A PROJECT REPORT OF FAMILY LAW

ON

REOPENING OF PARTITION

Submitted to-
Dr. Jaimala
Faculty of Family Law
UILS, Panjab University
Submitted by-
Ganga Ram Mittal
Roll number-27/21
Section A
BA.LLB(4th Semester)
 ACKNOWLEGEMENT

I would like to convey my thanks to my project guide Dr. Jaimala ,

Faculty of Family Law and Professor Rajinder Kaur, Director of
University Institute of Legal Studies, Panjab University,
Chandigarh for guiding me immensely through the course of the
project. They have always evinced keen interest in my work. Their
constructive advice and constant motivation have been responsible
for the successful completion of this project.
Then I would like to thank the entire faculty of University Institute
of Legal Studies, Panjab University, Chandigarh, for always
motivating to give the best.
Last but not least, I would like to thank all those who had helped
directly or indirectly towards the completion of this project.
This project report has been submitted as per curriculum of
BA.LLB(Hons.) by Panjab University, Chandigarh.

Ganga Ram Mittal

Roll number-27/21
Section- A
BA.LLB(4th Semester)

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 TABLE OF CONTENTS

INTRODUCTION..........................................................................................................3
WHAT IS PARTITION?................................................................................................4
WHO CAN AFFECT PARTITION?..............................................................................5
REOPENING OF PARTITION......................................................................................6
GROUNDS FOR REOPENING OF PARTITION OF HINDU JOINT FAMILY
PROPERTY....................................................................................................................7
(1) Use of Malpractices..............................................................................................7
(2) Son in womb or conceived and born after partition..............................................8
(3) Minor coparcener..................................................................................................8
(4) Absentee Coparcener............................................................................................9
(5) Genuine Mistake...................................................................................................9
(6) Disqualified Coparcener.....................................................................................10
(7) Adopted son........................................................................................................10
(8) Property added after partition.............................................................................10
CONCLUSION.............................................................................................................11
BIBLIOGRAPHY.........................................................................................................12

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 INTRODUCTION
The institution of Hindu joint family has evolved from the ancient times where people
with strong relationships live with each other either by ties of marriage, kinship or
descendants. Basically it consists of all members descending lineally from a common
male ancestor together with the wives, unmarried daughters of the common ancestors
and of the lineal male descendants represented by the Karta. According to Mitakshara
law of coparcenary, the lineal male descendants of a person up to third generation
acquire a birth ownership in the ancestral property of such person. A coparcener can
demand his share from the Hindu undivided family since he has the right in the assets
of the Hindu undivided family. Hence, when we look into the historical family concept
of India, traditionally, it will begin as a joint or undivided family.
In the joint and undivided family concept, the Karta of the family manages all kinds of
family decisions on behalf. The primary purpose of the Karta of the family does his
work as a responsible person of his family. The Karta has a right to sell the family’s
property for the beneficial purpose of the family. In that concept, we should know that
the Karta of the family manages the family’s property on behalf of the family is trusty.
All family members are known as a coparcener of that property. Like joint property,
all family members have equal rights in that property. Any family member as a
coparcener is entitled to ask for partition and receive his share from the joint family
property.
At the time of partition of the joint Hindu family’s property, there should be the joint
property of the family members. Any coparcener’s personal property acquired in an
individual capacity can not include in the partition. A definite and unequivocal
intention of a coparcener to separate himself from the family is all necessary to affect
partition. 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.
The Karta or any family members can not be prevented from the partition; any family
member can demand partition. Suppose the partition is made out between the family
members with cause to mistake, fraud, cheating, or against provisions of the law; If
any coparcener who affects his legal rights through the partition he can demand
reopening the partition. once effected, is usually final and binding on the parties and
cannot be opened at the whims and pleasures of the parties. They may enter into
transactions relating to them, so as to create valid titles in favour of even third parties.

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Therefore, in this project the concept of reopening of partition will be discussed in
great detail.

