided with the help of family
auditor of one brother.

S1 (SMK)
Def. 1

S2 (SMR)
Def. 5
S3PlaintiffsS4

S5
Def.3

Plaintiffs here alleged that the partition was secured by

practising fraud and undue influence and by suppressing large
assets belonging to the family which were taken by their uncle
(Def.1) by taking advantage of the weakness of the plaintiffs
father who was a person of weak intellect.
As per trial court, so far as the partition of the moveable
properties was concerned which was done by a separate
document and was severable from the partition of the moveable
properties, was neither unjust nor unfair so as to entitle the
minors to reopen the partition after a long period. The same was
confirmed by the High Court. The High Court in the present case
made a slight variation in the decree issued by the trial court by
setting aside the directions of the trial court for the appointment
of a Commissioner and by quantifying the value of the disparity
in the share of the plaintiffs, by itself.
The Supreme Court, here as regards immovable property
rejected to reopen the partition even though the properties were
not actually valued according to the market rate and that a
notional valuation had been given in the partition deed. Supreme
Court took this view due to its policy of not interfering with
6

AIR 1976 SC 1.

concurring findings of two courts below. 7 With regard to

partition of moveable property the Honble Supreme Court after
making a detailed study also reached the same conclusion that it
was an unequal partition and the silence of the father (Def. 5) or
even his acquiescence in allowing his elder brother to swallow
the amount was not a prudent act and it had caused serious
detriment to the interests of the minors which he had to protect,
because the minors at that time were members of the Hindu
undivided family.8
The Supreme Court laid the following propositions: 9
A partition effected among the members of HUF with
consent cannot be reopened, unless it is shown that
consent is obtained by fraud, coercion, misrepresentation
or undue influence.
A strict proof of facts is required to reopen the partition
because an act inter vivos cannot be lightly set aside.
If the partition is done in good faith and in bona fide
manner keeping into account the interests of the minors,
the same will be binding upon them.
If the partition effected between the members of the Hindu
undivided family, which consists of minors, is proved to be
unjust and unfair and is detrimental to the interests of the
minors the partition can be reopened irrespective of the
length of time when the partition took place.
Where there is a partition of immovable and moveable
properties but the two transactions are distinct and
separable or have taken place at different times, if it is
found that only one of these transactions is unjust and
unfair it is open to the Court to maintain the transaction
which is just and fair and to reopen the partition that is
unjust and unfair.

A similar problem came up before the Supreme Court in the case

of Sukhrani v. Hari Shanker10. Here the plaintiff was a minor at
Ibid., para10.
Ibid., para 13.
9
Ibid., para 19.
7
8

10

AIR 1979 SC 1436.

the time of institution of suit for partition. In the present case

there were originally three brothers who carried out the bidi
manufacturing business. After the death of one of them (Pusau),
the same was carried out by remaining two brothers.
Harishankar
(Pusau)
Rajaram

Plaintiff

Mannulal

Babulal
Son

Sunderlal

However in 1948 Mannulal represented to his brother that in

order to avoid tax there should be nominal partition between
them and upon this the joint family business was converted to a
partnership. Here Mannulals share was 10 Ans. 8 ps. And that
of Rajaram was 5 Ans. 4 ps. Later Babulal and Sunderlal were
also shown as partners. Even the houses belonging to the family
were divided where Mannulal took 2/3 rd share and Rajaram took
the rest. On these allegations the plaintiff filed the suit. It was
argued on behalf of defendant-appellant that the partition could
not be reopened since there was no fraud or misrepresentation
and since unequal shares had been voluntarily accepted, it was
binding on the parties. It was also pointed out that the plaintiff
and his brothers were effectively represented by their father
therefore partition cannot be opened merely on the ground of
inequality of shares.11
However the Supreme Court referring to the case of Ratnam
Chettiar v. S M Kuppuswami Chettiar12 held that even though
there was no fraud or misrepresentation or undue influence, a
partition could be reopened at the instance of minor coparcener
despite the fact that his branch was represented by his father at
the partition, if the partition was unfair or prejudicial to the
interest of minor.

11
12

Ibid., para 3
Supra n. 6.

