REOPENING OF PARTITION AND REUNION

This article is written by Anupriya Mukherjee of Adamas University, an intern under Legal Vidhiya

ABSTRACT:

A Hindu joint family is terminated by the process of partition, which entails dividing up the property among coparceners numerically. After the separation, the blended family is no longer blended and becomes a nuclear family.[1] Partition refers to determining the shares that each coparcener will possess in the property, which is held as one single unit by coparceners. In order for each person to receive their part and become the owner of the portion that was given to them, jointly owned property is divided into smaller portions. With family expansions, the shares each co-owner acquires may alter. After the Hindu Succession Act was amended in 2005, women were also given the title of coparcener and the right to have a separate share in a property for themselves. Previously, only male members were considered to be coparceners and only they had the right to partition.[2]

• De jure Partition: De jure partition results in the termination of a status or an interest. This occurs when the community of interest is broken, either on the initiative of one of the coparceners or with their consent. In such a division, the shares are clearly defined and cease to fluctuate.

• De facto Partition: This division is made up of metes and bonds. When the possessional unity is disrupted, something occurs. The relative shares of the coparceners only become their exclusive shares following the de facto split. Partition merely refers to the severance of status or interest in the Mitakshara school. This does not imply that a partition only takes effect once the property has been divided into distinct shares. All that is required to cause partition is a coparcener’s clear-cut determination to cut himself off from the family. A partition is therefore considered to be finished when the de jure partition status is severed.

There are two types of Partition:

• Total Partition: Total partition is the process by which the entire property of a Hindu Undivided Family is divided equally among all of the cohabitants, ending the family’s status as an unbroken unit.

• Partial Partition: When certain family members separate from the rest of the family while still remaining as family members, this is known as a partial partition. In such a partition, the remaining coparceners continue to hold joint title to the remaining property.

BACKGROUND:

So, who can affect Partition? The right to request partition belongs to any coparcener inside the coparcenary, provided that he is a major and of sound mind. Whether it is reasonable or not, the coparcener’s demand for partition must be complied with, and the Karta is obligated to do so if it is manifested clearly.

Partition, which results in the severance of the joint status or interest, requires the fulfilment of two conditions:

• Developing a separation purpose.

• The statement of intent to split up. In addition to communicating a desire to sever, the statement also comprises the expression of an intention. Regardless of whether it is verbal or written, the proclamation of intention must be explicit and unmistakable in order to break the status quo. The coparcener must behave intentionally and knowingly in order to clearly communicate their goal. In addition to having the right to request a partition, fathers, sons, grandchildren, great-grandchildren, sons who were conceived at the time of the partition but were born after it, adopted sons, minor coparceners, absent coparceners, alienees, and daughters also have the right to receive a portion of the partition at the same time.

The right to request a partition, however, is higher to that of a father. He has the power to impose a partition on his sons individually in addition to dividing them from him. The assent of the sons is irrelevant when the father exercises his right to demand a division. But the father must act honourably while using this authority. It is possible to reopen partition if the division he created is unfair, dishonest, or biased. The parent keeps his authority as a guardian over the portion going to the minor. Even the father would not be allowed to sell the minor’s portion of the estate without the court’s approval because it would be considered his personal property after the division. Given that section 8 of the Hindu Succession Act does not distinguish between a separated son and an undivided son when it comes to succession to Mitakshara Hindu’s separate property, it is important to note that other sons of the father who have broken off their relationship may also be eligible to inherit the father’s separate property alongside the undivided sons who were born after However, a son born after a coparcener has given up his share of the partition is not eligible to claim the status of a coparcener because his father is no longer considered to be a member of the coparcenary.

Reopening a partition[3] is possible on grounds of:

• Fraud: property distribution scam, unless the victim consents after being fully informed of all relevant information. If any coparcener got an undue advantage in the division of the property by defrauding the other coparceners, the partition may be reopened. To acquire an unfair and unfair advantage over the others, a coparcener may conceal the Joint Family Property at the time of partition; the partition can therefore be reopened upon the discovery of fraud. However, fraud cannot be added as a defence at a later stage of the case, and if fraud was not initially pleaded in the plaint, the defence cannot be changed to claim that the partition was fraudulent after the fact.