WHAT IS PARTITION?
Partition in joint hindu family 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 other words, partition means to divide into parts or to
separate, and under Hindu law, it generally means a division or splitting of a joint
Hindu family into smaller, separate and independent units, with conferment of
separate status on the undivided coparceners. No partition is possible unless there are
at least two coparceners in a joint family, as it is not merely the division of the family,
but in essence, it is the disruption of the undivided coparcenary in a joint family . 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.
There are two concepts- (i) Dejure partition- It brings the severance of status or
interest. This happens when the community of interest is broken, either at the instance
of one of the coparcener or by the agreement of all the coparceners. In such a partition,
the shares become clearly demarcated and are no longer fluctuating. (ii) De facto
Partition- It is a partition by metes and bonds. This happens when the unity of
possession is broken. It is only after the de facto partition, the respective shares of the
coparceners become their exclusive shares. In the Mitakshara school, partition simply
means the severance of status or interest.. A definite and unequivocal intention of a
coparcener to separate himself from the family is all necessary to affect partition.
Thus, a partition is deemed to be complete by the severance of the status that is de jure
partition.
There are two types of partition- (a) Total Partition (b) Partial Partition. In total
partition, the whole property of a Hindu Undivided Family undergoes a total division
of property and the same will be divided in between all the coparceners and family
cease to exist as a Hindu Undivided Family. On other side, partial partition can be
made when some of the members go out on partition & other members continue as
being a member of the family. In such a partition, the rest of the coparceners maintain
the joint status with respect to the remaining property.The effect of partition is that
after the compilation of the partition in a joint family, the coparcenary status of the

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family member will end. Thus, when a partition is made out among the family
members, they all acquire individual property with their title. As well, all disputes
regarding the joint family property will come to an end in the future.

WHO CAN AFFECT PARTITION?

Every coparcener in the coparcenary has the right to ask for partition provided that he
should be a major and of sound mind. The demand of the coparcener to seek partition
whether reasonable or not, if manifested clearly can never be ignored by the Karta and
he is bound to comply with it. There are two necessary conditions of partition, which
brings about the severance of the joint status or interest.
First, is the formation of intention to separate. The declaration of an intention to
separate. The declaration involves the expression of intention plus communication of
the intention to sever. The declaration of intention that actually severs the status can be
verbal or in writing, but it must be clear and unambiguous. The unequivocal
communication of intention must be the conscious and informed act of the coparcener.
Father, son, grandson, great-grandson, son conceived at the time of partition but born
after partition, adopted son, minor coparcener, absent coparcener, alienee, and
daughters not only have a right to call for partition but are also entitled a share on
partition at the same time. However, a father has a superior right to ask for partition.
He cannot only affect a partition between himself and his sons, but can also impose a
partition on his sons inter se. In exercise of the power of the father to call for partition,
the consent of sons is immaterial. But the father while exercising such power must act
bona fide. If the division made by him is unequal, fraudulent or biased, partition can
be reopened. With respect to the minor’s share, the father retains his control as a
guardian
Since, section 8 of the Hindu Succession Act makes no distinction between the
separated son and undivided sons in the matter of succession to the separate property
of Mitakshara Hindu, it is to be noted that, if there are other sons to father which have
separated from him, then they can also claim to inherit father’s separate property along
with the undivided after born sons. But where a coparcener who has relinquished his
share in the partition, the son begotten after the renunciation can’t claim status of a
coparcener, as his father can no longer be regarded as a part of the coparcenary.
There is another category of the members of the joint family who have no right to
partition, but if partition takes place, they are entitled to share. The son born out of the
void or voidable marriages is a legitimate child of the parents and is statutorily entitled

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to inherit their separate property, but he cannot inherit from any other relation of the
parents. A statutory legitimate child would be entitled to inherit the property of the
father but would not be a coparcener with him and would not get a share at the time of
the partition. In other words, he is not entitled to seek partition during the lifetime of
the putative father, it is only after the father’s death, he is entitled to a share on
partition.

