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REOPENING AND
REUNION OF
PARTITION
(A STUDY THROUGH CASE LAWS)
TABLE OF CONTENTS
TABLE OF CASES.............................................................................................................3
INTRODUCTION...............................................................................................................4
RESEARCH METHODOLOGY........................................................................................5
REOPENING OF PARTITION...........................................................................................6
MINOR COPARCENERS........................................................................................6
FRAUD..........................................................................................................................8
MISTAKE......................................................................................................................9
AFTER BORN SON................................................................................................11
ADOPTION................................................................................................................13
ABSENT AND DISQUALIFIED COPARCENRERS.....................................14
REUNION.........................................................................................................................15
NATURE OF EVIDENCE......................................................................................15
PARTITION AND PRESUMPTION THEREOF.............................................17
WHO MAY REUNITE............................................................................................18
CONSTRUCTION OF REUNION AGREEMENT........................................19
CONCLUSION..................................................................................................................21
BIBLIOGRAPHY..............................................................................................................23
TABLE OF CASES
1. A Venkappa Bhatta v. Gangamma AIR 1988 Ker 133.
2. Anant Bhikappa v. Shankar Ramchandra 46 Bom. L. R. 1.
3. Athilinga Goundar v. Ramaswami Goundar (1944) II MLJ
146.
4. Balaji Ganoba v. Annapurnabai AIR 1952 Nag 2.
5. Balasubramania Reddy v. Narayana Reddiar AIR 1965 Mad
409.
6. Balbux Ladhuram v. Rukhmabai (1903) LR 30 IA 130.
7. Bhagwan Dayal v. Reoti Devi AIR 1962 SC 287.
8. Biyyala Chinna Narasamma v. Biyyala Venkata Narasi
Reddy AIR 1954 Mad 282.
9. Debabrata Ghose v. Jnanendra AIR 1960 Cal 281.
10.
Ganeshi Lal v. Babu Lal 40 All 374.
11.
Ganpat v. Gopalrao 1899) ILR 23 Bom. 636.
12.
Hira Singh v. Mt. Mangalan AIR 1928 Lah 122.
13.
Jatti v. Banwari Lal (1923) LR 50 IA 192.
14.
Nanuram v. Radhabai AIR 1940 Nag 241.
15.
Parmanand L Bajaj v. Commissioner of Income Tax
135 ITR 673 (1982).
16.
Parshuram v. Hirabai AIR 1957 Bom 59.
17.
Ram Narain Chaudhary v. Pan Kuer (1934) LR 62 IA
16.
18.
Ramchandra Shrinivas v. Ramkrishna Krishnarao
MANU/MH/0125/1952.
19.
Ratnam Chettiar v. S M Kuppuswami Chettiar AIR
1976 SC 1
20.
Sukhrani v. Hari Shanker AIR 1979 SC 1436.
INTRODUCTION
When and under what circumstances, questions of
ownership among Hindus were first considered, we have no
means to estimate. So far as there was any rudimentary
conception of ownership in early times, it was found in the form
of ownership of property being vested in the family itself, or to
use a modern phrase- ownership was corporate. 1 Corporate
ownership denotes a peculiar kind of ownership where no living
being is the sole owner but there are certain persons who are
managers of the property.2 However if there is any member of
the Hindu Joint Family who is hopelessly dissatisfied with the
management of the joint estate, his only remedy remains in
claiming for partition. This he can always do, as there is no
compulsion upon the members of Hindu Family to live in
common. Partition may be effected either amicably or through
intervention of the court. After a change in status by partition, a
member can no longer be deemed as agent or representative of
the family. Partition once made can not ordinarily be reopened
for Shastras say, once is the partition of inheritance made, once
is a damsel given in marriage, and once does a man say, I give;
these three are by good men done once and for all 3.
However there are certain well-recognised exception to
this principle. One of such is mentioned in Yajnavalka. As per
Yajnavalka, The settled rule is that co-heirs should again divide
on equal terms that wealth which being concealed by one co-heir
from another is recovered after partition. 4 A few of other such
exceptions are of where by mistake stranger property was
included while partitioning and the same was later lost; where
partition was done by fraud.
If two or more coparceners after partition agree to annul the
partition and to live together jointly as before and make a
junction of their property with affection, with the declaration
W Markby, Hindu and Mohamedan Law, (Delhi: Inter-India Publications,
1977), p. 34
2
p.35.
3
Raghavachari, et.al., Hindu Law: Principles and Precedents (Madras:
Madras Law Journal, 7th edition, 1980), p.349.
4
A Kuppuswami, (ed.), Maynes Treatise on Hindu Law & Usage, (New
Delhi: Bharat Law House, 13th edition, 1995), p.753.