• If a son is created while pregnant or is born after a divorce: Sons, grandsons, and great-grandsons have the right to divide. Hindu law treats a child in a womb as an existing human being when referring to the son who was conceived at the time of partition but born after it. If the pregnancy is known, the division should be put off until the child is born; however, if the coparceners object to the delay, the portion that corresponds to their share should be set aside. However, if there is not a share set aside for the posthumous child, he or she can make a representation to request that the partition be reopened after the child’s birth. If his father took a share from his sons when they were divided, that would determine the son’s right. The son born later has a right to have the division reopened if the father did not take a share for himself. The son born after the partition is entitled to have the partition reopened, but in lieu of that, he is entitled, upon the death of the father, to inherit both the share allotted to the father on the partition as well as the separate property of the father. This is because the son born after the partition has taken or reserved a share for himself becomes a coparcener with his father.

• Adopted child: The Hindu Adoption and Maintenance Act, 1956, Section 12, states that adopted sons have the same right to divide as natural sons. Even if a son is born to a father after his adoption, the shares of adopted boys and natural sons will still be equal. The division can therefore be reopened by an adoptive son.

• Coparcener disqualified: Anyone with a defect that prevents them from inheriting is also ineligible to receive a share of the estate upon its dissolution. Hindu law identified a number of reasons for disqualification, including virulent and incurable leprosy, insanity, deafness, dumbness, and other incurable conditions that prohibited sexual contact.

Due to the Hindu Inheritance (Removal of Disabilities) Act of 1928, all of these grounds—aside from congenital lunacy or insanity—have since been abolished as a component of Mitakshara law.

Additionally, if a family member later develops a mental illness despite not having a congenital disqualification, he will not lose his interest.

When a disqualified coparcener has recovered from his disqualification, he may request that the partition be reopened even though he is neither entitled to a share nor a right to call for partition.

• Missing Coparcener: If a partition has occurred while a coparcener was absent and that coparcener has a share in the coparcenary, that coparcener has the right to request that the partition be reopened.

• Minor Coparcener: In partition, the minor coparcener’s right is equal to the main coparcener’s. Since a minor has an immature intellect, the court has a responsibility to uphold his rights by serving as parens patriae. The minor’s guardian or the next friend of the guardian may submit the claim for partition on the minor’s behalf if the Karta prejudices the minor’s interests by misusing the Joint Family Property. The division of the joint family property will result from the lawsuit itself. The court must determine whether or not the division will benefit the minor; if it won’t, the court must request an injunction and refuse to let the division.

• Added property following partition: The reopening of a partition may also be impacted by the discovery of previously lost or seized property or by the intentional or unintentional leaving out of particular goods. The earlier division should not be altered if a distribution of the extra attributes can be accomplished successfully without reopening it.

There is another group of joint family members who do not have the right to divide the property but do have the right to share it. The son of void or voidable marriages is a legal child of the couple and legally entitled to their separate property, but he is not eligible to inherit from any other parent’s relative. A statutory legitimate kid would be entitled to the father’s property but would not be his co-owner and would not receive a share when the property was divided. Therefore, he is not allowed to request a partition during the putative father’s lifetime; instead, he is only allowed to request a partition share after the father has passed away. There are some females who are entitled to partake in a partition even if no female has the right to one. These include the father’s wife, the mother, the paternal grandmother, and in some cases the widow of the coparcener[4].

For a coparcener, a change in status suffices, and even if he passes away later, his legal representatives would still be able to claim his share. But when the division is made by metes and bounds rather than just by the severance of the status, women only have the right to claim it. She is authorised to reopen the partition and assert her share, though she has a right to one if it happens and she is not allocated a share.

The sole drawback to this arrangement is that if the female passes away before the division takes effect, her half does not pass to her legal representatives instead remaining in the joint family property’s common pool.

