REOPENING OF PARTITION AND REUNION OF PARTITION

This article is written by Mrigha Mahajan of 3^rd Semester of  The Law School, University of Jammu, an intern under Legal Vidhiya

ABSTRACT

Hindus consider the joint family to be an essential part of their culture and a special, age-old institution. The common ancestor, all of his male lineal descendants, widows, and unmarried daughters of the common ancestor and the lineal male descendants, together with their wives or widows, make up a Hindu joint family. The idea of a son’s birthright to the joint family property is the basis of the Mitakshara Concept of the coparcenary. Sons receive an interest in the joint family property by birth, as do sons’ sons and sons’ sons. Coparceners are those who are members of the coparcenary group and have a vested stake by birth. Subject to certain limitations, every coparcener in the coparcenary has the right to request partition. This study article will first provide a brief definition of partition, explain who can be impacted by a partition and how, ask for a portion of the joint family property, and then address the conditions under which a partition that has already been affected can be reopened. The text then moves on to a brief discussion of the role that women play in Hindu coparcenary families before finishing with these lines. The reopening of the partition and the categories of individuals who can demand its reopening are covered in the second section. The reunion of partition and its consequences are explained in the paper’s final section using pertinent case laws.

KEYWORDS: partition, coparcener, reopening, reunion, Hindu undivided family, joint family, minor, Mitakshara law.

 INTRODUCTION

The art of partitioning involves a coparcener serving his relationship with his joint family, losing his coparcener status, and severing his ties to the joint family to become an independent person. Partition refers to the numerical partition of property, which ends the Hindu Joint family. After partition, the joint family becomes a nuclear family and stops being joint. In a coparcenary, the property is held by the coparceners as a single common unit; the fixing of each coparcener’s portion is known as partition. The Mitakshara Law defines it as the distribution of the various interests into portions of the aggregate, with the aim of adjusting them with respect to the whole. Partition, then, denotes the crystallization of a coparcenary’s varying interest into a particular share in the Hindu Joint Family. There are several methods to divide a property: by will, notice, arbitration, interest expression of intention, agreement, or lawsuit. As per the Shastric law, Manu declares that “Once a gift is made, once a partition is made, and once a damsel is given in marriage, it is irrevocable and irretraceable.’’ There are, nevertheless, some exceptions to the rule that “shares are divided only once known as reopening of partition.” “He who, being once separated, dwells again through affection with father, brother, or paternal uncle, is termed reunited with him,” according to a leading text about Brihaspati. Through this process, parties who have previously been separated can reunite to form a Joint Hindu Family.

WHAT IS A PARTITION ?

Partition denotes the numerical division of assets and the dissolution of a Hindu joint family. After partition, the joint family becomes a nuclear family and stops being joint. In a coparcenary, the property is held by the coparceners as a single common unit; the fixing of each coparcener’s share is known as partition. The Mitakshara Law defines it as the distribution of the various interests into specific portions of the aggregate, with the aim of adjusting them with respect to the whole. Partition, then, denotes the crystallization of a coparcenary’s varying interest into a particular share in the Hindu Joint Family.

1. De jure Partition

A de jure partition results in the loss of a status or an interest. This occurs when the coparcener community of interest is breached, either by unanimous consent or at the behest of one of the coparceners. The shares become distinctly defined and cease to fluctuate in such a partition.

2. De facto Partition

This divide is made up of bonds and metes. When the unity of possession is disrupted, this occurs. The respective shares of the coparceners become their exclusive shares only after the de facto partition. Partition, according to the Mitakshara school, is merely the severing of a status or interest. It does not imply that a partition becomes effective only after assets are divided into distinct shares. To effect partition, a coparcener must have a clear and unambiguous intention to break away from the family. As a result, the severance of the de jure partition status marks the end of a partition.

WHO CAN DEMAND PARTITION ?