1
G Sarkar, et.al., A Treatise on Hindu Law, (Calcutta: Eastern Law House, 5th edition, 1924 ), p. 407.
RESEARCH METHODOLOGY
Aims and objectives:
Present paper attempts to sketch the various circumstances
under which a partition can be reopened and under what
circumstances reunion is possible.
Scope and Limitations:
Scope of the present paper is to conceptualise the cases relating
to reopening and reunion of partition. During the course of
research paper, as per the permission of course teacher only
Mitakshara School has been dealt with. While writing the paper
the biggest hurdle that the researcher had to face was of
unavailability of views of scholars in the form of articles.
Research Questions:
I have attempted to answer the following questions in the
present paper:
What are the different circumstances under which a
partition can be reopened?
What are the requisites for reunion?
Chapterisation:
First chapter has dealt with the various instances where a
partition can be reopened.
Second chapter deals with various requirements for reunion.
Style of Writing:
This paper has largely descriptive style of writing.
Mode of Citation:
A uniform mode of citation is followed throughout the project.
Books in the present paper have been cited in this manner:
Name of the author (or Editor), Title of the Book, (Place of
Publication: Publishing Co., Edition (if applicable), Year), Vol. No.
(if applicable), Page No..
Sources of Data:
Primary sources in the form of law reports and secondary
sources in the form of books have been used to answer the
various research questions.
REOPENING OF PARTITION
MINOR COPARCENERS
A minor after becoming of age can reopen the partition if he can
prove that the partition was not for his benefit or it was unfair
with regard to him. This can best be explained with the help of
the case of Ratnam Chettiar v. S M Kuppuswami Chettiar 6. In
this case two brothers made a partition and at that time
plaintiffs were minors. Under the partition deed both immovable
and movable property were divided with the help of family
auditor of one brother.
S1 (SMK)
Def. 1
S2 (SMR)
Def. 5
S3PlaintiffsS4
S5
Def.3
AIR 1976 SC 1.
10
Plaintiff
Mannulal
Babulal
Son
Sunderlal
11
12
Ibid., para 3
Supra n. 6.
FRAUD
A partition can be reopened in the case of fraud in division of
property. An instance of this can be given through the case of A
Venkappa Bhatta v. Gangamma13. In the present case first
defendant was the Karta of the family. On the death of her
husband plaintiff claimed partition of 1/4 th share of the estate
and the share of profits. She here disputed the partition on
which her signatures were taken persuading her to think that
the partition deed was a document to avoid tax.
Venkateshwara Bhatta
(Sankanna)=W
H = Def 15
(Plaintiff)
D1
Def 1
Def 2
Karta
D2
Here trial court found that in the partition deed less than th
share was given to the widow and also there was no separate
provision for viniyoga. It found that plaintiff, an old lady, was
entirely dependant upon first defendant. Hence it decreed the
suit in favour of plaintiff. The Honble high court closely
examined the partition deed. It found that it was it was a lengthy
and complex document, which could not have been understood
by plaintiff. Among infirmities it pointed out some of these were
like; partition deed didnt say which of the parties are entitled to
which of the properties. It was also highly unjust and
inequitable. Here she was entitled to th of 25 candies, 280
murahs of paddy and 5490 coconuts, but she was given only two
candies. Reading the whole document together and taking in to
account other circumstances the Honble High Court said that
the lady was very much under the influence of the first
defendant and she had no sons or support to look to. On these
grounds it confirmed to decision of the trial court.
13
MISTAKE
In the case of Balaji Ganoba v. Annapurnabai14 it was held that
partition could be reopened if a property which doesnt belong to
the joint family is wrongly included and it subsequently passes
out of the possession of sharer. Here the sharer would be
entitled to compensation out of the shares of other parties and
the partition if necessary may be reopened for readjustment of
shares. In the present case the branch of Ganoba was separate
from that of Dada.
Sakhram
Dada
Ganoba
Parwatibai
Harba
Ganagbai
Vithal
Valmik
On the death of Vithal, his mother had entered into possession of
properties and remained until her death. On her death
Parwatibai took possession of all property. Then plaintiffs and
defendants who are brothers instituted a suit against Parwatibai
and her daughter for possession of property as next
reversionary. On the death of Sm. Tai, Valmik (then minor) was
brought on record. In that suit a compromise decree was passed.
Under that compromise plaintiffs got some property on which
they effected partition. Later on Valmik filed another suit and
claimed all the property left by Gangabai and got the decree in
his favour. As a consequence of it plaintiffs lost most of the
property allotted on partition. Plaintiffs therefore brought a suit
for repartition.
