Saturday, 4 June 2022

Re-opening of Partition

 Re-opening of Partition 

By Shweta Nair

Partition is the international severance of coparcenary property by members of a joint family. According to the Mitakshara Law, Partition is the adjustment into definite shares, of varied rights of various members accumulating to the whole of the family property. 

Partition is a subject of individual choice, and decreases the members to the position of occupants in common, needing only a certain, unequivocal aim on the part of a member to detach and isolate and relish his share in total discreteness. (Girja Bai v. Sadashiv, 43 I.A. 151

The rule is that a partition once created is not possible to be re-opened. However, there are certain exceptions to this rule which are given below, 

  1. A son begotten though not born before partition, can reopen it, if a share has not been reserved for him. 

  1. A son begotten as well as born after partition, can demand a reopening of partition, if his father, though entitled to take a share, has not reserved a share for himself. 

  1. An ineligible coparcener can, on removal of the ineligibility, re-open the partition.

  1. A partition can be re-opened by a minor on reaching maturity, if the partition created during his minority was partial or detrimental to his interest. (This rule however does not apply to partition by decree of a Court, if the minor was properly represented before the Court.) 

In Ratnam Chettiar v. Kuppuswami Chettiar (A.I.R. 1976 S.C.I.), the Supreme Court declared that if a partition was partial or detrimental to the interests of the minor coparcener, such a partition could be re-opened at his insistence, even though there was no fraud or mis-representation or undue influence. The Court also declared that the whole partition is not required to be re-opened if it was partial or detrimental in regard to a distinct and discrete part of the scheme of partition. These principles were accepted and reiterated by the Court in a later case, Sukhrani v. Hari Shanker, 1979 2 S.C.C. 463

  1. If a coparcener has deceptively obtained a biased benefit in the division, or if the property fixed to a coparcener was unfamiliar person’s property, or was subject to a variation, and such a coparcener cannot be compensated otherwise, the partition may be re-opened for re-adjustment of the shares. 

  1. A son adopted by a widow of a departed coparcener is eligible to re-open a partition effected by the coparceners who are alive after his adoptive father’s death and prior to his own adoption. 

  1. Property of which an unequal distribution has been made contrary to law must be redistributed and for this purpose, a partition may be reopened. 

  1. If, through fault, some property is incorrectly fixed to a coparcener, which did not really belong to the family, the partition can be re-opened. 

  1. An absent or lost coparcener can, on his arrival, re-open the partition, if his share was not reserved for him or made over to his wife or issue. 

It may be noted that just re-adjustment of property is not re-opening of a partition. 

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