(1) Introduction:
The concept of reopening partition in a Hindu joint family
The joint or undivided family is the main basis of Hindu law, which 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. live together in the same house.
In the Partition of joint Hindu properties, the main thing is that the properties must be joint family property. No individual property of any coparcener can be included in the Partition as a joint family property.
Any Major and sound-minded member of the joint family is eligible and entitled to establish 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) Kinds 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 properties of the joint family, such as movable and immovable property, house, family business, etc. The whole property is divided among all the family members of the Hindu undivided family, and as a coparcener, all family member get their share.
Partial partition:
A 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 among the rest of the family members.
After all, it doesn’t matter whether the partition is made out as a total or partial Partition between the members of the joint family. 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 be reopened because, without any particular ground, there is no provision to reopen the Partition in Normal terms. Generally, the following conditions 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 Hindu family law:
It is well-settled law that, according to the provisions of Hindu law, a partition made between the members of a joint family cannot be reopened ordinarily. Generally, such a partition is final, and it cannot be revoked.
If some Special circumstances come out on the record, then the partition can be reopened. Here, the 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 a 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 a plea can be pleaded initially in the plaint. The court can not allow that plea at a later stage of the trial.
If any coparcener has tried to obtain an unfair advantage and gain personal benefit at the time of partition of joint family property, then other coparceners can protect their legal right by demanding reopening the partition among the HUF.
(2) Mistake:
Basically, this ground is different from fraud, because here the intention of the coparcener is not to cheat or defraud 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, for 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 reopen partition.
There are different grounds for disqualification, for example, Blindness, insanity, deafness, ignorance, virulent and incurable leprosy, and other Incurable diseases that make sexual intercourse impossible are congenital and incurable.
Also Read: Reunion of Partition under Hindu Law: Meaning, Rules & Legal Effects
(4) Son in the womb:
When the son is in the womb at the time of a partition, and at that time his share was not partitioned 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 the 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 rights.
(6) Minor coparcener:
In the joint family property as a coparcener, the minor has the same rights as a Major coparcener. In some cases, when a minor’s property right is prejudiced by the 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: at the time of, or after, the partition, if a guardian of a Minor or the next friend of a minor could not challenge or file a partition suit. Then, after becoming a major within three years, the minor can file a partition suit in his individual capacity. But after that time lapses, he can face some limitations regarding the reopening of the partition, or he may lose his property right in the joint family property.
(7) Absentee Coparcener:
Any coparcener is absent during the partition process, and his share was not allotted to 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 loses his share of the joint Hindu family property due to an unfair partition, he is entitled to reopen it.
