Partition refers to the act of dividing. According to Webster's Law Dictionary,
the word Partition means a separation by a court of real estate owned jointly
into two or more separately owned parcels, so that each of the former joint
owners may enjoy having his or her own share in the estate.
The word partition
or division legally means a division of interest or a division of possession or
both. Any division of property between co-owners, resulting in individual
ownership of the interests of each, is called a partition. On partition, the
joint status comes to an end, giving existence to nuclear families or different
joint families. While the reopening and reunion of partition plays a vital role
in understanding the concept of partition in total.
The first part of the paper
focus on the concept of partition, who can effect partition and the differences
existing between Mitakshara and Dayabhaga. The second part deals with the
reopening of partition and classes of people who are entitled to claim reopening
of partition. The final part of the paper explains the reunion of partition and
its effects with relevant case laws.
Partition is an art by which a coparcener serves his relation with his joint
family and losses his status of coparcener while becoming an independent
individual from the links of joint family. Partition means a numerical division
of property thereby 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 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. The ways of partition can be of interest
expression of intention, by notice, will, agreement, arbitration or by suit.
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."
However, there are certain exception to the principle that "shares are divided
only once known as reopening of partition." A text, of Brihaspati, being a
leading text states that "He who, being once separated dwells again through
affection with father, brother or paternal uncle, is termed reunited with him."
It is a process by which, the parties that have been separated once, can again
constitute together to form a Joint Hindu Family.
Who Can Demand Partition?
Every coparcener being major and of sound mind in the coparcenary has the right
to ask for partition. 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. 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.
A father has a superior right to ask for partition. 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 bonafide. 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. However, the
minor's share after partition would constitute as his personal property and even
the father has no right to alienate it without court's permission. The minor
coparcener cannot avoid the partition affected by his father, till he attains
majority. He can, however, repudiate it after attaining majority.
The son born out of the void or voidable marriages is a legitimate child of the
parents and is statutorily entitled 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
In Raghvamma v. Chenchemma
, Supreme Court held that it is a
settled law that a member of a joint family can bring about separate status by a
definite declaration of his intention to separate himself from the family and
enjoy their share separately.
Distinction Between Mitakshara And Dayabhaga Laws:
|The birth of a son in the family leads to him
getting the property right at his birth from his father. After turning into
an adult, he can demand the property from his father even if his father is
||The successor has no right in the family property
as long as the father of the successor is alive.
|He can prevent his father from an unauthorized
alienation by having an opinion in the ancestral property.
||The father being the sole and absolute owner of
the property, can deal with it the way he fathoms.
|A coparcener does not have a right to alienate
his share and after his death if he does not have a successor, his property
gets transferred to his brother.
||Male or Female adults have the right to demand a
partition and can alienate the property.
|The widow of the coparcener only has the right to
the maintenance and has no right in the partition.
||The widow can demand partition after being a
coparcener with her late husband's brother.
|The unity of the ownership is the essence of the
||Possession is the essence of unity and not
Reopening Of Partition:
Under the Shastric law, Manu states that once the partition is made or once the
damsel is given in marriage or once the 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 transactions relating to them, to create valid titles
in favor of even third parties. Moro Vishvanath v. Ganesh Vithal
allotment with bonafide made in course of a partition by common consent of the
coparceners is not open to attack when the shares are not equal or not strictly
in accordance with those settled by law.
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.
Grounds For Reopening Of Partition:
A partition may be reopened, if any coparcener has obtained an unfair advantage
in the division of the property by fraud upon the other coparceners. A
coparcener may conceal the Joint Family Property at the time of partition, to
gain an unjust and undue advantage over the others; the partition can thus be
reopened on the discovery of fraud.
- Son In Womb:
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. 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. 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:
When the father has not taken a share for himself, the after born son has a
right to get the partition reopened.
But when the father has taken or reserved a share for himself, the after born
son becomes a coparcener with his father.