FRAUD
A partition can be reopened in the case of fraud in division of
property. An instance of this can be given through the case of A
Venkappa Bhatta v. Gangamma13. In the present case first
defendant was the Karta of the family. On the death of her
husband plaintiff claimed partition of 1/4 th share of the estate
and the share of profits. She here disputed the partition on
which her signatures were taken persuading her to think that
the partition deed was a document to avoid tax.
Venkateshwara Bhatta

(Sankanna)=W
H = Def 15
(Plaintiff)
D1

Def 1

Def 2

Karta

D2

Here trial court found that in the partition deed less than th
share was given to the widow and also there was no separate
provision for viniyoga. It found that plaintiff, an old lady, was
entirely dependant upon first defendant. Hence it decreed the
suit in favour of plaintiff. The Honble high court closely
examined the partition deed. It found that it was it was a lengthy
and complex document, which could not have been understood
by plaintiff. Among infirmities it pointed out some of these were
like; partition deed didnt say which of the parties are entitled to
which of the properties. It was also highly unjust and
inequitable. Here she was entitled to th of 25 candies, 280
murahs of paddy and 5490 coconuts, but she was given only two
candies. Reading the whole document together and taking in to
account other circumstances the Honble High Court said that
the lady was very much under the influence of the first
defendant and she had no sons or support to look to. On these
grounds it confirmed to decision of the trial court.
13

AIR 1988 Ker 133.

MISTAKE
In the case of Balaji Ganoba v. Annapurnabai14 it was held that
partition could be reopened if a property which doesnt belong to
the joint family is wrongly included and it subsequently passes
out of the possession of sharer. Here the sharer would be
entitled to compensation out of the shares of other parties and
the partition if necessary may be reopened for readjustment of
shares. In the present case the branch of Ganoba was separate
from that of Dada.
Sakhram

Dada
Ganoba
Parwatibai

Balaji Tomaji Tatyaji

Sm. Tai
(Plaintiffs)
Def.

Harba

Ganagbai
Vithal

Valmik
On the death of Vithal, his mother had entered into possession of
properties and remained until her death. On her death
Parwatibai took possession of all property. Then plaintiffs and
defendants who are brothers instituted a suit against Parwatibai
and her daughter for possession of property as next
reversionary. On the death of Sm. Tai, Valmik (then minor) was
brought on record. In that suit a compromise decree was passed.
Under that compromise plaintiffs got some property on which
they effected partition. Later on Valmik filed another suit and
claimed all the property left by Gangabai and got the decree in
his favour. As a consequence of it plaintiffs lost most of the
property allotted on partition. Plaintiffs therefore brought a suit
for repartition.
14

AIR 1952 Nag 2.

Defendant here relied upon the rule that partition once done
cant be reopened except on the ground of fraud or mistake in
including a property which didnt belong to the joint family. But
in the view of the Honble High Court if a property has been
wrongly included and it subsequently passes out of the
possession of a sharer, he is entitled to compensation out of the
shares of the other parties. 15 Here the Court quoted the opinion
expressed by Walsh J in Ganeshi Lal v. Babu Lal16 which is the
right is based simply upon this principle, that where parties
arrive at a partition either by agreement or by a decree, there is
an implied and mutual right of indemnity or contribution in
respect of any paramount claim by a third parties which throws
a burden of loss not contemplated in the partition proceedingsunfairly upon one of the parties. If the original decision has been
arrived at by a common mistake, which, of course, in the case of
decree is adopted by the Court in making the decree the mistake
can be set right pro tanto.17
Another case in this regard is that of Debabrata Ghose v.
Jnanendra18. In this case plaintiff sought to reopen a previous
partition. To appreciate the facts of the case it is first necessary
to have a look at the following genealogical tree.
Dwarkanath
(Rajendra)
Jogendra

(Sidheshwar)=Padma

Bhupendra

Jnanendra

(Nagendra)=

Labangalata (Def.)

(Def.)
Plaintiff

Debendra-

Dwarkanath Ghose died in 1892 after having published a will. By

his will he created an absolute debutter in respect of two of his
properties and bequeath the rest to his two sons Rajendra and
15

Ibid. para 4.