REOPENING OF PARTITION
When the partition is effected, the coparcener hold the exclusive right to enjoy his
share as a separate property because of the severance of the community of interest. But
a question arises that whether any coparcener can demand to reopen the partition?
Generally the partition of Joint Hindu property is irrevocable which means unable to
be unalterable. 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 reason is that
upon partition, the erstwhile coparceners hold their shares as their separate properties,
with an exclusive and valid title to them. They may enter into transactions relating to
them, so as to create valid titles in favour of even third parties. Partition cannot be
reopened on unsubstantiated claim of nonmention of survey number of the property
that is already partitioned1
Under the Shastric law, Manu says: Once is the partition of inheritance made, once is
a damsel given in marriage; and once does a man say “I give”, these three acts of good
men are done once for all and are irrevocable. 2 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. Where the partition
was effected in 1984 and remained unchallenged for a period of 30 years, no second
partition would be allowed of the same property. 3 The court have taken the view that
though a partition once effected is final, yet it can be reopened in some circumstances.
If readjustment is possible partition need not be reopened. If equities cannot be solved
by readjustment partition may be reopened. When the partition is made out by family
members of a joint Hindu family, if it is not justified for any coparcener of the family,
or is made with the mala fide intention, fraud, misrepresentation, or cheating with any
1
Charles v S Muthu, AIR 2020 (NOC) 604 (Mad) : AIROnline 2019 Mad 273
2
Manu IX, pp 47, 48.
3
Chaman Lal v Dewan Chand, AIR 2011 J&K 165.
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member. He has the right to reopen such partition on that ground. Based on the
fraudulent manner, the affected person of the family can reopen that. The other thing
is that if a partition is made out on the grounds of mistake, fraud, absence of another
coparcener, or ignorance of minor’s coparcener right, etc. On that grounds, the
partition can reopen.

GROUNDS FOR REOPENING OF PARTITION

OF HINDU JOINT FAMILY PROPERTY

Any family member of the joint or undivided family is entitled to ask or demand to
reopen the partition. On behalf of a Minor coparcener, the guardian or the next friend
can request such reopen of the minor’s partition. They can move to court if a minor’s
property right damages and to pray for an injunction to protect property rights. Even
though whether the partition is completed, they can challenge that and demand
reopening it for filing a lawsuit against another coparcener of the property. When the
partition comes out on the record among the members of the joint family member that
can not be reopened ordinarily, except for any particular circumstances, that partition
will be treated as a final that can not revoke at all.

If any circumstances come out, the partition can reopen. All the grounds are discussed
below-

(1) Use of Malpractices

A coparcener feels another member takes a disadvantage or gains more benefits in the
partition of joint family property. Then the affected coparcener has the legal right to
protect his share by way of reopening the partition.When the whole scheme of
distribution of properties is fraudulent,4 it will be ordered to be set aside, unless the
person injured has acquiesced in it with full knowledge of all material facts.. Proper
communication and consent is necessary among the coparceners of the Joint Hindu
family to reopen the partition. A partition effected among the Joint Hindu family with
their consent cannot be reopened. If it is proved that the consent of the coparcener is
obtained by any malpractices like fraud, coercion, undue influence, misrepresentation,
etc the partition is eligible to be reopened. A coparcener is entitled to reopen the
partition on the discovery of fraud. Full knowledge of all the facts is important as
4
Janki v. Revendra, 1981 Ker. 205.
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court requires a strict proof of facts in such cases. The partition might be reopened if
made fraudulently. Every coparcener has an equal right in the joint family property.
Where one or more of the coparceners conceal the joint family property at the time of
the partition, to gain an unjust and undue advantage over the others, or with an
intention of getting a bigger share than what they would have been entitled to
otherwise, the partition can be re-opened on the discovery of this fraud, 5 but in a suit
for a reopening of the partition, fraud cannot be added as a ground subsequently, 6 at a
later stage of trial. More instances- when some worthless assets have been given to
some coparceners as valuable assets or when a property which does not belong to the
family has been allotted to some coparcener, 7 or when it is unjust and unfair or
detrimental to the interest of minors, partition will be re-opened. 8 However, fraud
cannot be added as a ground at a later stage of trial and also if no fraud pleaded
initially in the plaint, the plea cannot be allowed to be changed belatedly that the
partition was fraudulent

(2) Son in womb or conceived and born after partition

At the time of a partition, the son in the womb also has the right of family property. If
his share is not reserved in the partition, he can demand his share by reopening to
partition.9

