What is the reopening of partition under Hindu law?
When we look into the historical family concept of India, traditionally, it will begin as a joint or undivided family. This concept comes with India’s cultural and regional parts, which is the basis of Hindu law. All family members like mother, father, sister, etc., live together and besides the same house in the joint family.
In the joint and undivided family concept, the Karta of the family manages all kinds of family decisions on behalf. The primary purpose of the Karta of the family does his work as a responsible person of his family. The Karta has a right to sell the family’s property for the beneficial purpose of the family.
In that concept, we should know that the Karta of the family manages the family’s property on behalf of the family is trusty. All family members are known as a coparcener of that property. Like joint property, all family members have equal rights in that property. Any family member as a coparcener is entitled to ask for partition and receive his share from the joint family property.
At the time of partition of the joint Hindu family’s property, there should be the joint property of the family members. Any coparcener’s personal property acquired in an individual capacity can not include in the partition.
The Karta or any family members can not be prevented from the partition; any family member can demand partition. Suppose the partition is made out between the family members with cause to mistake, fraud, cheating, or against provisions of the law; If any coparcener who affects his legal rights through the partition he can demand reopening the partition.
In this article, we discuss when reopening of partition under Hindu law can be operated and what are grounds for reopening of partition under Hindu law are available for that. And what is the concept of reopening of partition in a Hindu joint family?
What is ancestral property in Indian law?
The property is inherited from the father, father’s father, or father’s father’s father, known as ancestral property. In short, we can say that the property that is acquired by the Hindu great grandfather and passes undivided between the following three generations and comes to the present generation of the same family is called ancestral property.
What types of partition can be defined in the law?
Two types of partitions can be defined that are given below;
Full partition:
As per the name of that, in this partition, all types of family properties are included. For example, family business, movable properties, immovable properties, houses,s, etc. that partition can be divided between all family members.
Partial partition:
In that partition, the properties of the joint family are partitioned only into limited portions between the family members and not a whole. This type of partition can be used when any joint family member wants to separate from the joint family, and other members wish to continue living as joint family members.
When can a partition be reopened under Hindu law?
When the partition is made out by family members of a joint Hindu family, if it is not justified for any coparcener of the family, or is made with the mala fide intention, fraud, misrepresentation, or cheating with any member. He has the right to reopen such partition on that ground, and he can seek a reunion of partition.
Based on the fraudulent manner, the affected person of the family can reopen that. The other thing is that if a partition is made out on the grounds of mistake, fraud, absence of another coparcener, or ignorance of minor’s coparcener right, etc. On that grounds, the partition can reopen.
Who can demand the reopening of the partition?
Any family member of the joint or undivided family is entitled to ask or demand to reopen the partition. On behalf of a Minor coparcener, the guardian or the next friend can request such reopening of the minor’s partition. They can move to court if a minor’s property right is damaged and to pray for an injunction to protect property rights. Even though the partition is completed, they can challenge that and demand reopening it for filing a lawsuit against another coparcener of the property.
What is the effect of Partition Under Hindu law?
After the compilation of the partition in a joint family, the coparcenary status of the family member will end. Thus, when a partition is made out among the family members, they all acquire individual property with their title. As well, all disputes regarding the joint family property will come to an end in the future.
What property cannot be partitioned?
The self-acquired property of the joint family member can not include in the partition of common family property. The family member has acquired such property as an owner with his capacity or acquired by gifts or will that can not include in the partition.
What is a partition suit in Indian law?
The partition can be laid by the coparcener when a question arises regarding the deviation of the joint family property. In that situation, a coparcener can file legal proceedings for demanding their property right by filing a partition suit. A co-owner can file a partition suit against the other co-owner in the case of the lack of mutual understanding between them of the family property.
Grounds for the opening of partition under Hindu law
When the partition comes out on the record among the members of the joint family member that can not be reopened ordinarily, except for any particular circumstances, that partition will be treated as a final that can not revoke at all.
If any circumstances come out, the partition can reopen. Let’s see what grounds on that base the partition can reopen, which is given below.
(1) Minor coparcener
In the joint Hindu family concept, the minor is also eligible to get his property right as a significant coparcener. He can get his share via guardian or the next friend if his property right is prejudiced by the Karta or any other coparcener of the property.
The minor can also protect his property rights. After becoming a major within three years, he can file a lawsuit in his capacity for demanding a partition in the court. However, if he fails to do so within that period, the limitation issue will arise against his property right. That may be, he can lose the right to reopen the joint Hindu family property partition.
(2) Absentee Coparcener
If a coparcener remains absent at the partition process and does not get his share, he is entitled to reopen that partition.
(3) Son in the womb
At the time of a partition, the son in the womb also has the right of family property. If his share is not reserved in the partition, he can demand his share by reopening to partition.
Sons, grandsons, and great-grandsons have the right to divide their inheritance. In the case of a son born after partition but conceived at the time of partition, Hindu law considers a person in the womb to be a person in existence.
(4) Mistake
The mistake cannot count in the way of fraud. If the joint Hindu family property left at the time of the partition mistakenly, that can be compiled with partition. In terms of mistakes, the intent of a coparcener is not to commit fraud or cheating.
(5) fraud
A coparcener feels another member takes a disadvantage or gains more benefits in the partition of joint family property. Then the affected coparcener has the legal right to protect his share by way of reopening the partition.
The partition might be reopened if made fraudulently. Every coparcener has an equal right in the joint family property. Suppose any coparcener creates a misrepresent of the value of a property or distributes a lower share to another, etc. In that situation, the sufferer coparcener is entitled to pray to reopen the partition on that ground.
He can take the plea for the opening of the partition based on fraud at the initial stage of proceedings, which cannot plead at the later stage of the trial.
(6) Disqualified Coparcener
If, due for some reason, any coparceners became disqualified, then legally, he lost his right to receive a share from the joint Hindu family’s property. On that ground, the partition can reopen.
For example, insanity, deafness, virulent and incurable leprosy, etc., that kind of coparcener does not qualify, and on that ground, the partition can reopen.
(7) Adopted son
The adopted son is also eligible to get equal rights from the joint Hindu family, the same as a natural son. That right confers in the provision of section 12 of the Hindu adoption and maintenance act,1956. Thus he is also entitled to reopen partition if he is adopted after the partition; he can reopen such partition for his right.
Conclusion
In India, the joint Hindu family concept is significantly broader under Hindu law than other laws; it takes care of every family member and provides an equal property right as a coparcener of the family property. By using a way of partition, they can acquire their share. However, as we discussed above discuss, due to some reason, if any coparcener prejudices his property right, he can reopen the partition and protect his property right.