14
Defendant here relied upon the rule that partition once done
cant be reopened except on the ground of fraud or mistake in
including a property which didnt belong to the joint family. But
in the view of the Honble High Court if a property has been
wrongly included and it subsequently passes out of the
possession of a sharer, he is entitled to compensation out of the
shares of the other parties. 15 Here the Court quoted the opinion
expressed by Walsh J in Ganeshi Lal v. Babu Lal16 which is the
right is based simply upon this principle, that where parties
arrive at a partition either by agreement or by a decree, there is
an implied and mutual right of indemnity or contribution in
respect of any paramount claim by a third parties which throws
a burden of loss not contemplated in the partition proceedingsunfairly upon one of the parties. If the original decision has been
arrived at by a common mistake, which, of course, in the case of
decree is adopted by the Court in making the decree the mistake
can be set right pro tanto.17
Another case in this regard is that of Debabrata Ghose v.
Jnanendra18. In this case plaintiff sought to reopen a previous
partition. To appreciate the facts of the case it is first necessary
to have a look at the following genealogical tree.
Dwarkanath
(Rajendra)
Jogendra
(Sidheshwar)=Padma
Bhupendra
Jnanendra
(Nagendra)=
Labangalata (Def.)
(Def.)
Plaintiff
Debendra-
Ibid. para 4.
16
17
Ibid. Para 5.
18
Ibid., para 3.
Ibid., para 7.
Ibid., para 8.
In the instant case six years after partition and allotment, Nagendra had
executed a mortgage of premises allotted. In enforcement of this mortgage,
the property was sold. Long after this, the suit was instituted by the deity
claiming the superior title which was upheld by the Court. On the face of
these facts it cannot be held that Nagendra and/or his heir has suffered loss
by reason of the displacement of title by the deity in respect of the property
allotted to Nagendra. Cited from, Supra n.18, para 13.
23
S A Desai (ed.), Mulla- Principles of Hindu Law, (Butterworths India: new
Delhi, 17th edition, 2000), p. 503.
24
Ibid., p. 502.
25
(1944) II MLJ 146.
22
A son who was born to the wife nearly a year after the partition
claimed reopening of the partition. The sons of junior wife
resisted the claim by saying that a share had already been
allotted to the father and the after born son was entitled to that
share only. The contention of after born son was that he was
entitled to reopen the partition as no share had been set apart
for the father at the partition. The court here distinguished the
present case from the case of Ganpat v. Gopalrao26 where the
father had reserved a share himself at the partition. It therefore
allowed the reopening of the partition. It held that the provision
for giving a share to the after-born son by his uterine brother out
of the property allotted to him couldnt qualify the right of the
after-born son to re-open the partition and claim a share in the
entire property.
Son begotten at the time of partition but born after partition is
entitled to a share as if he was in existence at the time of
partition. If no share is reserved for him at the time of partition,
he is entitled to have the partition reopened and share allotted
to him.27
ADOPTION
A person validly adopted to a deceased coparcenor by his widow
after the partition may also reopen a partition. This may be
explained with the help of the case of Ramchandra Shrinivas v.
Ramkrishna Krishnarao28. In this case one Shrinivas had two
sons, Ramchandra and Krishnaji. Krishnaji died in 1930.
Shrinivas and Ramchandra effected a partition between
(1899) ILR 23 Bom 636. In this case one Venkatrav who had three sons
effected partition. He gave 1/3rd share to his eldest son and retained 2/3 rd in
his own possession for the benefits of his two other minor sons. Later on he
had another son born to him and that son instituted a suit for fresh partition
ignoring the earlier one. The learned judge held that plaintiff was not
entitled to have a fresh partition as though the eldest son received one-third
share instead of one-fourth to which alone he is entitled. Here the effect of
partition was to separate the eldest son from the family. It was held that a
son-born after partition has no claim on the wealth of the separated brother
and that he has preferential claim over the wealth of his parents only. See,
Ibid., p. 148.
26
27
Supra n. 24.
28
MANU/MH/0125/1952.
29
Keeping this in mind the Honble court held that the rights of
an adopted son are not affected by reason of the fact that the
joint status of the family which he seeks to enter by his adoption
has been terminated either by a prior partition between the
surviving coparceners or by the death of the sole surviving
coparcener. In either case the adopted son is entitled to enter his
adoptive family on the basis that the family is a joint and
undivided Hindu family and his rights in the property of the
family must be decided on that basis.30
The court here importantly said that the case of adopted son
must be included in the list of the exception to the rule that
partition can be made only once. Gajendragadkar, J in the
present case equated the position of an adopted son to that of a
son who was in his mothers womb at the time of the partition,
but who is born thereafter.