Sons, grandsons and great grandsons have a right to partition. With respect to the son
conceived at the time of partition but born after partition, Hindu law equates a person
in a womb to a person in existence. The partition should be postponed till the birth of
the child if the pregnancy is known, but if the coparceners do not agree with the delay,
then the share equal to the share of the coparceners should be reserved. But in cases
where no share of the posthumous child is reserved, then he can demand for the
reopening of partition after his birth through any representation. The right of such a
son depends upon whether his father has taken a share for himself at the time of
partition from his sons- (i) When the father has not taken a share for himself, the after
born son has a right to get the partition reopened. (ii) But when the father has taken or
reserved a share for himself, the after born son becomes a coparcener with his father
such son born after the partition is entitled to have the partition reopened, but in lieu
thereof he is entitled, after the father’s death, to inherit not only the share allotted to
the father on partition, but also the separate property of the father.
5
Moro Viswanath v Ganesh, (1873) 10 Bom HC 444; A Venkappa Bhatta v Gangamma, AIR 1988 Ker 133
6
Raghunath Tiwary v Ramakant Tiwary, AIR 1991 Pat 145.
7
Debabrata v. Janendra, 1960 Cal. 381.
8
Garusamy v. Jayashman, 1996 Mad 212.
9
Hammant v. Bhimacharya, (1888) 12 Bom. 105.
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(3) Minor coparcener
In partition, the right of the minor coparcener is as same as that of the major
coparcener. A minor is a person of immature intellect and the court has the duty to
protect his rights by acting as parens patriae. If minor’s interests are prejudiced by the
Karta by squandering the Joint Family Property, the minor’s guardian or the next
friend of the guardian may file the suit for partition on behalf of the minor. If the
partition earlier effected was unjust and unfair towards one or more of the
coparceners, it can be re-opened, irrespective of the length of time that has passed
since the earlier partition10
The suit filed itself will bring the partition of the joint family property. In Venkata
Subramania v. Easwara,11 the Madras High Court held that when in a partition one
member gets an excess share, and out of the income of the excess share, he acquires
fresh property, he does not hold the fresh property for the benefit of the other sharers
when the partition is subsequently re-opened on the ground of unequal partition.
However, he will be liable to account for the co-ownership funds used by him.
However, if he fails to do so within that period, the limitation issue will arise against
his property right. That may be, he can lose the right to reopen the joint Hindu family
property partition.

Hence, the court has the duty to look whether the partition is for the benefit of the
minor or not, if the partition is prejudicial to the minor, the court must demand
injunction and not allow the partition. But where the earlier partition was detrimental
to his interests, it would be the duty of the court to protect the interests of the minor
and allow a reopening.12 The court has also protected the rights of the minor
coparcener whose share is not allotted to him due to injustice and unfairness and can
demand injunction to stop the partition. It doesn’t matter that there was no fraud,
mistake or misrepresentation on the part of the other coparceners. The minor
coparceners close friend and guardian can demand reopening of the partition on behalf
of him.

(4) Absentee Coparcener

If a coparcener remains absent at the partition process and does not get his share, he is
entitled to reopen that partition 13. In other words, coparcener absent at the time of

10
Ratnam Chettiar v S M Kuppuswamy Chettiar, AIR 1976 SC 1; A Ganapathi Nayak v Sri Devenatha, (1999) 1 Hindu
LR 497 (Kant).
11
(1966) 1 Mad. 468.
12
Sukhrani v Hari Shankar, AIR 1979 SC 1436.
13
Umakantha v. Lilithaban (1988) 2 H.L.R. 37 (Kant.).
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partition, who has a share in the coparcenary, has a right to call for the reopening of
the partition if the partition has taken place in his absence

(5) Genuine Mistake

The mistake cannot count in the way of fraud. If the joint Hindu family property left at
the time of the partition mistakenly, that can be compiled with partition. In terms of
mistakes, the intent of a coparcener is not to commit fraud or cheating. Therefore,
there may be a situation during partition that there has been genuine mistake during
the division of property which may cause loss to a coparcener. In such circumstances,
the coparcener can claim to be reimbursed for the loss of the property.

(6) Disqualified Coparcener

If, due for some reason, any coparceners became disqualified, then legally, he lost his
right to receive a share from the joint Hindu family’s property. On that ground, the
partition can reopen. For instance- a disqualified coparcener, who recovers from his
disqualification after the partition, can get the partition re-opened, if he was an after
born son14. Hence, there might be a situation in Joint Hindu family where any of the
coparcener is suffering from insanity or is lunatic can disqualify him from inheriting
and disentitled him from any share in the partition. But after recovering from his
disqualification he is entitled to demand reopening of the partition

Various grounds of disqualification were recognised by the Hindu law, such as

congenital and incurable blindness, insanity, deafness, dumbness, virulent and
incurable leprosy and other incurable diseases that made sexual intercourse
impossible. All these grounds except congenital lunacy or insanity have now ceased to
exist as a part of the Mitakshara law by virtue of the Hindu Inheritance (Removal of
Disabilities) Act,1928.Further, if a member of the family has not a congenital
disqualification, but later becomes insane, he will not be deprived of his interest. The
disqualified coparcener who neither has a right to call for partition nor is entitled to a
share, after recovering from his disqualification can call for the reopening of the
partition.