16

40 All 374 cited from, Supra, n.14.

17

Ibid. Para 5.

18

AIR 1960 Cal 281.

Jogendra in equal share. Rajendra predeceased his father. He

had also published a will by which he appointed his brother
Jogendra as the executor and bequeathed his properties to his
four sons in equal shares subject to the payment of an excess
amount to his youngest son Nagendra. Later, Bhupendra,
Jnanendra and Nagendra the three sons of Rajendra then alive
instituted a suit in this Court against Jogendra and others for
construction of the wills of and for partition. This suit ended in a
consent decree. By the consent decree the parties had the entire
estate of Dwarkanath including the two premises which
Dwarkanath had created debutter in respect of. By this decree,
all the properties belonging to the estate of Dwarkanath were
divided into two parts. One part which included one of the
debutter premises was allotted to Jogendra and the other part
which included the other debutter premise was allotted to the
three sons of Rajendra jointly. The three sons of Rajendra
subsequently partitioned among themselves the joint property. In
this partition Nagendra got the property in respect of which the
debutter was created. Thereafter, the property allotted to
Bhupendra had been sold in execution of a decree passed
against him.
Later the plaintiff successfully instituted a suit to establish the
title of deity in the premises allotted to Nagendra and Jogendra
which were created debutter by Dwarkanath but were
secularised by the consent decree.
The present suit was filed by the plaintiff for partition of only
such of the properties belonging to the parties as are still within
the family.
However Jnanendra impleaded that ever since the award
partition, Jnanendra, Bhupendra and Nogendra entered into
possession of the properties allotted to each and ever since have
been in possession of the properties so allotted as their own
exclusively, openly and adversely to each other. 19
The Honble High Court here held that the subject matter of
earlier partition by mistake included those properties also,
which couldnt have been the subject matter of the partition. The
position therefore, in the words of P C Mallick J. was of where in
the partition al the joint family property were allotted to
19

Ibid., para 3.

Jnanendra and Bhupendra to the total exclusion of Nagendra. 20

He said, the partition which included outside property is not
invalid or a nullity but is merely an inequitable partition and the
court of Equity has to intervene not because there was no
partition effected which is valid in law but because the partition
was inequitable and imposed hardship on one of the parties
which should be corrected if possible. 21 However on the facts of
the case, court did not order for reopening of the partition. 22

AFTER BORN SON

In the case where a son is begotten as well as born after
partition is entitled to reopen the partition where the father has
not reserved a share to himself on a partition with his sons. 23 On
the contrary where father has reserved a share to himself, a son
who is begotten as well as born after the partition is not entitled
to claim to reopen the partition.24
This can be enunciated with the help of case of Athilinga
Goundar v. Ramaswami Goundar25. In this case a Hindu with two
wives had one son by his senior wife and two sons by his junior
wife. All the sons at the time of partition were minors. By the
partition one share was allotted to senior wife with her son and
two shares were allotted to junior wife with her two sons. Father
retained a few items for his maintenance without having power
of alienation. After his death the property in his hands were to
be divided equally among three sons. Contemplating the
situation of an after-born son the partition deed contained a
clause saying, male children who might hereafter born out of
your loins (the two wives) should be provided for out of the
shares allotted to the respective families. Here family had
reference to the two branches represented by the two wives.
20
21

Ibid., para 7.
Ibid., para 8.

In the instant case six years after partition and allotment, Nagendra had
executed a mortgage of premises allotted. In enforcement of this mortgage,
the property was sold. Long after this, the suit was instituted by the deity
claiming the superior title which was upheld by the Court. On the face of
these facts it cannot be held that Nagendra and/or his heir has suffered loss
by reason of the displacement of title by the deity in respect of the property
allotted to Nagendra. Cited from, Supra n.18, para 13.
23
S A Desai (ed.), Mulla- Principles of Hindu Law, (Butterworths India: new
Delhi, 17th edition, 2000), p. 503.
24
Ibid., p. 502.
25
(1944) II MLJ 146.
22

