In this article, Adil Khan discusses the reopening of partition in a Hindu Joint Family.

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Abstract

A Hindu joint family is a fundamental aspect of the life of Hindus-an ancient and unique institution. A Hindu Joint Family consists of the common ancestor and all his male lineal descendants up to any generation along with their wife(s) or widows and unmarried daughters of the common ancestor and of the lineal male descendants.

The Mitakshara Concept of the coparcenary is based on the notion of son’s birth right in the joint family property. Not merely a son, but also a son’s sons and son’s son’s son acquire an interest by birth in the joint family property. The members of the coparcenary having a vested interest by birth are called as coparceners. All the coparceners in the coparcenary have a right to call for partition subject to some exceptions.

This research paper will first shortly overview what partition is, who and how can a partition be affected and ask for a share in the joint family property, and then finally discusses the circumstances in which a partition already affected can be reopened. The paper then proceeds with a short note on the position of female members in the Hindu joint family/ coparcenary and ends later with the concluding lines.

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What is a Partition?

Partition means a numerical division of property and 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 particular 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.

• De jure Partition

Dejure partition brings the severance of status or interest. This happens when the community of interest is broken, either at the instance of one of the coparcener or by the agreement of all the coparceners. In such a partition, the shares become clearly demarcated and are no longer fluctuating.

• De facto Partition

This is a partition by metes and bonds. This happens when the unity of possession is broken. It is only after the de facto partition, the respective shares of the coparceners become their exclusive shares.

In the Mitakshara school, partition simply means the severance of status or interest. It does not mean that a partition is affected only after the division of property in specific shares. A definite and unequivocal intention of a coparcener to separate himself from the family is all necessary to affect partition. Thus, a partition is deemed to be complete by the severance of the status that is de jure partition.

Types of Partition

There are two types of partition.

Total partition

In total partition, the whole property of a Hindu Undivided Family undergoes a total division of property and the same will be divided in between all the coparceners and family cease to exist as a Hindu Undivided Family.

Partial partition

Partial partition can be made when some of the members go out on partition & other members continue as being a member of the family. In such a partition, the rest of the coparceners maintain the joint status with respect to the remaining property.

Who can affect partition?

Every coparcener in the coparcenary has the right to ask for partition provided that he should be a major and of sound mind. 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.

There are two necessary conditions of partition, which brings about the severance of the joint status or interest.

• The formation of intention to separate.
• The declaration of an intention to separate. The declaration involves the expression of intention plus communication of the intention to sever. The declaration of intention that actually severs the status can be verbal or in writing, but it must be clear and unambiguous. The unequivocal communication of intention must be the conscious and informed act of the coparcener.

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.

However, a father has a superior right to ask for partition. He cannot only affect a partition between himself and his sons, but can also impose a partition on his sons inter se. 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 bona fide. 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.

Since, section 8 of the Hindu Succession Act makes no distinction between the separated son and undivided sons in the matter of succession to the separate property of Mitakshara Hindu, it is to be noted that, if there are other sons to father which have separated from him, then they can also claim to inherit father’s separate property along with the undivided after born sons. But where a coparcener who has relinquished his share in the partition, the son begotten after the renunciation can’t claim status of a coparcener, as his father can no longer be regarded as a part of the coparcenary.

There is another category of the members of the joint family who have no right to partition, but if partition takes place, they are entitled to share.

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.

Reopening of partition

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.’

A partition is generally irrevocable. The logic behind is that erstwhile coparceners hold their shares as their separate and exclusive property, they may enter into transactions relating to them, so as to create valid titles in favour of even third parties.

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. However, a plea that the partition was unfair cannot be countenanced when the facts show that it has been undertaken after due and proper deliberations. Thus, when readjustment of properties is not possible the entire partition has to be reopened.

A partition can be reopened under the following circumstances-

Fraud

Fraudulent distribution of properties, unless the person affected by the fraud acquiesces in with full knowledge of all material facts.

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. However, fraud cannot be added as a ground at a later stage of trial and also if no fraud pleaded initially in the plaint, the plea cannot be allowed to be changed belatedly that the partition was fraudulent.

Son in womb or conceived and born after partition

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. 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

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.

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. Even if after his adoption, a son is born to a father, then also shares of adopted sons and natural sons will be equal. Thus, an adopted son is entitled to reopen the partition.

Disqualified Coparcener

Persons suffering from any defect which disqualifies them from inheriting are equally disentitled to a share on partition.

Various grounds of disqualification were recognised by the Hindu law, such as congenital and incurable blindness, insanity, deafness, dumbness, virulent and incurable leprosy and other incurable diseases that made sexual intercourse impossible.

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.

Further, 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.

Absentee Coparcener

A coparcener absent at the time of partition, who has a share in the coparcenary, has a right to call for the reopening of the partition if the partition has taken place in his absence.

Minor coparcener

In partition, 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.

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.

Property added after partition

The reopening of partition can also be affected when some properties were left out, either by mistake or deliberately or when some properties which have been earlier lost or seized were discovered.

If a distribution of the additional properties can be effectively made without reopening the partition, then the earlier partition should not be disturbed.

The Position of Female Members in a Hindu Joint Family

No female has a right to partition, but if a partition occurs, there are certain females who are entitled to share such as father’s wife, mother, paternal grandmother and coparcener’s widow in certain instances.

In the case of a coparcener, a severance of status is enough, and his subsequent demise would not disentitle his legal representatives to claim his share. But for females, the entitlement arises only when the partition takes place by metes and bounds and not just by the severance of the status. However, if the partition takes place and she though entitled, is not given a share, she is empowered to reopen the partition and claim her share.

The only detriment here is that, if the female dies before the partition has been affected, her share does not pass to her legal representatives, but remains in the common pool of the joint family property.

On and from the commencement of the Hindu Succession Act (Amendment) Act 2005, the daughter of the coparcener shall be by birth, the coparcener in her own right, have the same rights in the coparcenary property, and will be subjected to the same liabilities as she would have, if she had been a son.

Thus, she will be counted as a coparcener herself without any reference to her marital status. This amendment is however prospective in application and does not benefit daughters where an undivided coparcener dies prior to the amendment.

Conclusion

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 subsequent to the partition. The rationale behind is to prevent gross injustice to the member of the family.

The research paper tries to cover almost every instance where a partition could be reopened. The paper is informative in nature and does not convey any personal self-generated thoughts and opinion. All the websites and books used for reference are cited for acknowledging the authenticity.

Bibliography

• Donald R. Davis Jr. Dharma in practice: Acara and authority in Medieval Dharam shastra, Journal of Indian Philosophy, 2004.
• CJ Fuller, “Hinduism and Scriptual Authority in Modern Indian Law”, 1988.
• RK Aggarwal, Hindu law, Central Law Agency, (25th Edition) 2016
• Principles of Hindu Law, Universal law publishing co. Pvt.ltd.
• The Hindu Succession act 1956, Eastern Law House
• Dr. Ashok K. Jain, Family law Lectures, Ascent Publications.
• Poonam Pradhan Saxena, Family Law II Lectures, Lexis Nexis, (3rd Edition) 20