(7) Adopted son

The adopted son is also eligible to get equal rights from the joint Hindu family, the
same as a natural son. That right confers in the provision of section 12 of the Hindu

14
Krishan v. Sami, (1886) 9 Mad. 64 (F.B.).
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adoption and maintenance act,1956. Thus he is also entitled to reopen partition if he is
adopted after the partition; he can reopen such partition for his right. Even if after his
adoption, a son is born to a father, then also shares of adopted sons and natural sons
will be equal. Thus, an adopted son is entitled to reopen the partition. Adopted child is
also entitled to a share in accretions to the family property which remained with the
surviving coparceners.15

(8) Property added after partition

Where, after a partition has been effected, it is discovered that some properties were
left out, either by mistake or deliberately, due to some fraud or concealment by either
a family member or even a stranger, or where some properties belonging to the family
had been seized or lost, and were recovered subsequent to the partition, by the family,
and in the interest of the family members, it is desirable that a fresh partition should be
made, there can be a re-opening of the partition, but if a distribution of the additional
properties can be effectively made without reopening the earlier partition, then the
earlier partition should not be disturbed and the recovered property should be
distributed among the family members.16

CONCLUSION

The partition is generally irrevocable in nature. No partition is possible unless there

are at least two coparceners in a joint family, as it is not merely the division of the
family, but in essence, it is the disruption of the undivided coparcenary in a joint
family. 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.

However, for the purposes of equity, it is advisable to reopen the partition already
affected. Even the laws of Manu advise the additional distribution of property which
was added subsequent to the partition. The rationale behind is to prevent gross
injustice to the member of the family. There are other grounds as well which are
15
Krishtappada v. Gopal, 1957 Bom. 214 (F.B.).
16
Poonam Pradhan Saxena, Family Law Lectures: Family Law II, 596
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discussed in which the partition can be reopened such as in coparcener absent at the
time of partition, who has a share in the coparcenary, has a right to call for the
reopening of the partition if the partition has taken place in his absence, and in case of
mistakes, the intent of a coparcener is not to commit fraud or cheating. Therefore,
there may be a situation during partition that there has been genuine mistake during
the division of property which may cause loss to a coparcener. In such circumstances,
the coparcener can claim to be reimbursed for the loss of the property and in case if .
minor’s interests are prejudiced by the Karta by squandering the Joint Family
Property, the minor’s guardian or the next friend of the guardian may file the suit for
partition on behalf of the minor.

In India, the joint Hindu family concept is significantly broader under Hindu law than
other laws; it takes care of every family member and provides an equal property right
as a coparcener of the family property. By using a way of partition, they can acquire
their share. The injustices in the Joint Hindu family is prevalent from the older times.

The issue of distribution of property is a highlighted problem, whose laws and rules
are provided under the subject of family law where rights and obligations are provided
to every needed member of the family to prevent unjust and unfair advantage to
anyone. Even in the issue of reopening of partition the rights of the members are
protected who are entitled to claim share by reopening the partitioned property

BIBLIOGRAPHY

BOOKS

 Poonam Pradhan Saxena, Family Law Lectures: Family Law II ( Lexis Nexis,
Gurgaon, 2022)

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  R.K Aggarwal, Hindu Law: Codified and Uncodified (Central law Agency,
Allahabad, 2016)
 Dr. Ashok K. Jain, Family law- II, (Ascent Publications, Delhi, 2017)

INTERNET SOURCES

 Adil Khan, Reopening of Partition in a Hindu Joint Family, available at:

https://blog.ipleaders.in/reopening-of-partition/ (last visited on 17 March, 2023)
 Sandeep Bhatt, What is the reopening of partition under Hindu law? , available
at: https://lawblog4u.in/reopening-of-partition-under-hindu-law/ (last visited on
17 March, 2023)
 Raman Saxena, Reopening of partition in Hindu joint Family, available at:
https://www.lawcolumn.in/reopening-of-partition-under-hindu-joint-family/
(last visited on 18 March, 2023)
 John, Reopening of partition under Hindu Family law, Pathle available at:
https://www.pathlegal.in/Re-opening-of-Partition-under-Hindu-Family-Law-
blog-1294806 (last visited on 18 March, 2023)

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