A son who was born to the wife nearly a year after the partition
claimed reopening of the partition. The sons of junior wife
resisted the claim by saying that a share had already been
allotted to the father and the after born son was entitled to that
share only. The contention of after born son was that he was
entitled to reopen the partition as no share had been set apart
for the father at the partition. The court here distinguished the
present case from the case of Ganpat v. Gopalrao26 where the
father had reserved a share himself at the partition. It therefore
allowed the reopening of the partition. It held that the provision
for giving a share to the after-born son by his uterine brother out
of the property allotted to him couldnt qualify the right of the
after-born son to re-open the partition and claim a share in the
entire property.
Son begotten at the time of partition but born after partition is
entitled to a share as if he was in existence at the time of
partition. If no share is reserved for him at the time of partition,
he is entitled to have the partition reopened and share allotted
to him.27

ADOPTION
A person validly adopted to a deceased coparcenor by his widow
after the partition may also reopen a partition. This may be
explained with the help of the case of Ramchandra Shrinivas v.
Ramkrishna Krishnarao28. In this case one Shrinivas had two
sons, Ramchandra and Krishnaji. Krishnaji died in 1930.
Shrinivas and Ramchandra effected a partition between
(1899) ILR 23 Bom 636. In this case one Venkatrav who had three sons
effected partition. He gave 1/3rd share to his eldest son and retained 2/3 rd in
his own possession for the benefits of his two other minor sons. Later on he
had another son born to him and that son instituted a suit for fresh partition
ignoring the earlier one. The learned judge held that plaintiff was not
entitled to have a fresh partition as though the eldest son received one-third
share instead of one-fourth to which alone he is entitled. Here the effect of
partition was to separate the eldest son from the family. It was held that a
son-born after partition has no claim on the wealth of the separated brother
and that he has preferential claim over the wealth of his parents only. See,
Ibid., p. 148.
26

27

Supra n. 24.

28

MANU/MH/0125/1952.

themselves on 9-12-1932. This was followed by a registered deed

of partition executed on 16-12-1932. On this day itself Sundrabai
adopted Ramkrishna. Shrinivas then alienated the properties
which had fallen to his share by executing two deeds of gift in
favour of Ramchandras sons Annaji and Dattatraya, and a will in
favour of Ramchandras daughter Renukabai. Shrinivas died, in
1934 and then the adopted son brought the present suit in which
he claimed to recover his half share in the properties of the
family.
He argued that the partition effected by Shrinivas and
Ramchandra between themselves was intendedsolely to defeat
his claims as an adopted son and that in fact the said partition
had taken place not on 9th December but after his adoption on
16-12 1932. According to the plaintiff the family of the parties
continued to be joint on the date of his suit and he wanted his
half share in the properties on that footing.
The defendants claimed that the adopted son was not entitled to
claim any share in the proerty because the coparcenary between
Shrinivas and Ramchandra had been terminated by a prior
partition between them.
The Court here before giving any decision firstly referred to a
case of Anant Bhikappa v. Shankar Ramchandra29. In this case a
person Anant, was adopted in 1930, who purported to enter the
coparcenary of which Keshav was the last survivor. Keshav had
died in 1917 and the property vesting in him during his lifetime
had in fact devolved by succession on Shankar. Anant by his
adoption claimed to be the adoptive brother of Keshav and
thereby demanded that the properties, which Shankar had
obtained by succession on Keshava death, should be returned to
him. This claim made by the plaintiff was decreed by their
Lordships of the Privy Council on the reasoning that by the
death of the sole surviving coparcener the termination of
coparcenary is not effective or complete so long as there is any
potential mother in the joint family. Therefore it said that on the
death of Keshav in 1917, though seemingly coparcenory had
been terminated however it was revived by the adoption and the
adopted son entered this coparcenary by reason of his adoption.

29

46 Bom. L. R. 1 cited from, Ibid., para 10.

Keeping this in mind the Honble court held that the rights of
an adopted son are not affected by reason of the fact that the
joint status of the family which he seeks to enter by his adoption
has been terminated either by a prior partition between the
surviving coparceners or by the death of the sole surviving
coparcener. In either case the adopted son is entitled to enter his
adoptive family on the basis that the family is a joint and
undivided Hindu family and his rights in the property of the
family must be decided on that basis.30
The court here importantly said that the case of adopted son
must be included in the list of the exception to the rule that
partition can be made only once. Gajendragadkar, J in the
present case equated the position of an adopted son to that of a
son who was in his mothers womb at the time of the partition,
but who is born thereafter.
On the basis of above-mentioned reasoning it was held that the
coparcenary which had been determined by the partition
between Shrinivas and Ramchandra was revived by the adoption
of the plaintiff and that the plaintiffs claim should be treated as
a claim for reopening a partition which had been made without
recognising his share in the family properties. On this basis the
plaintiff was held to be entitled to claim one-half share in the
properties in suit.