Jagat Krishna Das v. Ajit Kumar Das  held that institution of partition suit
by a member of a joint status in the family. If in such suit a share is allotted
to the father, son begotten or born after the institution of the partition suit
is not entitled to have partition reopened and to claim redistribution of
shares. But if the father has taken the property towards his share ignoring the
rights of child in the womb, the he or she has the right to claim reopening of
- Adopted Son:
According to Section 12 of the Hindu Adoption and Maintenance Act, 1956 adopted
sons have the same right to partition as that of the natural son. Thus, an
adopted son is entitled to reopen the partition.
Krishnamurthi Ayyar v. Krishnamurthi Ayyar  held that the adoption subsequent
to the alienation and the alienor had full power over the property which he was
alienated. Then the adoption could not affect the property which was already
disposed of by a person who had acted as the full owner of the property.
- Disqualified Coparcener:
Various grounds of disqualification were recognized by the Hindu law as
disqualifications such as congenital and incurable blindness, insanity,
deafness, dumbness, virulent and incurable leprosy, and other incurable diseases
that made sexual intercourse impossible. Persons suffering from any defect which
disqualifies them from inheriting are equally disentitled to a share on
partition. 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.
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
- Absentee Coparcener:
When a coparcener holding a right to share in the property is absent at the time
of partition, and no share is allotted to that coparcener, such coparcener also
has a right to ensure reopening of partition.
- Minor Coparcener:
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 i.e., parent of the
nation. In law it refers to the power of the state to intervene against an
abusive or negligent parent, legal guardian, or informal caretaker and to
act as the parent of a child or individual who needs protection.
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. The suit filed itself
will bring the partition of the joint family property. 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. When at the time of partition, a
coparcener is a minor if his interests are not properly safeguarded, he may
reopen the partition.
Rathinam Chettiar v. S.M. Kuppusamy Chettiar  held that the partition
effected between the members of a Hindu Family can be reopened at instance
of minor, if the partition deed was obtained by fraud, coercion,
misrepresentation or by undue influence.
P.T.V. Chirudevi v. P.T.V. Tarwad Kamavan  held that it is open to the
members to enter into an agreement for the management of the tarwad affairs.
It is open to them also to divide the tarwad properties among themselves.
Such a partition would ordinarily be binding on the minors but if on
attaining majority they are able to show that they have been prejudiced that
the partition could be reopened so far as they are concerned and they would
be awarded the share which should have been set apart for them, but subject
to this the partition is final as between those who were parties to it.
In a case where property is mistakenly or deliberately left out, lost, or seized
at the time of partition, the partition can be reopened. Although it is not
necessary for the partition to be reopened for the distribution of the said
re-surfaced property, meaning, if the said property can be viably distributed
within coparceners without re-opening of partition, there is no necessity of
disturbing the prior process.
Maruti v. Rama  viewed that where the parties to partition under a bonafide
mistake included in the division certain property which did not belong to the
family but was held in mortgage from third person who subsequently brought a
suit for redemption and recovered it from the party to whom it had been allotted
at the partition, the party who had lost his share was entitled to claim a
Balaji Ganoba v. Annapurnabai  held that though a partition once made cannot
be reopened except on the ground of fraud , if the property is wrongly included
and subsequently passes out of the possession of a sharer, he is entitled to
compensation out of the shares of the other parties and the partition may, if
necessary he reopened for readjustment of shares and the parties having divided
the property under a mistake of their rights to it are bound to bear the loss
proportionately and such a claim is based on equitable principles.
Reunion Of Partition:
A situation in which the specific family members regain their position as a
joint family, which was lost during partition. The only method for family
members to re-establish their joint status is through a reunion. Members of the
family who previously held joint ownership of the land are entitled to reunite.
The most essential element for reunion is that the parties intend in the estate
and share a common interest means that just deciding to live under the same roof
without the goal of restoring joint property status does not constitute a
genuine reunion. It is also essential that the communication be vivid with each
individual coparcener providing individual approval to the reunion.
family reunites, the primary result is that the reunited individuals are
restored to their original position as member of a Hindu joint family. 
