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An Insight On Reopening And Reunion Of Partition

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 on partition.

In Raghvamma v. Chenchemma [1], 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:
Mitakshara Dayabhaga
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 alive. 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 coparcenary. Possession is the essence of unity and not ownership.

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. [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 transactions relating to them, to create valid titles in favor of even third parties. Moro Vishvanath v. Ganesh Vithal [3] an 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:

  1. Fraud:
    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.
  2. 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 [4] 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 partition.
  3. 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 [5] 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.
  4. 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 the partition.
  5. 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.
  6. 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 [6] 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 [7] 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.
  7. Mistake:
    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 [8] 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 repartition.

    Balaji Ganoba v. Annapurnabai [9] 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.

When a family reunites, the primary result is that the reunited individuals are restored to their original position as member of a Hindu joint family. [10] 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 Hindu Law.

Bhagwan Dayal v. Reoti Devi [11] - 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 [12] 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 [13] 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 the reunion.

Bhagwan Dayal v. Reoti Devi [14] 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 [15]- 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 paternal uncle.

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 [16] 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:
  1. There must have existed a previous state where there was already in union.
  2. 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.
  3. There must have been a partition without which it is impossible to have a reunion.
  4. 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.
  5. A junction of the estate must be in the line, during a reunion. Merely living together as tenants does not comprise reunion.
  6. 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 partition.
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 [17] held that when one member of the joint family separates there is no presumption that remaining members remained united.

Bhabgati v. Murlidhar [18] 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 reunion.

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 [19] 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 Family.

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 [20] 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 same.

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 Family.

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 Family.

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 manner.

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 place.

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.

  1. Raghvamma v. Chenchemma, 1964 AIR 136, 1964 SCR (2) 933 (India)
  2. Ambuj Deshwal, Reopening and Reunion of partition under Hindu Law, Law Bhoomi
  3. Moro Vishvanath v. Ganesh Vithal, (1873) 10 BOM 444 (India)
  4. Jagat Krishna Das v. Ajit Kumar Das, AIR 1964 ORISSA 75 (India)
  5. Krishnamurthi Ayyar v. Krishnamurthi Ayyar, SC 29 BOM 960 (India)
  6. Rathinam Chettiar v. S.M. Kuppusamy Chettiar, 1976 SCC (1) 214 (India)
  7. P.T.V. Chirudevi v. P.T.V. Tarwad Kamavan, AIR 1917 MAD 845 (2) (India)
  8. Maruti v. Rama, (1897) ILR 21 BOM 333 (India)
  9. Balaji Ganoba v. Annapurnabai, AIR 1952 NAG 2 (India)
  10. Partition and reunion of partition under Hindu Law, Lexpeeps
  11. Bhagwan Dayal v. Reoti Devi, AIR 1962 SC 287 (India)
  12. M/s. Paramanand L. Bajaj, Bangalore v. The Commissioner of Income Tax, Karnataka 135 ITR 673 (1982) (India)
  13. Balbux Ladhuram v. Rukhmabai, (1903) LR 30 IA 130 (India)
  14. Id. 11
  15. Bala Bux v. Rukhma, (1903) 30 Ind App 130 ILR 30 Cal 725 (PC) (India)
  16. Commissioner of Income Tax v. Vaijyapuri Chettiar, Tax Cases Nos. 725 to 728 of 1984 (India)
  17. Jatti v. Banwari Lal, (1923) LR 50 IA 192 (India)
  18. Bhabgati v. Murlidhar, 1943 A.L.J. 328 P.C. (India)
  19. Balasubramania Reddy v. Narayana Reddiar, AIR 1965 MAD 409 (India)
  20. Pran Krishan v. Mathur Mohan, (1865) 10 M.I.A. 403 (India)

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