1|Page

NATIONAL LAW INSTITUTE

UNIVERSITY, BHOPAL
PROJECT

ON

REOPENING OF PARTITION
Submitted to: Ms. Kavita Singh
Associate Professor (Law of Torts)
Submitted by: Arunima Kulesh
B.A.LL.B
6th Trimester
Roll No. 2011 B.A.LL.B 28

TABLE OF CONTENT
1. Table of cases..03
2. Introduction04

2|Page
3. Re-opening of partition...06
4. Minor coparcener06
5. Fraud.......07
6. Mistake....08
7. After born son 08
8. Adoption 09
9. Absent and disqualified coparceners 10
10. Conclusion 11
11. Bibliography12

TABLE OF CASES

Swaminatha Odayar v Official Receiver.

Ratnam Chettiar v. S. M. Kuppuswami Chettiar.
A.Venkappa Bhatta v. Gangamma.
Balaji Ganoba v. Annapurnabai
Athilinga Goundar v. Ramaswami Goundar.
Anant Bhikappa v. Shankar Ramchandra.

3|Page

INTRODUCTION
Early sages were not in favor of partition. When the later sages recognized partition, they
were neither in favor of partial partition nor in favor of re-opening of partition. But such were
the social needs that both partial partition and re-opening of partition came to be recognized.
It seems, sometimes, the circumstances are such that equal partition cannot be made. In
such a case a sum of money may be paid to a coparcener by the other coparcener who has
been assigned valuable property. This came to known as owelty. It is in lieu of the property

4|Page
on account of which it is granted. In Swaminatha Odayar v Official Receiver 1 the Supreme
Court said that a decree for payment of owelty money in a partition suit even where it does
not expressly declare a charge creates one by necessary implication on the property allotted to
the member and such charge has precedence over prior mortgage of such property. But apart
from this innovation, the sages did recognized re-opening of partition in certain
circumstances and whenever justice or equity so demanded.
We may review some texts of Hindu sages.
A text of Manu runs: 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
irrevocably.2
On the basis of this text a view has been propounded that if partition is once made, it is
final and irrevocable; it cannot be re-opened. Another text of Manu runs: If, after all the
debts and assets have been distributed accordingly to the rule, any property is afterwards
discovered, one must divide it equally.3 This text does not explicitly talk of re-opening of
partition, but of distribution of the discovered property. Yajnavalkya seems to be more
explicit when he declared:
The settled rule is that co-heir should again divide on equal terms wealth which being
concealed by one co-heir from another and is discovered after partition.4
Katyayana also ordained that the property of which an unequal distribution has been
made contrary to law or the property recovered after being seized or lost, should be
redistributed.5 The courts have taken the view that though a partition once affected is final,
yet it can be re-opened in case of fraud, mistake or subsequent recovery of property.
The matter may be looked at from two angles:
(a) Readjustment of properties, and
(b) Re-opening of partition.

READJUSTMENT OF ASSETS:
1 AIR 1957 SC 577.
2 Manu, IX, 48.
3 IX, 218.
4 Yajnavalkya, II, 126.
5 Cited in Smritichandrika XIV. 718; see also Dayabhaga, XIII, 1, 33;
Viramitrodaya, II, i, 14.

5|Page
The second text of Manu quoted above talks of one case of re-adjustment of the properties
which are discovered after the distribution of assets had taken place. There may be other
cases of this nature. For instance, some properties may be left out from the partition by
mistake or oversight or some lost properties may be recovered later on, or there may be some
items of property whose distribution has to be postponed because they were in the possession
of a third party, such as in the case, of usufructuary mortgage. The process of readjustment
may also be applied to a case of slight inequities which may be adjusted without disturbing
the entire division of properties. Thus, the general rule is that when readjusting can be made,
a partition need not be re-opened.6 But if re-adjustment is not possible, the partition may be
re-opened.

RE-OPENING OF PARTITION
It is established that whatever an unequal partition has been made, partition may be reopened.
The Hindu sages were in favor of such re-opening. In early decision it came to be established
that a partition may be reopened in case of fraud, mistake or subsequent recovery of property.
6 The Dayabhag is to the same effect; what has already been divided is
not to be divided again, XII, 6; Mitakshara I, ix, 1-3.

6|Page
But there are some cases in which a partition may be reopened on account of change of
circumstances. Thus, an adopted son of a deceased coparceners widow can seek reopening of
partition which was made by the coparcener before his adoption.
We may take up cases in which partition may be reopened.

1. 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 7. 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.
Plaintiffs here alleged that the partition was secured by practicing fraud and undue influence
and by suppressing large assets belonging to the family which were taken by their uncle by
taking advantage of the weakness of the plaintiffs father who was a person of weak intellect.
As per trial court, so far as the partition of the moveable properties was concerned
which was done by a separate document and was severable from the partition of the
moveable properties, was neither unjust nor unfair so as to entitle the minors to reopen the
partition after a long period. The same was confirmed by the High Court. The High Court in
the present case made a slight variation in the decree issued by the trial court by setting aside
the directions of the trial court for the appointment of a Commissioner and by quantifying the
value of the disparity in the share of the plaintiffs, by itself.
The Supreme Court, here as regards immovable property rejected to reopen the
partition even though the properties were not actually valued according to the market rate and
that a notional valuation had been given in the partition deed. Supreme Court took this view
due to its policy of not interfering with concurring findings of two courts below. With regard
to partition of moveable property the Honble Supreme Court after making a detailed study
also reached the same conclusion that it was an unequal partition and the silence of the father
or even his acquiescence in allowing his elder brother to swallow the amount was not a
prudent act and it had caused serious detriment to the interests of the minors which he had to
protect, because the minors at that time were members of the Hindu undivided family.
The Supreme Court laid the following propositions:
7 AIR 1976 SC 1.