ABSENT AND DISQUALIFIED COPARCENRERS

Though partition cannot be delayed by the absence of
coparcener, however his share cant be ignored because of the
mere fact that he was unable to claim for himself at the time of
partition. If at the time of partition no share is allotted to him or
an unequal, unfair share is allotted to him, on his return he is
entitled to reopen the whole partition. 31
Under Hindu law a person suffering from a disability that
disentitles him to inherit cannot claim a share on partition but is
entitled to maintenance. However if the defect is removed by
medicaments at a period subsequent to partition, the right of
30

Supra, n.28, para 10.

31

Supra, n.3, p.333.

participation takes effect by analogy to the case of a son born

after separation.32

REUNION
NATURE OF EVIDENCE
It was held in the case of Bhagwan Dayal v. Reoti Devi33 that to
constitute a reunion there must be an intention of the parties to
reunite in estate and interest. It was held that it is implicit in the
concept of reunion that there shall be an agreement between the
parties to reunite in estate with intention to revert to their
former status of members of a joint Hindu family. It was also
held that such an agreement need not be express, but must be
clearly implied from the conduct of the parties. In the present
case plaintiff argued that Lachman Prasad, his sons and
descendants constituted a joint family.
Pt. Lachman Prasad
Kashi

Jawala Prasad

Ram

Mst Batashi
Raghubar Dayal = Reoti Devi
Dayal Ram Lal
Def.

32

Ibid.,, pp.333-334.

33

AIR 1962 SC 287.

Banwari Lal

Bhagwan
Plaintiff

In the present case Jwala Prasad died in 1908; Kashi Ram, in

1924; Ram Lal, in 1914; Banwari Lal, in 1914; and Raghubar

Dayal, in 1933. Plaintiff here asserted that there was never a
partition in the family and that that there was never a partition
in the family, and that Kashi Ram, Raghubar Dayal and Bhagwan
Dayal, jointly started a business at Agra. During the course of
business they jointly acquired some properties. He said that
after the death of Kashi Ram, the business and the properties
acquired during his life time devolved upon the plaintiff and
Raghubar by survivorship, and that after the death of Raghubar
the said properties, along with the properties acquired during
the lifetime of Raghubar passed on by survivorship exclusively to
the plaintiff. This is contested by widow of Raghubir. Plaintiff
had also put forth an alternative argument on the even on the
assumption that there was a partition in the family of Lachhman
Prasad, a reunion should be inferred from the conduct of the
said three members during the lifetime of Kashi Ram and
thereafter. Court here on a detailed examination of fact found
that Kashi Ram had left the ancestral home long ago and joined
military and started business in Agra with is own savings after
quitting the job. Court also observed that none of the documents
executed during the lifetime of Kashi Ram denote the properties
as to be joint. Here it was also found that Ram Lal and Banwari
Lal lived separate from plaintiff. Taking into consideration all the
facts court held that the family of Lachman Prasad was divided.
The next question was whether there was a reunion between
Kashi Ram, Rahubir Dayal and Bhagwan Dayal. Plaintiff here
argued that since the start of the business in Agra, it has been
approximately 50 years and the consistent conduct of the parties
during that period establishes that there has been a reunion
between them.
Subbarao J. here, held that conduct of the parties must show an
intention to revert back to the status of joint family. He also held
that in such a case burden is heavy on the parties seeking to
establish that there was reunion. Therefore ambiguous pieces of
evidence cant sustain plea of reunion.
On the facts of the case the court held that the plaintiff failed to
establish reunion. Here in none of the document there is
mention of the property being joint. On the contrary there
existed documents, which said that there is no co-sharer or copartner in the property. All these facts were held to be decisive