Under Hindu Law, the term "reunion" refers to a circumstance in which the status
of a formerly united family is restored following its split. Even though Hindu
Undivided Family has been completely divided, it is possible to reunite under
Bhagwan Dayal v. Reoti Devi  -
The Supreme Court held that for a reunion
there should be an express or implied agreement between the parties to a reunion
in an estate. The policy of the law is sound and because the Hindu joint family
is described as an institution. Partition and reunion after partition should not
be restricted because they affect the status and the strength of the interested
parties in such institutions.
Who Can Reunite?
The leading text on the topic of reuniting after partition is that of Brihaspati,
which states that, "He who, being once separated dwells again through affection
with father, brother or paternal uncle, is termed reunited with him."
The Mitakshara and Dayabhaga schools of Hindu Law state that the reunion cannot take
place with any person other than the father, brother, or paternal uncle. On the
other hand, the Mayukha and Mithila Schools of Hindu Law hold that the terms of
"father, brother or paternal uncle" are used in a mere informative and
illustrative sense, and therefore a reunion can be affected with others if they
were a part of the original partition.
M/s. Paramanand L. Bajaj, Bangalore v. The Commissioner of Income Tax, Karnataka
 relied on the text on reunion in Brihaspati Smriti and quoted that he who
being once separated dwells again through affection with his father brought or
paternal uncle is termed reunited. Reunited through affection, they shall
mutually participate in each other's properties.
Association not necessarily
being by co-residence, the association is expressed to be through wealth; so, by
way of removing the distinguishing factor of that, it should be understood that
the re-association of the separated members shall be to the extent of pooling together (all) the wealth etc., as before, and not merely by a co-residence only.
Effects which had been divided and which are again mixed are termed reunited.
He, to whom such appertain, is a re-united parcener.
Any person who was a coparcener originally in the joint status of the family can
be part of the reunion. The reunion takes place by the virtue of the Hindu
Succession Act, 1956.
Conditions For The Parties To Reunite:
A partition is an essential condition for a reunion. No reunion can take place
if there was no partition in the first place.
In Balbux Ladhuram v. Rukhmabai
 it was held that reunion only takes place
between the parties who got divided earlier i.e., the parties to the partition
can only be parties to reunion. A reunion can take place only between the
persons who were parties to the original partition.
The intention to reunite in any case is an essential factor which must not be
overlooked. Reunion shall not take place if there is no intention of the parties
to reunite. Such intention to reunite must be communicated clearly. Where a
person merely live together without having an intention to reunite, it is
necessary to note that such a person shall also not constitute to be a part of
Bhagwan Dayal v. Reoti Devi
 held that 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.
The reunion can take place only if the person has separated with his father,
brother, or paternal uncle but not with anyone else other than them, which is
the case of Mitakshara but in the Mithila school, it can be with anyone,
provided that they are a part of the original partition that had taken place and
thus have the shares, individually under their name.
Bala Bux v. Rukhma
- According to Mitakshara, re-union cannot take place
with any person indifferently but with father, a brother, or a paternal uncle.
According to Dayabhaga also, a reunion is valid only with a father, brother, or
The reunion must be unilateral, i.e., there must be consent of each and every
person who is a coparcener. The consent of the parties or the coparceners, shall
not constitute to be formal agreements but merely consensual agreements which
may be either oral or written or even by their conduct, depicting their
agreements which are not mandatory to be registered.
Commissioner of Income Tax v. Vaijyapuri Chettiar  held that the primary
requisite for the administration of reunion is the consent of the
parties/coparceners with the intention to reunite as a joint Hindu family and
share common interest in the estate. The consent of the coparceners being
unilateral, which means that all the coparceners give their consent to the
reunion although such consent need not be in the form of a formal agreement,
rather it can be an oral agreement or even implied consent may suffice but such
implied consent must be easily provable in the court of law.
