Lawblog4u
(1) introduction:
The concept of reopening of partition in a Hindu joint family
The joint or undivided family is the main base of Hindu law, which is traditionally and historically belongs in India. This concept is also directly connected with Hindu law.
Here in this family concept, the Karta of the family makes all kinds of decisions ever financially and socially, on behalf of the family, for the benefit of the family. In the concept of a joint family, all family members like mother, father, sons, daughter, etc. are live together in the same house.
In the Partition of joint Hindu properties, the main thing is properties must be joint family property. No individual property of any coparcener can include in the Partition as a joint family property.
Any Major and sound-minded member of the joint family is eligible and entitle to establishing his right in the joint family properties, and he can also demand partition.
None of a family member or Karta can prevent the coparcener for demand partition, whether such demand has justifiable for all members or not. The Karta of the family is duty-bound to comply with that demand.
(2) kind of partitions:
Generally, the partition can categorize into two types, the first one is a Total partition, and the second is a partial partition. Let’s know some details of both types of Partitions.
Total partition:
These types of partitions include all the property of the joint family like movable, immovable, house, family business, etc. The whole property divide between all the family members of the Hindu undivided family, and as a coparcener, all family member get their share.
Partial partition:
The partial partition means to partition off some parts of the property of the HUF. In the case of any family member want to leave the Hindu undivided family or want to be separate from the Hindu undivided family, other members of the family continue to live as a Hindu undivided family member.
In that case, the division of property is only made out for the member who wants to leave or separate from the HUF, and the remaining property will continue between the rest family members.
After all, there it doesn’t matter if the partition made out for a total or partial Partition between the member of joint family members. But in some circumstances, it happens that a member of the family seeks to reopen the partition.
Here one question is arises that once the partition is made out between the joint family member can be reopened or not?
To find out this answer, we have to know in which circumstances the Partition might reopen because, without any particular ground, there is no provision to reopen the Partition in Normal terms. Generally, the following condition can be considered for reopening the partition. Let’s know, what is the reopening of partition under Hindu law?
(3) Grounds for reopening the partition in the Hindu family law:
It is well-settled law that according to the provision of the Hindu law, When the partition made between the members of a joint family, it can not reopen ordinarily. Generally, such type of Partition is final, and it can not revoke.
If some Special circumstances would come out on the record, then the partition can reopen. Here, some following conditions mention, after considering that grounds, the partition can be reopened.
(1) fraud:
If a partition is found to be fraudulent, it may be reopened. For example, useless assets are fraudulently misinterpreted as valuable assets and distributed to a coparcener. It is entitled to demand the reopening of the partition.
It is true that fraud is ground for reopening of partition, but it does not mean that the plea of fraud can be taken at any stage of the trial.
Such kind of plea can be pleaded initially in the plaint. The court can not allow that plea at a later stage of the trial.
Whether any coparcener has tried to obtain an unfair advantage, and gain the personal benefit at the time of partition of joint family property, then other coparceners can protect his legal right by demanding of reopened the partition among the HUF.
(2) Mistake:
Basically, this ground is different from the fraud, because here intention of the coparcener does not want to cheat or fraud with other coparceners. If by mistakenly, any property of HUF left to division at the time of partition, it can be added such property by partition later.
(3) Disqualified Coparcener:
Disqualification of a coparcener is also a ground for reopening of partition. Sometimes it happens that due to some reason if a coparcener is disqualified, it has no right to demand the partition.
Held he is not entitled to get a share of the joint family property. If a coparcener becomes disqualified, after the Partition, there is a ground to reopened Partition.
There is a different ground for disqualified, for example, Blindness, insanity, deafness, ignorance, virulent and incurable leprosy, and other Incurable diseases that make sexual intercourse impossible are congenital and incurable.
(4) Son in the womb:
When the son in the womb at the time of a partition, and at that time his share did not be partial or reserved, he has the right to reopen the Partition and get the share in the joint family property.
The son in the womb, at the time of partition, and born after a Partition. He is entitled to get a share of joint family property.
(5) Adopted son:
The adopted son also has an equal right to partition with a natural son, when we see the provision of the Hindu adoption and maintenance act,1956, under section 12, that right defines the adopted son.
Held an adopted son is also entitled to reopen the partition. If the son is adopted, after the family property partition is made out, he has the right to reopen a Partition for his property right.
(6) Minor coparcener:
In the joint family property as a coparcener, the minor has the same as a Major coparcener. In some cases, when a minor’s property right is prejudiced by Karta of the joint family.
The guardian of the minor or the next friend of the minor can file a partition suit on behalf of the minor’s property right, and he can pray for a stay or injunction regarding the partition in the court. Even if a partition is made out, he can challenge and reopen it in the civil court.
Here is one thing we should note that at the time or after the partition if a guardian of a Minor or the next friend of a minor could not challenge or files a partition suit. Then, after becoming a major within three years, the minor can file a partition suit his individual capacity. But after laps that time, he can face some limitations issue regarding the reopening of the partition, or he may lose his property right in the joint family property.
(7) Absentee Coparcener:
Any coparcener absents during the partition process and, his share did not to allotted him due to his absence. He can reopen such a partition and get his share from the joint family property.
(4) Conclusion:
As per the above details discussion, we can say that once the partition is taken place, it can not be revoked in Ordinary terms or can not reopen without any particular circumstances. If any coparcener is lost his share of the joint Hindu family property due to unfair partition, he is entitled to reopening it.
