Reopening of partition in Hindu joint Family

Reopening of partition in Hindu joint Family

Introduction

The institution of Hindu joint family has evolved from the ancient times where people with strong relationships live with each other either by ties of marriage, kinship or descendants. Basically it consists of all members descending lineally from a common male ancestor together with the wives, unmarried daughters of the common ancestors and of the lineal male descendants represented by the Karta. According to Mitakshara law of coparcenary, the lineal male descendants of a person up to third generation acquire a birth ownership in the ancestral property of such person.

A coparcener can demand his share from the Hindu undivided family since he has the right in the assets of the Hindu undivided family. As right of the partition is given to them there is a question arises that whether there is an option of reopening and reunion in partition. So in this article we are going to discuss about the concept of reopening and reunion of partition under Hindu joint family.

What is Partition?

Partition means to divide a Joint Hindu family property into smaller, separate, and independent units in which the shares of the coparceners are fixed and brings Joint Hindu family to an end. There is a severance of status and joint ownership comes to an end. The property is incapable of division if it is indispensable in nature i.e. religious shrines and ideals, temples, animals, cattle, furniture, wells,  passages, courtyards, stare cases, utensils etc. they cannot be divided by destroying their intrinsic value.

Reopening of partition in Hindu joint Family

When the partition is effected, the coparcener hold the exclusive right to enjoy his share as a separate property because of the severance of the community of interest. But a question arises that whether any coparcener can demand to reopen the partition? Generally the partition of Joint Hindu property is irrevocable which means unable to be unalterable. But the court have taken the view that though a partition once effected is final, yet it can be reopened in some circumstances. If readjustment is possible partition need not be reopened. If equities cannot be solved by readjustment partition may be reopened.

Grounds for reopening of partition of Hindu joint Family Property

1. Readjustment of assets

There may be a situation during partition that there has been genuine mistake during the division of property which may cause loss to a coparcener. In such circumstances, the coparcener can claim to be reimbursed for the loss of the property.

2. Use of malpractices

Proper communication and consent is necessary among the coparceners of the Joint Hindu family to reopen the partition. A partition effected among the Joint Hindu family with their consent cannot be reopened. If it is proved that the consent of the coparcener is obtained by any malpractices like fraud, coercion, undue influence, misrepresentation, etc the partition is eligible to be reopened. A coparcener is entitled to reopen the partition on the discovery of fraud. Full knowledge of all the facts is important as court requires a strict proof of facts in such cases.

3. Son in womb

If at the time of partition, a son is in the womb and no share is reserved for him then he can claim to reopen the partition.

4. Son conceived and born after partition

Son conceived and born after partition can demand the reopening of the partition after his birth. The partition of the joint property can be delay and can be done after the birth of the child, if the pregnancy is known. But if the coparcener not agree with the delay, the share of the unborn child should be reserved equal to that of the other coparcener. If the father of the conceived child has already taken a share from the joint family property then the after born son is not entitled to reopen the partition because he becomes the coparcener with his father.

5. Minor coparcener

If a partition among the coparceners of the joint Hindu family consisting of minor coparceners is proved to be unfair and unjust then such a partition can be reopened because in partition the right of the minor coparcener is equal to that of the major coparcener. The minor coparcener can ask for reopening the partition after attaining majority. The court has also protected the rights of the minor coparcener whose share is not allotted to him due to injustice and unfairness and can demand injunction to stop the partition. It doesn’t matter that there was no fraud, mistake or misrepresentation on the part of the other coparceners. The minor coparceners close friend and guardian can demand reopening of the partition on behalf of him.

6. Disqualified coparcener

There might be a situation in Joint Hindu family where any of the coparcener is suffering from insanity or is lunatic can disqualify him from inheriting and disentitled him from any share in the partition. But after recovering from his disqualification he is entitled to demand reopening of the partition.

7. Absentee coparcener

If a coparcener is absent at the time of the partition for a valid reason and no share is allotted to him, he can get the partition reopened.

8. Addition of the property left out

There might be a circumstances where some of the property were left out due to mistake or other reason than reopening of the partition can be effected by adding the left out property.

The position of female members in the Joint Hindu family:-

Every female of the Hindu joint Family has no right to partition in the property except in the cases of father’s wife, mother, paternal, grandmother, and widow of the coparcener. If the partition takes place and the female member is not entitled to any share than she has the right to reopen the partition effected. But if she dies before the partition, the property will not pass to anyone and will go into the combine joint family property. On commencement of the Hindu Succession Act (Amendment) Act 2005, the daughter of the coparcener will be the coparcener by right and have the same rights in the coparcenary property and have the same responsibility equal to the son irrespective of her marital status.

Conclusion

The injustices in the Joint Hindu family is prevalent from the older times. The issue of distribution of property is a highlighted problem, whose laws and rules are provided under the subject of family law where rights and obligations are provided to every needed member of the family to prevent unjust and unfair advantage to anyone. Even in the issue of reopening of partition the rights of the members are protected who are entitled to claim share by reopening the partitioned property

Author: Raman Saxena,
Delhi metropolitan education affiliated to GGSIPU (2nd year/ law student)