As of the start of the Hindu Succession Act (Amendment) Act 2005, the daughter of the coparcener is by birth the coparcener in her own right, has the same rights to the coparcenary property, and will be held to the same obligations as if she were a son.

In Pachi Krishnamma v. Kumaram, the daughter claimed during partition that her share was equal to the son’s, but she was unable to substantiate this claim due to local conventions that stated girls should receive the same share as sons. However, following the amendment, has the same rights as a son.

The Hon’ble Supreme Court ruled in the case of Danamma Suman Surpur and Anr v. Amar and Ors that daughters had equal rights in the inherited property even though they were born before the Hindu Succession Act was passed. Reunion only occurs between parties who were previously divided, i.e., the parties to the partition can only be parties to the reunion, according to the ruling in Balbux Ladhuram v. Rukhmabai. In light of this, the court ruled that only the parties to the initial partition were eligible for a reunion. The court further noted that the minor-plaintiff could not have made or authorised the agreement to reunite.

In Ratnam Chettiar & Ors vs S. M. Kuppuswami Chettiar & Ors on 18 September, 1975[5], the apex court held that it is impossible to claim that there was unfairness, fraud, or irregularity in the allocation of the properties between the brothers with regard to the partition of the immovable property ties. We do not believe that the plaintiffs’ father (5th defendant) acted against the interests of his sons or that the first defendant took advantage of his status as the family’s eldest member by receiving the best property out of those that were available for division. Instead, we believe that the immovable property division plan is fair.

Sukhrani (Dead) By L.Rs. & Ors vs Hari Shanker & Others on 12 April, 1979[6] a request for arbitration was made while the case was pending, and the arbitrators issued a ruling in which it was mandated that Rajaram’s two minor sons each receive Rs. 12,000 to equalise the shares of the two branches. The contesting defendants submitted a request to set aside the award on the grounds that the Arbitrators had made their decision without conducting any further inquiry or providing the parties with an opportunity to present evidence. Additionally, it was asserted that the Arbitrators’ earlier partition had not been found to be fraudulent or the consequence of any deception and that, as a result of their decision, they lacked the authority to reopen the partition. On the grounds that the Arbitrators had issued the decision without conducting any inquiry or providing the parties with a chance to present evidence, the Trial Court overturned the verdict. The High Court appeal was the plaintiff’s preference. The High Court rejected the appeal on January 10, 1962. The High Court maintained the Trial Court’s conclusion that the award was invalid since no inquiry was conducted and the parties were not given the chance to present evidence. Additionally, the High Court determined that the award’s face contained a legal error because the arbitrators had reopened the division despite concluding that there had been no fraud or deceit and that the uneven shares had been accepted voluntarily. This, it was noted, was illegal because the plaintiff and his other younger sibling were properly represented by their father Rajaram. In the proceeding to set aside the award, the High Court found that the partition could not be reopened because there was no fraud or misrepresentation and because unequal shares had been voluntarily accepted. The learned counsel for the appellants argued that this finding was binding on the parties at all subsequent stages of the suit. In any case, he argued that the plaintiff and his brothers were legally represented in the partition by their father Rajaram, and that under those circumstances, absent fraud or misrepresentation, the plaintiff could not reopen the partition on the basis of an equal distribution of shares.

Simply put, the topic is no longer res integra and the learned author has not cited any conclusively decided cases to support his claims. The same issue arose in Ratnam Chettiar v. S. M. Kuppuswami Chettiar & Ors. (supra), and it was decided that even though there was no evidence of fraud, misrepresentation, or undue influence, a partition could be reopened at the request of a minor coparcener, even though the branch was represented by the minor’s father at the partition, if the partition was unfair or detrimental to the minor’s interests.

Additionally, it was decided that if one separate and separable aspect of the partition scheme was unfair, the entire division did not need to be reopened. In this situation, the partition’s reopening could be appropriately limited. This appeal is denied with costs in view of the guidelines established in Ratnam Chettiar & Ors. v. S. M. Kuppuswami Chettiar & Ors. (supra).