The court held the following conditions for valid reunion under Hindu Law:
- There must have existed a previous state where there was already in union.
- The reunion among any persons would only take place if they were related to each other and were part of the previous union before the partition and were members to partition.
- There must have been a partition without which it is impossible to have a reunion.
- The reunion must have been in effect by the parties who were in the partition or by any of the few parties who were a part of the partition.
- A junction of the estate must be in the line, during a reunion. Merely living together as tenants does not comprise reunion.
- Reunion must intend to restore the status quo, which means the existing state of affairs, before the partition.
The reunion must be of effect only by the parties, who had been a part of the
There must be a property involved in the case of the reunion; as reunion does
not merely mean living together as tenants.
Jatti v. Banwari Lal
 held that when one member of the joint family
separates there is no presumption that remaining members remained united.
Bhabgati v. Murlidhar
 held that no writing is necessary for a reunion. It
may take place by verbal arrangement but there must be an intention to reunite.
Mere living and carrying on business together are not conclusive evidence of
A minor cannot reunite, as he is not a competent party to the contracts. The
minor cannot be a party, either on his own or as someone on behalf of him.
Balasubramania Reddy v. Narayana Reddiar
 held that the reunion is the
product of agreement thus minor is incompetent to contract therefore an
agreement cannot agree to reunite. The rules which are special for the
inheritance will not take place in the reunited property but will only be
applicable in case of the separate property which the reunited person holds.
Effect Of Reunion:
The effect of reunion is the reverting of the status of the divided members to
their original status as coparceners in a Joint Hindu Family means that the
reunion leads to the status of the previously undivided members of the original
Hindu Undivided Family, having become separate from the joint family after the
partition, being now reverted again to that of coparceners in a Hindu Joint
The separate property of the reunited coparceners does not pass by
survivorship to the other reunited coparceners but instead passes by succession
to their heirs according to the specific rules.
Pran Krishan v. Mathur Mohan
 held that the effect of reunion is to remit
the reunited members to their former status as members of a joint Hindu family.
Succession Incase Of Reunion:
Through the reunion, only the exclusive rights of the property which one had
acquired of his share; after the partition, such rights get destroyed. He now
acquires the position of the joint-tenant before the partition, sole-tenant
after the partition, and that of a tenant-in-common after reunion.
Where there has been a reunion amongst persons mentioned expressly under the
Brihaspathi text, i.e., the father, the brother, or the paternal uncle, it is
important to note that the inheritance law is applicable to them as in the case
of the death of any one of whom is a part of the reunion.
If the person who now acts in the capacity of the reunited coparcener dies, then
the issue he leaves behind or the successor he leaves behind or is in the womb,
now becomes the owner of his share.
There is no mention of the survivorship in case of reunion.
Reunion: Minor's Perspective:
Minor is a coparcener in the Joint Hindu family and during the time of partition
a minor is given his respective share as the member of the coparcenary and the
guardian effects the partition on behalf of the minor. But the minor cannot be a
party to reunion even through his guardian. Apart from this, the most
distinguishing feature is that the minor holds the right to reopen the partition
even after the partition has been done, this is possible if the partition
effects the rights and interest of the minor negatively.
Thus, the minor is able
to set aside a partition if it is found detrimental to his interest, but a
similar provision is not provided for setting aside reunion. Partition and
Reunion both involve the right and interests of a minor in a Joint Hindu family
but both these concepts have provided differing rights to the minor for the
This can lead to many problems for the minor as a minor, as if a partition is
affected to which the minor is a party too, and if in future the father of the
minor wants to reunite with the family, this won't be possible by law as the
minor isn't competent to enter into an agreement for reunion. Thus, the major
family member will not be able to get his minor child to become a part of the
family again but will only be possible after he attains majority.
This problem exists due to lack of clarity due to absence of judicial decision
on this aspect of Hindu Joint family.