of the fact that Kashi Ram was not a member of joint family.
Court here also held that coparcenary is a creature of Hindu law
and the same cannot be created by agreement of parties except
in the case of reunion. It is a corporate body or a family unit.
Therefore members of different branches of joint family cannot
form a subordinate joint family.
Another case on this issue is that of Parshuram v. Hirabai34. In
the present case a Hindu family consisted of one Rajaram and
Hirabai and their six sons. One of the sons was Parshuram who
is plaintiff in the present case. Before the present suit the
plaintiff has filed another suit to recover by partition, possession
of his 1/8th share. Lower court in that case had granted a decree
in favour of the plaintiff. This was taken to appeal. This appeal
was later withdrawn. However during the pendency of the
appeal Rajaram had died. Now plaintiff again went to court
seeking to amend his decree so as to increase his share from
1/8th to 1/7th. One of the questions that court here had to deal
with was whether the separation effected by decree in the
earlier suit, was a separation of plaintiff from defendants 35 or
there was separation of all the members of the joint family from
each other. For this examined the decree. The decree declared
the shares of the defendants and it enabled each of the
defendants to get his share separated on payment of necessary
stamp duty. It also contained the provisions for the marriage of
daughters of one of the defendants. Defendants also argued that
notwithstanding the decree for partition, which brought about
severance in the joint status, the defendants agreed to remain
united. This was tried to be proved by the will document of
Hirabai where it was written that income of defendant No.1 was
used for all the defendants and he was the manager of the
family. Also that the income of family lands was used for all
defendants.
The Honble Court then held that in the case where partition was
brought about by the decree, one would require strong evidence
to show that what was brought about by the decree was
displaced by some specific agreement between the members of
family.36
34
35
36

AIR 1957 Bom 59.

Here defendants were Rajaram, Hirabai and their rest of the five sons.
Supra, n. 34, para 9.

PARTITION AND PRESUMPTION THEREOF

It was held in the case of Jatti v. Banwari Lal 37 that when one
member of a joint family separates there is no presumption that
remaining members remained united. In the present case there
were four brothers Ishar Das, Harbhagwan, Rup Chand and
Daya Ram, who lived as a Hindu joint family. In 1876 Ishar Das
got separated. Thereafter business was carried out by the three
remaining brothers. In 1905 Rup Chand had died and in the
1914 his widow raised the present suit against the remaining
brothers claiming the 1/3rd of the partnership assets. Defendants
put forth the defence that though Ishar Das had separated in
1876, other brothers remained joint and that in consequence of
the death of Rup Chand, the plaintiff had only the right of
maintenance.
Court here held that there is no presumption, when onecoparcener separates from others, that the remainings remain
united. However Court decided in favour of defendants on the
basis of other technical issues.
Another case on this point is that of Biyyala Chinna
Narasamma v. Biyyala Venkata Narasi Reddy38. In this case there
were
three
brothers
namely,
Venkatarasa
(plaintiff),
Hanumantha, and Swami Reddy. Hanumantha Reddy had
entered into partnership with third parties for trade. After his
death Venkatarasa filed suits for dissolution of partnerships,
pleading that he and his brother Hanumantha constituted a joint
family at the time of Hanumanthas death. During the course of
the arguments it was found that plaintiffs brother Swami Reddy
had separated from them many a years ago through a reference
to the arbitrators. Therefore the question before the court to be
decided was whether plaintiff and Hanumantha constituted joint
family up to the time of latters death even after the partition.
Here even after Swami Reddys separation, plaintiff continued to
live with his brother (the deceased) in the family house where he
died. This was shown as to further the argument that the
deceased and plaintiff were joint at the time of death of
Hanumanthas death. Upon this the court emphatically stated
37
38

(1923) LR 50 IA 192.
AIR 1954 Mad 282.

that there is nothing inconsistent between division in status and

a continuation of living together in the family house. Here court
also considered whether living together even after partition
amounts to reunion or not. In the view of the court in a case
where intention to separate has been expressed through a
document as it was in the present case, it is reasonable to expect
that the intention to reunite will also be expressed through
document. However the court in the present case refused to
decide finally on the issue of plaintiff being joint with the
deceased and disposed off the matter on other grounds.