Each coparcenary who is a major and in good mental health has the right to request partition. The Karta is obligated to comply with the coparcener’s demand for partition, regardless of its reasonableness, if it is clearly manifested. In addition to having the right to call for partition, the following individuals also have the right to a share of the division: father, son, grandson, great-grandson, son conceived during the time of partition but born after, adopted son, minor coparcener, absent coparcener, alienee, and daughters. A father is entitled to request division more than anyone else. When a father exercises his right to demand division, the sons’ agreement is irrelevant. However, the father must behave honorably when using such authority. Partition may be reinstated if the division he created is unfair, dishonest, or prejudiced. As guardian, the father keeps authority over the minor’s portion. After the divorce, the minor’s portion would, nevertheless, become his personal property, and neither the father nor anyone else would be allowed to transfer it without a judge’s approval. Until he reaches majority, the minor coparcener cannot escape the division caused by his father. But once he reaches majority, he can reject it. As a legitimate child of the parents, the son born out of void or voidable marriages is legally entitled to inherit their separate property; however, he is not eligible to inherit from any other parent’s relation. A statutory legitimate child would not be a coparcener with the father and would not receive a share at the time of the partition, but they would be entitled to inherit the father’s property. Put another way, he is not allowed to request partition while the putative father is still alive; rather, he can only request a share of the partition following the father’s passing.

REOPENING OF PARTITION

Manu asserts that “once a partition is made, once a damsel is given in marriage, and once a gift is made, are irrevocable and irretraceable” in accordance with Shastric law. In most cases, a division is irreversible. The reasoning behind this is that even though former coparceners retain their shares as their sole and distinct property, they are still able to transact with them in order to establish legitimate titles that benefit even unaffiliated parties. The dictum that “shares are divided only once” is subject to some exceptions, nevertheless. In certain cases, it might be necessary to redistribute the properties to avoid causing the family members severe injustice. A claim that the division was unfair, however, cannot be accepted when the evidence indicates that it was made following appropriate and appropriate considerations. Consequently, the partition must be completely reopened in cases where property readjustment is not feasible.

Reopening a partition is permissible in the following situations:

1. Fraud

Distribution of properties through fraud, unless the victim of the fraud agrees to the arrangement knowing all relevant details. If any coparcener has deceived the other coparceners to gain an unfair advantage in the property division, the partition may be reopened. In order to obtain an unfair advantage over the other parties during the partition process, a coparcener may choose to conceal the Joint Family Property. In the event that fraud is discovered, the partition may be reopened. Nevertheless, if fraud was not initially pleaded in the plaint, the plea that the partition was fraudulent cannot be changed after the fact. Moreover, fraud cannot be added as a ground at a later stage of the trial.

2. Son in womb

The right to divide belongs to sons, grandsons, and great-grandsons. Hindu law regards a son who was conceived during the partition but was born post-partition as an individual who is in a womb at the same time as someone else. If the pregnancy is known, the partition should be put off until the child is born; however, if the coparceners object, the share that corresponds to their share should be set aside. However, if the posthumous child’s share is not reserved, he may, by any representation, demand that the partition be reopened after his birth. Such a son’s entitlement is contingent upon whether his father withheld a portion from his sons during the division process.

The son born after the divorce has the right to have the partition reopened if the father hasn’t claimed a share for himself. However, the after-born son and his father become coparceners when the father has taken or reserved a share for himself. A son born after the partition has the right to request that the partition be reopened; however, in the event of the father’s passing, he will also be entitled to inherit the father’s separate property in addition to the share that was given to him at the time of partition.

3. Adopted Son

Adopted sons have the same right to partition as natural sons, as stated in Section 12 of the Hindu Adoption and Maintenance Act, 1956. Shares of adopted sons and natural sons will be equal even if a son is born to a father after adoption. So, the right to reopen the partition belongs to an adopted son.

4. Disqualified Coparcener

Individuals with any condition that prevents them from inheriting are also not entitled to a share upon partition. The Hindu law recognized a number of grounds for disqualification, including virulent and incurable leprosy, congenital and incurable blindness, insanity, deafness, dumbness, and other incurable diseases that prevented sexual relations. The Hindu Inheritance (Removal of Disabilities) Act, 1928 eliminated all of these grounds from the Mitakshara law, with the exception of congenital lunacy or insanity. Not only that, but a family member who does not have a congenital disqualification will not lose his interest if he later develops schizophrenia. After recovering from his disqualification, the disqualified coparcener—who neither has the right to call for partition nor is entitled to a share—may request that the partition be reopened.

5. Absentee Coparcener

If the partition was completed while he was away, any coparcener with a share in the coparcenary who was not present at the time of the partition has the right to request that it be reopened.

6. Minor Coparcener

The minor coparcener’s rights in partition are equal to those of the major coparcener. Since a minor is a person with an immature mind, the court must act as parens patriae to defend his rights. The guardian of the minor or the guardian’s next friend may file a lawsuit for partition on the minor’s behalf if the Karta has harmed the minor’s interests by misusing the joint family property. The division of the joint family property will be brought about by the lawsuit that is filed. Whether or not the division is beneficial to the minor is a matter for the court to determine; if it is not, the court must demand an injunction to prevent the division.

