A

Project Report on

IN TEXT OF MANU RE-OPENING OF PARTITION

Date of Submission: 31/10/2018

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 ACKNOWLEDGEMENT

A jug fills drop by drop…that is what Lord Buddha said years ago, without those drops the jug would be
useless and it is a moral obligation upon me to acknowledge all those drops which helped me to prepare
the project. Right from my teacher Mrs. Priyanka dhar who taught us the importance of law in our life
with similar perseverance as a gardener does in nurturing the tender flowers of his garden,.to the various
books and case books found in amass in the library certainly proved to be of great help akin to a north star
for my journey.

I would also like to thank Larry page and Bill Gates for developing such wonderful software as Google
and Microsoft word respectively. The former being a terrific search engine which carried the whole
project efficiently and exposed me to innumerable sites regarding the legal diamensions of the project
topic. The latter being a type writer with its own brains which has everything from the spellchecks ,to font
styles to the clip art without which the whole project would have remained in it’s foetal stage.I would also
like to thank my fabulous friends for not bothering me the least while the project was being mooted out.

Lastly I would like to thank my parents and the luminous silhouette which tends to guide and look after
me not just in the project but also in my life despite my dearth of affection and sincerity towards them.

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 INTRODUCTION

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

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

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

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

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

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

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

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

A Coparcenary

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

Ancestral & Self Acquired properties.

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

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 PARTITION
Partition is the severance of the status of Joint Hindu Family, known as Hindu Undivided Family under
tax laws.

Under Hindu Law once the status of Hindu Family is put to an end, there is notional division of properties
among the members and the joint ownership of property comes to an end. However, for an effective
partition, it is not necessary to divide the properties in metes and bounds.

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

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

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

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

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 TYPES OF PARTITION:

1. Total Partition – It is the type of partition in which the entire family property is being divided amongst
the coparceners. After the total; partition takes place, the HUF ceases to exist. All property is being
divided among the coparceners of the Hindu Undivided Family.

2. Partial Partition – It is the type of partition which is partial as regards either the person constituting the
joint family or as regards the properties belonging to the joint family or both. In case of partial partition,
some coparceners may separate from the joint family but other members continue to be a part of the joint
family. In this case as regards the property, there may be a division or severance of interest in respect of
some part of the estate of the joint family, while the rest of the estate may continue to remain as a part of
the property of the joint family.

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

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

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

A partition is therefore irrevocable. However as mentioned above there could be situations where a
reopening may be advisable. It may be imperative to have a redistribution of the properties in order to
prevent gross injustice to the members of the family. An additional distribution was also advised by Manu
where more property was subsequently added or discovered.

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 EXCEPTIONS WHERE RE-OPENING CAN BE CLAIMED
RIGHT OF SON:

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

Where in partition between two brothers, one brother transferred a portion of his share to the other in
consideration of the fact that the latter had discharged joint family debts out of his separate property , the
son of the former cannot question the transfer.2

FRAUD:

A partition may be re-opened ,if any coparcener has obtained an unfair advantage in the division of the
property by fraud upon the other coparceners.3

If in a suit for partition, no fraud is pleaded initially in the plaint, the plea cannot be allowed to be changed
belatedly that the partition was fraudulent.4

However fraud vitiates everything and even a belated plea of fraud cannot be discountenance. Where a
consent decree of partition was sought and it was sought and it was found that a widow was shown to have
relinquished her rights, on the evidence of fraud being adduced and accepted ,the decree of the partition
was set aside.5 Hence where one or more copareceners conceal the joint family property at the time of

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

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partition,to gain an unjust and undue advantage over others. Or with an intention of creating a bigger share
than what they would have been entitled otherwise, the partition can be re-opened on the discovery of
fraud.6 However in a suit for reopening of 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
6
Bishambar Nath v Lala Amar,AIR 1937 PC 105
7
Raghuynath Tiwary v Ramakant Tiwary, AIR 1991 Pat 145
8
Ratnam Chettiar v M Kuppuswamy Chettiar, AIR 1976 SC 1

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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
copareceners did not belong to the family but to the stranger or that it was subject to a mortgage,the
coparcener to whom such property has been allotted is entitiled compensation out of the shares of the
other coparceners, and the partition may if necessary be reopened for the adjustment of the shares.10

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

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

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

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

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

9
Radhamanin Bhaiyanin v Dibakar Bhuiya, AIR 1991 Pat 95
10
Maruti v Rama, (1897) 21 Bom 333
11
Ratnam Chettiar v Kuppuswami, AIR 1976 SC 1
12
K Jagannathan v A M Vasudhevan Chettiar, AIR 2001 Mad 184

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 CASE LAWS
1. Ratnam Chettiar v S M Kappu Swami13

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

2. In Raghunath Tiwary v Ramakanth Tiwary14

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

3. Anathachari v Krishnaswami15

Where in partition between two brothers, one brother transferred a portion of his share to the other in
consideration of the fact that the latter had discharged joint family debts out of his separate property , the
son of the former cannot question the transfer.

4. Maruti v Rama16

Where after a partition has been made it was discovered that the property allotted to one of the
copareceners did not belong to the family but to the stranger or that it was subject to a mortgage, the
coparcener to whom such property has been allotted is entitiled compensation out of the shares of the
other coparceners, and the partition may if necessary be reopened for the adjustment of the shares.

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

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 CONCLUSION
A partition is generally irrevocable. However as mentioned above there could be situations where a
reopening may be advisable. It may be imperative to have a redistribution of the properties in order to
prevent gross injustice to the members of the family. An additional distribution was also advised by Manu
where more property was subsequently added or discovered.

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

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

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

THANK YOU

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 BIBLIOGRAPHY
 Davis, Jr. Donald R. 2004. “Dharma in Practice: Ācāra and Authority in Medieval Dharmaśāstra,”
Journal of Indian Philosophy
 Creese, Helen. 2009a. Old Javanese legal traditions in pre-colonial Bali. Bijdragen tot de Taal-,
Land- en Volkenkunde
 Fuller, C.J. 1988. "Hinduism and Scriptural Authority in Modern Indian Law." Comparative
Studies in Society and History
 Hooker, M.B., ed. 1986. The Laws of South-East Asia. Volume 1: The pre-modern texts.
Singapore: Butterworth & Co.
 Jain, M.P. 1990. Outlines of Indian Legal History. 5th Ed, Nagpur, Wadhwa & Co.
 Aggarwal,RK. Hindu law, Central Law Agency.

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