WHO MAY REUNITE

In the case of Balbux Ladhuram v. Rukhmabai39 it was held that a
reunion could take place only between the parties who were
parties to the original partition. In the present case there were
three brothers namely Girdhari Lal, Kunyaram and Ladhuram. At
about 1869 Kunyaram separated from the family by taking his
share. Now the ancestral shop was run by Girdharilal. At about
the time of partition Ladhuram had sent his wife and son to the
other place and he himself went to live with them after sometime
without drawing any share from the ancestral shop. Now the
ancestral shop was run by Girdharilal. After the death of
Ladhuram, Girdharilal called for son and widow of Ladhuram.
After Girdharilals death the business was run by the widows of
Girdharilal and Ladhuram. Now Balbux after attaining the age of
majority claimed the entire property on the account of being the
only survivor.
Here two-fold argument was taken by the plaintiffs. Firstly there
was no partition between Ladhuram and Girdharilal.
Alternatively it was argued that there was a reunion between the
plaintiffs mother and plaintiff and Girdharilal years before the
latters death. Upon this the court held that a reunion could take
place only between the persons who were parties to the original
partition. Court also observed that agreement to reunion
couldnt have been made by or on behalf of the minor-plaintiff.
Similarly in the case of Balasubramania Reddy v. Narayana
Reddiar40 it was held that reunion is product of agreement and

39
40

(1903) LR 30 IA 130.
AIR 1965 Mad 409.

minor is incompetent to contract therefore an agreement cant

agree to reunite.41
However it must be remembered that as it is open to father or
mother as his guardian to effect a separation on behalf of the
minor coparcener, it would be equally open to the father or
mother as his guardian to agree to a reunion on behalf of the
minor.
In the case of Nanuram v. Radhabai42 it was held that it is only
males in a Hindu family once separated that can unite and only
within limited range. In this case there was a man namely, Kisan
shinde who had two wives and through each wife he had a son.
Here partition took place in the family at instance of sons. Sons
took their one-fifth share and enjoyed it separately. On the other
hand Kisan had disposed off properties before his death in
addition to what was his own share. Plaintiffs contended that he
had no authority to do so as they were only tenant in common.
Defendants on the other hand denied any partition. They also
pleaded that assuming partition has been set out, nevertheless it
was two sons who got separated from the family and the others
remained joint. However the court here observed that the
partition was not only effected between the sons but also
between the mothers. Alternatively it was argued that there had
been a reunion between Kisan and his wives. Upon this the court
held that it is only males in a Hindu family once separated that
can unite and only within limited range. A wife and husband
once separated can not reunite. On this basis of reasoning the
court decided the case.
Interestingly in the case of Hira Singh v. Mt. Mangalan43 where
reunion was never argued the court observed that it is the
elementary principle of Hindu Law of Mitakshara School that a
member once separated can unite only with his father, brother
or paternal uncle but not with any other relation.

41
42
43

Supra, n.4, p.756.

AIR 1940 Nag 241.
AIR 1928 Lah 122.

In the case of Ram Narain Chaudhary v. Pan Kuer44 the question

before the court was whether Ram Kishore and Ram Narain who
were distant cousins could reunite. The court answered the
question in negative. In the present case the court recited the
paras 2 and 3 of chapter 2, section 9 in Mitakshara which read
as follows 2. effects which have been divided and which are
again mixed together are termed reunited. He to whom such
appertain is reunited parcener. 3. That cannot take place with
any person indifferently, but only with a father, a brother or a
paternal uncle, as Brihspati declares, He who being once
separated dwells again through affection with his father, brother
or paternal uncle is termed reunited. 45