7|Page

A partition affected among the members of HUF with consent cannot be reopened,
unless it is shown that consent is obtained by fraud, coercion, misrepresentation or

undue influence.
A strict proof of facts is required to reopen the partition because an act inter vivos

cannot be lightly set aside.

If the partition is done in good faith and in bona fide manner keeping into account the

interests of the minors, the same will be binding upon them.

If the partition effected between the members of the Hindu undivided family, which
consists of minors, is proved to be unjust and unfair and is detrimental to the interests
of the minors the partition can be reopened irrespective of the length of time when the

partition took place.

Where there is a partition of immovable and moveable properties but the two
transactions are distinct and separable or have taken place at different times, if it is
found that only one of these transactions is unjust and unfair it is open to the Court to
maintain the transaction which is just and fair and to reopen the partition that is unjust
and unfair.

2. 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. Gangamma8. In the present case first
defendant was the Karta of the family. On the death of her husband plaintiff claimed partition
of th share of the estate and the share of profits. She here disputed that the partition on
which her signatures were taken persuading her to think that the partition deed was a
document to avoid tax.
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 dependent upon first defendant. Hence it decreed the suit in favor 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.
8AIR 1988 Ker 133.

8|Page
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.

3. MISTAKE
Where, after a partition has been affected, it is discovered that some properties were left out
or included, either by mistake or deliberately, due to some fraud or concealment by either a
family member or even a stranger, or where some properties belonging to the family had been
seized or lost, and were recovered subsequent to the partition, by the family, and in the
interest of the family members, it is desirable that a fresh partition should be made, there can
be re-opening of the partition.
In the case of Balaji Ganoba v. Annapurnabai9 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.

4. AFTER BORN SON

In the case where a son is begotten as well as born after partition is entitled to reopen the
partition where the father has not reserved a share to himself on a partition with his sons. On
the contrary where father has reserved a share to himself, a son who is begotten as well as
born after the partition is not entitled to claim to reopen the partition.

9 AIR 1952 Nag 2.

9|Page
This can be enunciated with the help of case of Athilinga Goundar v. Ramaswami
Goundar10. In this case a Hindu with two wives had one son by his senior wife and two sons
by his junior wife. All the sons at the time of partition were minors. By the partition one share
was allotted to senior wife with her son and two shares were allotted to junior wife with her
two sons. Father retained a few items for his maintenance without having power of alienation.
After his death the property in his hands were to be divided equally among three sons.
Contemplating the situation of an after-born son the partition deed contained a clause saying,
Male children who might hereafter born out of your loins (the two wives) should be
provided for out of the shares allotted to the respective families. Here family had reference
to the two branches represented by the two wives.
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.

5. ADOPTION
A person validly adopted to a deceased coparcener by his widow after the partition may also
reopen a partition.
In the of Anant Bhikappa v. Shankar Ramchandra11. In this case a person Anant, was
adopted in 1930, who purported to enter the coparcenary of which Keshav was the last
survivor. Keshav had died in 1917 and the property vesting in him during his lifetime had in
fact devolved by succession on Shankar. Anant by his adoption claimed to be the adoptive
brother of Keshav and thereby demanded that the properties, which Shankar had obtained by
succession on Keshavs death, should be returned to him. This claim made by the plaintiff
10 (1944) II MLJ 146.
11 46 Bom. L. R. 1.

10 | P a g e
was decreed by their Lordships of the Privy Council on the reasoning that by the death of the
sole surviving coparcener the termination of coparcenary is not effective or complete so long
as there is any potential mother in the joint family. Therefore it said that on the death of
Keshav in 1917, though seemingly coparcenary had been terminated however it was revived
by the adoption and the adopted son entered this coparcenary by reason of his adoption.
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.

6. ABSENT AND DISQUALIFIED COPARCENERS

Though partition cannot be delayed by the absence of coparcener, however his share cant be
ignored because of the mere fact that he was unable to claim for himself at the time of
partition. If at the time of partition no share is allotted to him or an unequal, unfair share is
allotted to him, on his return he is entitled to reopen the whole partition.
Under Hindu law a person suffering from a disability that disentitles him to inherit
cannot claim a share on partition but is entitled to maintenance. However if the defect is
removed by medicaments at a period subsequent to partition, the right of participation takes
effect by analogy to the case of a son born after separation.

11 | P a g e

CONCLUSION
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.

12 | P a g e

BIBLIOGRAPHY

Course Material on Family Law-II, B.A.LL.B. (Hons.) 2 nd Year; VI Trimester,

compiled by Kavita Singh, Associate Professor, NLIU.

Pa
Manupatra