Burden Of Proof:
The burden of proof that the partition took place, lies upon the person who is
pleading for the reunion in the Court of law. It requires compelling evidence to
decide what the proof is and to prove that there is a requirement for the
reunion of the parties. Not only that, but the evidence needs to be cogent in
order to prove that there was a partition and to prove that there was a meeting
of the minds in case of the reunification of the property into a Joint Hindu
Difference Between Reopening And Reunion Of Partition:
Re-opening of partition is the step that is taken with the intention to reunite,
although re-opening or partition may not lead to reunion as the joint Hindu
Re-opening of partition is in a way, a corrective measure in the case where a
coparcener was denied his rights during partition or for the corrections in the
division of shares in the case where the property was divided in a dishonest
Although re-opening of partition may also be done in the case where the
coparceners simply intend to reverse the partition, and desire to co-exist as a
Joint Hindu Family, as previously. On the other hand, the object of reunion is
not the correction of any mistakes or fraud during the partition, rather the
sole purpose of reunion is the reversal and reverting of the partition and the
restoration of the status of the Family as a Joint Hindu Family.
It is easy to gather that while re-opening has a broader use and purpose;
reunion after partition is unilateral in its purpose.
The partition is generally irrevocable in nature. 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 after the
partition. The rationale behind is to prevent gross injustice to the member of
the family. Reunion is just a tool to bring back the family into a whole as a
Joint Hindu Family or the Hindu Undivided Family after the partition had taken
The status quo is restored after the reunion and before the partition
making it a tool for the unification of the divided family. Therefore, though it
has been a rare occurrence. Reunion helps in bringing back the family as one
despite the families having individual identities. Therefore, it can be
conclusively stated that reunion is merely a tool the purpose of which is to
bring back the family into a whole as a Joint Hindu Family or The Hindu
Undivided Family after the Partition has already taken place.
- Raghvamma v. Chenchemma, 1964 AIR 136, 1964 SCR (2) 933 (India)
- Ambuj Deshwal, Reopening and Reunion of partition under Hindu Law, Law Bhoomi
- Moro Vishvanath v. Ganesh Vithal, (1873) 10 BOM 444 (India)
- Jagat Krishna Das v. Ajit Kumar Das, AIR 1964 ORISSA 75 (India)
- Krishnamurthi Ayyar v. Krishnamurthi Ayyar, SC 29 BOM 960 (India)
- Rathinam Chettiar v. S.M. Kuppusamy Chettiar, 1976 SCC (1) 214 (India)
- P.T.V. Chirudevi v. P.T.V. Tarwad Kamavan, AIR 1917 MAD 845 (2) (India)
- Maruti v. Rama, (1897) ILR 21 BOM 333 (India)
- Balaji Ganoba v. Annapurnabai, AIR 1952 NAG 2 (India)
- Partition and reunion of partition under Hindu Law, Lexpeeps
- Bhagwan Dayal v. Reoti Devi, AIR 1962 SC 287 (India)
- M/s. Paramanand L. Bajaj, Bangalore v. The Commissioner of Income Tax, Karnataka 135 ITR 673 (1982) (India)
- Balbux Ladhuram v. Rukhmabai, (1903) LR 30 IA 130 (India)
- Id. 11
- Bala Bux v. Rukhma, (1903) 30 Ind App 130 ILR 30 Cal 725 (PC) (India)
- Commissioner of Income Tax v. Vaijyapuri Chettiar, Tax Cases Nos. 725 to 728 of 1984 (India)
- Jatti v. Banwari Lal, (1923) LR 50 IA 192 (India)
- Bhabgati v. Murlidhar, 1943 A.L.J. 328 P.C. (India)
- Balasubramania Reddy v. Narayana Reddiar, AIR 1965 MAD 409 (India)
- Pran Krishan v. Mathur Mohan, (1865) 10 M.I.A. 403 (India)
Award Winning Article Is Written By: Ms.Geedharsini V
Authentication No: OT330218346044-29-1023