CONCLUSION:

A Hindu joint family is, until proven otherwise, assumed to be one unit. After the general partition, the only option to restore the family’s original joint status is by a reunion. If someone splits off from the rest of the family and takes his hare, there is no assumption that the family is still together. Only the members who took part in the initial division are eligible for reunion. Reunions are only permitted under Mitakshara law when they involve brothers or father and son.[7]

The partition is usually of an irrevocable character. However, it is advised to reopen the affected partition in order to preserve equity. Even Manu’s laws recommend the further distribution of property that was acquired after the split. To avoid committing a serious wrong to the family member is the justification[8].

Hindu law divides property into strata that are primarily governed by the Mitakshara and Dayabhaga schools of thought. It signifies the end of the status of a joint family and the establishment of distinct, personal rights for each co-parent for their particular share. It results in the cessation of all varying rights and establishes stability with regard to property rights among co-owners. Hindu law offers a variety of unique ways to cause a division, including an agreement, a will, notification, arbitration, and more. These and other means are adequate to cause a partition. Even so, the law offers numerous options and addresses practically all issues when taking the partition legislation into account.

1. According to Mitakshara, a property right is generated at birth and passes to a survivor. The partition is complete once the shares are established; a metes-and-bounds division of the property is not required. Partition, then, denotes the distribution of particular property parcels among co-sharers. The key is shared ownership. Rights and shares change as co-parceners are born and die. Prior to the 2005 amendment, women were not allowed to have a share in the property that was divided, but now they are.

2. According to Dayabhaga, each coparcener owns a specified share of the joint property, of which he is the sole owner. Metes and bounds are used to segment the property. The tenants-in-common who are the undivided co-sharers retain ownership of the joint property in clearly defined shares. The essence is the possession’s unity. Each gender is entitled to a distinct part of the property. Almost every scenario in which a partition might be reopened is attempted to be covered in the research paper. The essay is informational in nature and does not include any subjective opinions. For the purpose of verifying their legitimacy, all referenced websites and literature are included. The study’s conclusion is that the minor’s position in the current legal framework on reunion harms the minor child. The judiciary should address this issue and set a strong, clear precedent to protect the minor and give him the opportunity to participate in reunion agreements while also giving him the right to challenge those agreements.

An irrevocable split is the norm. The reasoning behind this is that while former coparceners still consider their shares to be their separate and exclusive property, they are allowed to engage in transactions with them that can result in legal titles being created in the favour of third parties. The rule that “shares are divided only once” does, however, include several exceptions. In some circumstances, redistribution of the property may become necessary to avoid egregious injustice to the family members. When the facts demonstrate that the partition was carried out after proper and due consideration, a claim that it was unfair cannot be accepted. Because of this, the entire partition must be reopened when property adjustments are not possible.

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[1] Available at https://blog.ipleaders.in/reopening-of-partition/, last seen on 3/5/2023

[2] Available at https://legalserviceindia.com/legal/article-8873-reunion-of-partition-under-hindu-law.html#:~:text=By%20Sajal%20Soni%20%7C%20Views%2011580,status%20is%20through%20a%20reunion., last seen on 3/5/2023

[3] Available at https://www.srdlawnotes.com/2017/02/grounds-for-reopening-of-partition.html, last seen on 3/5/2023

[4] Available at https://www.lawcolumn.in/reopening-of-partition-under-hindu-joint-family/, last seen on 5/5/2023

[5] See, available at https://indiankanoon.org/docfragment/1468438/?formInput=reopening%20of%20partition, last seen on 5/5/2023

[6] Read Sukhrani (Dead) By L.Rs. & Ors vs Hari Shanker & Others on 12 April, 1979, available at https://indiankanoon.org/docfragment/1893459/?big=0&formInput=reopening+of+partition,  last seen on 5/5/2023

[7] Available at https://lawbhoomi.com/reopening-and-reunion-of-partition-under-hindu-law/, last seen on 3/5/2023

[8] Available at https://lawblog4u.in/reopening-of-partition-under-hindu-law/, last seen on 3/5/2023