PARTITION

FAMILY LAW SUBMISSION

SUBMITTED BY -
SHASHANK SHEKHAR
SAP – 500054906
ROLL – R154216093
BA., LL. B. (HONS.) WITH SPECIALIZATION IN CRIMINAL LAWS (2016 - 2021)
BATCH - 2
INTRODUCTION
A text of Manu, once the partition of inheritance made: Once is a damsel given in the marriage
and once does a man say, "I give", these three are done for once and irrevocable. Going by that, a
partition once implemented cannot be undone and will remain effective for everyone. However,
this is not the case. A partition in a joint hindu family can be re-opened under certain specific and
pre-defined exceptional situations. The project first shortly overviews what a joint hindu family
is,what a coparcenary is,what is meant by a partition and then finally discusses the circumstances
under which a partition already effected can be re-opened or demanded to be re-opened. An
account of some decided cases follows and finally the report concludes.

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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.

 COPARCENARY - Within the joint family there is a narrower body called the
Coparcenary. This includes the eldest male member + 3 generations. For eg : Son – Father –
Grandfather – Great Grandfather. This special group of people are called coparceners 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 coparceners – now daughters are equally coparceners after
2005. They can get their share culled out by filing a suit for partition at any time. A coparcener’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 endeavor. 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.

 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.

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 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.

 REOPENING OF PARTITION - Under the Hindu Law, partition is made is made only
once but there are some exceptions to this rule. The posthumous 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 erstwhile 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 favor 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

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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suit for reopening of 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: Where after a partition has been made it was discovered that the property
allotted to one of the coparceners 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 entitled

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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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 summarized
by the Supreme Court in a decision11 in the form of proposition:
o 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.
o 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.
o 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 Vs. 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. Raghunath Tiwary Vs. 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 Vs. 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 Vs. 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.

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