7. Property added after partition

The reopening of partition may also be impacted by the discovery of previously lost or seized properties, or by the inadvertent omission of certain properties. The earlier partition shouldn’t be altered if a distribution of the extra properties can be made successfully without reopening the partition.

LANDMARK JUDGMENTS

1. Jagat Krishna Das and Anr. vs Ajit Kumar Das And Ors. , AIR 1964 Ori 75

It maintained that a family member with a joint status could file a partition suit. If a father receives a share in such a suit, his son who is born or begotten after the suit’s institution is not entitled to have the partition reopened or to seek a redistribution of shares. However, the father has the right to demand a reopening of the partition if he or she has taken the property toward his share while disregarding the rights of the unborn child.

2. Rathinam Chettiar v. S M Kuppuswamy Chettiar ,1976 SCC (1) 214

It decided that if a Hindu family’s partition deed was obtained through fraud, coercion, misrepresentation, or undue influence, it may be reopened in the event of a minor.

3. P.T.V Cherudevi v. P.T.V Tarwad Kamavan , AIR 1917 MAD 845(2)

It decided that the members may choose to form a management agreement for the tarwad’s affairs. They are free to distribute the tarwad attributes among themselves as well. Normally, a partition of this kind would bind the minors, but if they can demonstrate that they were harmed, the partition can be reopened in their case, and they will receive the portion that was intended for them. Subject to this, however, the partition is final as far as the parties involved are concerned.

REUNION OF PARTITION

A circumstance where the members of that particular family reclaim the joint family status, they previously held but lost during the division. A reunion is the only way for family members to re- establish their joint status. Reunification is allowed for family members who shared previous land ownership. Simply choosing to live together without the intention of regaining joint property status does not qualify as a true reunion. The most important component of a reunion is that the parties intend in the estate and have a common interest. Additionally, it is imperative that there be clear communication, with each coparcener expressing their own approval for the reunion.

The main outcome of a family reunion is the restoration of each member to their previous status as a joint family member in Hinduism. In Hindu law, a “reunion” is a situation in which a family that was once united regains its status after splitting. Under Hindu law, a Hindu Undivided Family can still come together even though it has been totally divided.

WHO CAN REUNITE ?

Brihaspati is the primary source on the subject of reunions following division. It says, “He who, after being separated, dwells again through affection with father, brother, or paternal uncle, is termed reunited with him.”

According to the Hindu legal schools of Mitakshara and Dayabhaga, the reunion can only happen with the father, brother, or paternal uncle. However, the Mayukha and Mithila Schools of Hindu Law maintain that the terms “father, brother, or paternal uncle” are merely descriptive and illustrative, and that if someone was involved in the original partition, they can be reunited with you.

To remove the defining characteristic 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. Association is expressed to be through wealth and is not necessarily by co-residence. Reunited effects are those that have been divided and then mixed again. He who perceives such things is a reunited parcener. The reunion is open to anyone who was initially a coparcener in the family’s joint status. The Hindu Succession Act of 1956 allows for the reunion to occur.

CONDITIONS REQUIRED FOR REUNION

Following are the conditions held by the court as valid for reunion under Hindu law:

1. A prior state that was a part of the union must have existed.
2. People would only be reunited if they shared a common ancestor, were a part of the pre-partition union, and were present during the partition.
3. Reunification is impossible without a partition, which must have occurred.
4. The parties involved in the partition or any of the few parties involved in the partition had to be in effect for the reunion to take place.
5. During a reunion, an estate junction needs to be in the line. Reunification does not mean cohabiting as tenants.
6. The goal of reunion must be to bring things back to how they were prior to the division, or the status quo.

EFFECT OF REUNION

Reunification has the effect of reverting the divided members’ status to that of coparceners in a Hindu Joint Family, which means that the members of the original Hindu Undivided Family, who were previously undivided before the partition and had become separate from the joint family, are now once again coparceners in a Hindu Joint Family. The distinct property of the reunited coparceners is passed down to their heirs in accordance with the rules, not to the other reunited coparceners via survivorship.