On the basis of above-mentioned reasoning it was held that the
coparcenary which had been determined by the partition
between Shrinivas and Ramchandra was revived by the adoption
of the plaintiff and that the plaintiffs claim should be treated as
a claim for reopening a partition which had been made without
recognising his share in the family properties. On this basis the
plaintiff was held to be entitled to claim one-half share in the
properties in suit.
31
REUNION
NATURE OF EVIDENCE
It was held in the case of Bhagwan Dayal v. Reoti Devi33 that to
constitute a reunion there must be an intention of the parties to
reunite in estate and interest. It was held that 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. It was also
held that such an agreement need not be express, but must be
clearly implied from the conduct of the parties. In the present
case plaintiff argued that Lachman Prasad, his sons and
descendants constituted a joint family.
Pt. Lachman Prasad
Kashi
Jawala Prasad
Ram
Mst Batashi
Raghubar Dayal = Reoti Devi
Dayal Ram Lal
Def.
32
Ibid.,, pp.333-334.
33
Banwari Lal
Bhagwan
Plaintiff
of the fact that Kashi Ram was not a member of joint family.
Court here also held that coparcenary is a creature of Hindu law
and the same cannot be created by agreement of parties except
in the case of reunion. It is a corporate body or a family unit.
Therefore members of different branches of joint family cannot
form a subordinate joint family.
Another case on this issue is that of Parshuram v. Hirabai34. In
the present case a Hindu family consisted of one Rajaram and
Hirabai and their six sons. One of the sons was Parshuram who
is plaintiff in the present case. Before the present suit the
plaintiff has filed another suit to recover by partition, possession
of his 1/8th share. Lower court in that case had granted a decree
in favour of the plaintiff. This was taken to appeal. This appeal
was later withdrawn. However during the pendency of the
appeal Rajaram had died. Now plaintiff again went to court
seeking to amend his decree so as to increase his share from
1/8th to 1/7th. One of the questions that court here had to deal
with was whether the separation effected by decree in the
earlier suit, was a separation of plaintiff from defendants 35 or
there was separation of all the members of the joint family from
each other. For this examined the decree. The decree declared
the shares of the defendants and it enabled each of the
defendants to get his share separated on payment of necessary
stamp duty. It also contained the provisions for the marriage of
daughters of one of the defendants. Defendants also argued that
notwithstanding the decree for partition, which brought about
severance in the joint status, the defendants agreed to remain
united. This was tried to be proved by the will document of
Hirabai where it was written that income of defendant No.1 was
used for all the defendants and he was the manager of the
family. Also that the income of family lands was used for all
defendants.
The Honble Court then held that in the case where partition was
brought about by the decree, one would require strong evidence
to show that what was brought about by the decree was
displaced by some specific agreement between the members of
family.36
34
35
36
(1923) LR 50 IA 192.
AIR 1954 Mad 282.
39
40
(1903) LR 30 IA 130.
AIR 1965 Mad 409.
41
42
43
(1934) LR 62 IA 16.
Ibid., p.20.
135 ITR 673 (1982).
47
Ibid., p.687.
CONCLUSION
Conclusions of the study may thus be summarised as below:
Reopening of Partition:
If a partition is unfair and detrimental to the interests of
minors the same can later be reopened.
A partition can be reopened at the instance of minor if the
partition was unfair or prejudicial to the interest of minor
even where there was no fraud or misrepresentation or
undue influence and despite the fact that his branch was
represented by his father at the partition.
A partition can be reopened in the case of fraud in division
of property.
Where at the time of partition stranger property was
included by mistake and the same is later displaced by the
claim of better-title holder, partition can be reopened.
A son begotten and born after partition can reopen the
partition where the father has not reserved a share to
himself on a partition with his sons.
Where the father has reserved a share to himself, a son
who begotten and born after the partition is not entitled to
reopen the partition.
A person validly adopted to a deceased coparcener by his
widow after the partition may also reopen a partition.
Partition can be reopened by the absentee coparcener on
return for whom the share was not reserved. Partition can
also be reopened by the disqualified coparcener whose
disqualification has been removed.
Reunion:
BIBLIOGRAPHY
BOOKS
A Kuppuswami, (ed.), Maynes Treatise on Hindu Law &
Usage, (New Delhi: Bharat Law House, 13th edition, 1995).
G Sarkar, et.al., A Treatise on Hindu Law, (Calcutta:
Eastern Law House, 5th edition, 1924 ).
Raghavachari, et.al., Hindu Law: Principles and Precedents
(Madras: Madras Law Journal, 7th edition, 1980).
S A Desai (ed.), Mulla- Principles of Hindu Law,
(Butterworths India: new Delhi, 17th edition, 2000).
W Markby, Hindu and Mohamedan Law, (Delhi: Inter-India
Publications, 1977).