CONSTRUCTION OF REUNION AGREEMENT

An interesting question came before the Karnataka High Court
with regard to reunion in the case of Parmanand L Bajaj v.
Commissioner of Income Tax46 was that whether a clause in
reunion agreement that parties need not put all the properties
acquired on earlier partition with the property of reunited family
invalidates reunion. In the present case Parmanad L Bajaj was
kartha of HUF prior to 1956 which consisted of Himself, his wife,
three sons and two daughters. During the period of 1956 to 1963
all the sons got separated by making declarations before
Magistrate. However in 1971 father and three sons entered into
reunion agreement that contained a controversial clause, which
read as follows:
(3) The properties got by the parties to this agreement on
partition prior to this reunion shall continue to be their
respective separate properties unless thrown into common
hotchpot of the HUF which has come into existence by virtue of
this agreement.
Within the three days of the agreement the father threw
properties of smaller HUF into the larger HUF. Now as per
Tribunal there was no reunion, as the three sons had not
brought the properties, which they had got on partition and
which were still in their possession.
The High Court here before reaching to any conclusion read the
44
45
46

(1934) LR 62 IA 16.
Ibid., p.20.
135 ITR 673 (1982).

reunion agreement document and other circumstances as a

whole and observed the following47:
(1) Father and the three sons formed an HUF earlier. (2) There
was a partition between them. (3) Reunion between father and
three sons is permissible under Hindu law. (4) The fact of
reunion is evidenced by a written document. (5) Act of
Parmanada Bajaj (father) by putting his property in the common
pool is evidence of subsequent conduct of at least one of the
coparceners. (6) There is no condition that the property thrown
into hotchpot after the date reunion shall not be available for
common enjoyment.
With regard to clause (3) the court observed that it is not
destructive of reunion, as according to the clause every
reuniting member can put his property into the joint family
properties.
Therefore the court held that by reunion was established in the
present case but clause (3) being repugnant to reunion is invalid
not vice-versa.

47

Ibid., p.687.

CONCLUSION
Conclusions of the study may thus be summarised as below:
Reopening of Partition:
If a partition is unfair and detrimental to the interests of
minors the same can later be reopened.
A partition can be reopened at the instance of minor if the
partition was unfair or prejudicial to the interest of minor
even where there was no fraud or misrepresentation or
undue influence and despite the fact that his branch was
represented by his father at the partition.
A partition can be reopened in the case of fraud in division
of property.
Where at the time of partition stranger property was
included by mistake and the same is later displaced by the
claim of better-title holder, partition can be reopened.
A son begotten and born after partition can reopen the
partition where the father has not reserved a share to
himself on a partition with his sons.
Where the father has reserved a share to himself, a son
who begotten and born after the partition is not entitled to
reopen the partition.
A person validly adopted to a deceased coparcener by his
widow after the partition may also reopen a partition.
Partition can be reopened by the absentee coparcener on
return for whom the share was not reserved. Partition can
also be reopened by the disqualified coparcener whose
disqualification has been removed.
Reunion:

To constitute a reunion there must be an intention of the

parties to reunite in estate and interest. It is implicit in the
concept of reunion that there shall be an agreement
between the parties to reunite in estate with intention to
revert to their former status of members of a joint Hindu
family.
Members of different branches of joint family cannot form
a subordinate joint family.

 Where partition is effected by decree, one needs strong

evidence to show that members of the family reunited.
When one member of a joint family separates there is no
presumption that remaining members remained united. An
agreement to remain united or to reunite must be proved
like any other fact.
Where intention to separate has been expressed through a
document, intention to reunite should also be expressed
through a document.
Reunion can take place only between the parties who are
party to the original partition.
An agreement of reunion cannot be made by or on behalf of
minor.
Only males in a Hindu family once separated can unite.
Under Mitakshara law a member once separated can unite
only with his father, brother or paternal uncle but not with
any other relation.
A reunion agreement must be read together with other
facts as a whole to establish reunion.

BIBLIOGRAPHY
BOOKS
A Kuppuswami, (ed.), Maynes Treatise on Hindu Law &
Usage, (New Delhi: Bharat Law House, 13th edition, 1995).
G Sarkar, et.al., A Treatise on Hindu Law, (Calcutta:
Eastern Law House, 5th edition, 1924 ).
Raghavachari, et.al., Hindu Law: Principles and Precedents
(Madras: Madras Law Journal, 7th edition, 1980).
S A Desai (ed.), Mulla- Principles of Hindu Law,
(Butterworths India: new Delhi, 17th edition, 2000).
W Markby, Hindu and Mohamedan Law, (Delhi: Inter-India
Publications, 1977).