SUCCESSION IN CASE OF REUNION :

Only the exclusive rights to the property that each member had acquired from his share were preserved through the reunion; these rights are destroyed following the partition. He now becomes a tenant-in-common following reunion, a sole tenant following partition, and a joint tenant prior to the partition. It is significant to note that the inheritance law applies to reunions involving individuals specifically mentioned in the Brihaspathi text, such as the father, brother, or paternal uncle, just as it would in the event that any of the reunion participants passed away. In the event that the individual acting in the role of the reunited coparcener passes away, his share will now belong to the issue he leaves behind, his successor, or the unborn child. The survivorship in the event of a reunion is not mentioned.

MINOR’S PERSPECTIVE

In a joint Hindu family, children are coparceners. When the family is divided, each child receives his or her share as a coparcenary, and the guardian handles the division on the child’s behalf. Even through his guardian, the minor is not permitted to participate in the reunion. Aside from this, the most unique aspect is that the minor retains the right to reopen the partition even after it has been completed, provided the partition adversely affects the minor’s rights and interests. Therefore, if a partition is determined to be against the minor’s interests, he can set it aside; however, a reunion cannot be set aside under the same circumstances. The rights and interests of a minor in a joint Hindu family are involved in both partition and reunion, but the minor has different rights under each of these concepts. This can cause the minor a lot of issues as a minor, such as if the minor is a party to a partition that is affected, and if the minor’s father wants to reunite with the family later on, the minor isn’t competent to enter into an agreement for reunion, so this won’t be allowed by law. As a result, the major family member will only be able to bring his minor child back into the fold after he reaches the age of majority. This issue stems from a lack of clarity brought about by the lack of judicial ruling on this particular aspect of Hindu joint families.

LANDMARK JUDGMENTS

1. Balasubramania Reddy v. Narayana Reddiar , AIR 1957 Mad 97

It maintained that since the reunion is the result of an agreement and a minor is incapable of entering into a contract, the agreement cannot call for a reunion. The rules specific to inheritance will only apply to separate property held by the reunited individual and will not apply to the reunited property itself.

2. Bhagwan Dayal v. Reoti Devi, 1962 AIR 287, 1962 SCR (3) 440

The Supreme Court ruled that there must be a written or implicit agreement between the parties to a reunion in an estate before one can take place. Because the Hindu joint family is regarded as an institution, the legal policy is sound. Since they have an impact on the standing and power of the interested parties in these institutions, partition and reunion after partition shouldn’t be restricted.

• Balbux Ladhuram v. Rukmabai , (1930) LR 30 1A 130

It was decided that reunions could only occur between the parties who were previously split apart, meaning that participants to a partition could not also be parties to a reunion. Only those who were involved in the initial division may get together again.

DIFFERENCE BETWEEN REOPENING AND REUNION OF PARTITION

Reopening the division is a step that is done with the goal of coming together, even though it might not result in the reunion of the joint Hindu family.

In the event that a coparcener was denied his rights at partition, or if the property was split dishonestly, reopening the partition is essentially a corrective action for the share division.

However, the partition may also be reopened in the event that the coparceners merely wish to undo the division and continue to live as a single Hindu family. However, the goal of the reunion is to reverse and overturn the division and restore the family’s status as a Joint Hindu Family, not to repair any errors or fraud that occurred during the separation.

Reunification after partition is unilateral in its goal, whereas reopening has a more expansive usage and purpose.

CONCLUSION

The nature of the partition is typically irreversible. But it’s best to reopen the already-affected partition for the sake of equity. The additional distribution of property that was added after the partition is even advised by Manu’s laws. Preventing egregious injustice to the family member is the justification. Reunification serves only as a means of reuniting the family as a Joint Hindu Family or the Hindu Undivided Family following their division. It serves as a tool for the unification of the divided family because the status quo is restored both before and after the partition. Consequently, even though it hasn’t happened often. Despite the families’ distinct identities, reunions aid in reuniting the family as a unit. Consequently, it can be said with certainty that, after the partition has occurred, the goal of the reunion is only to reunite the family as a Joint Hindu Family or the Hindu Undivided Family.

REFERENCES

1. Legalserviceindia.com, https://www.legalserviceindia.com/legal/article-13443-an-insight-on-reopening-and-reunion-of-partition.html#:~:text=A%20reunion%20can%20take%20place,reunite%20must%20be%20communicated%20clearly , (30 October 2023)
2. Simplekanoon.com,https://www.simplekanoon.com/family-law/partition-reunion-of-property-hsa-102/ , ( 31 October 2023)
3. Scribd.com,https://www.scribd.com/document/250172003/Reopening-and-Reunion-of-Partition ( 31 October 2023)

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