Table of Contents

Re-opening of Partition; Re-union

Table of Contents

Theoretical overview

Re-opening of partition

The general principle regarding partition is that partition once made, becomes final and cannot be re-open. However, it can be done in following circumstances: –

  1. Mistake- a suit can be filed, if any of the joint family properties have been left out of partition by mistake, they can be subjected to partition later.
  2. Fraud-The partition can be reopened if any of the coparceners had done any fraudulent or mala fide act. For example, if any of the property has not been made subject to partition fraudulently.
  3. Unequal distribution or against the law
  4. Property allotted to third person – if after the partition, it was found that the property has been allotted to some other person who is not subject to such partition, the partition done can be re-opened.
  5. Disqualified Coparcener-Due to some reasons, the disqualified coparcener might be underprivileged from his share of the property at the time of partition. In such a situation, he could get the partition removed after the disqualification is removed.
  6. Son in Womb-If a son is in the Womb at the time of partition, and no share was allotted to him, at the time of partition then later it can be reopened.
  7. Adopted Son-The adopted son is permitted to re-open the partition in case if the widow of a coparcener adopted a son after the partition. Such adoption under the Hindu Adoptions and Maintenance Act 1956 related back to the date of death of deceased husband & such adopted son can reopen partition.
  8. Absent Coparcener-Coparcener who is not present at the time of partition has a right to reopen the partition if he is absent at the time of partition and no share is allotted to him.
  9. Minor Coparcener-If a minor coparcener can claim for reopening the partition if he is not allotted his share at the time of partition, after attaining majority. If at the time of partition his interests are not be properly safeguarded then he can reopen the partition.

Reunion after partition

Reunion is a process by which two or more members of a hindu family, after having become separate, reunite in such a way as to constitute joint family. He, who once separated, dwells again, through affection with father, brother or paternal uncle is termed reunited with him.a reunion can take place between persons who were parties to the original partition.

Under Mitakshara school, two conditions need to be fulfilled which are as follows: – 

  • Parties must be the parties to original partition
  • Must have reunite only with his father, brother or paternal uncle but not with any other relative

Reunion how effected – 

  • There shall be agreement between the parties to reunite in estate with an intention to revert to their former status.
  • There must be the intention to reunite in estate and interest.
  • Original partition deed may reunite by an oral agreement.
  • A minor cannot reunite because he is not competent to contract
  • Mere living and carrying business together is not conclusive evidence of reunion.

Effect of reunion – 

  • There is no difference between coparcenary by birth or by reunion
  • All the rules of a Hindu joint family will apply
  • Effect of reunion is to remit the reunited members to their former status.

Relevant sections

1. Section 30 of the Hindu Succession Act, 1956, confers the right to the coparcener to make a testamentary disposition of his interest in the joint family property. This right can be used for separation also. Therefore, a coparcener can make a valid will to separate his interest from the joint family property and to be donated to a hospital, school, any other person, etc.

2. Section 23 of the Hindu Succession Act, 1956: Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:  Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.

3. Section 23 of the Hindu Succession Act, 1956 after the 2005 Amendment: This section has been amended by the amending Act of 2005. As a result, the disabilities of female heirs were removed.

Important case laws

There is not important judgements of the court regarding the reunion and reopening of partition which is capable to be served as a precedent as it is more of a theory based concept.

Points to remember

  • The general principle regarding partition is that partition once made, becomes final and cannot be re-open
  • Mistake- a suit can be filed, if any of the joint family properties have been left out of partition by mistake, they can be subjected to partition later.
  • Disqualified Coparcener-Due to some reasons, the disqualified coparcener might be underprivileged from his share of the property at the time of partition. In such a situation, he could get the partition removed after the disqualification is removed.
  • Reunion is a process by which two or more members of a hindu family, after having become separate, reunite in such a way as to constitute joint family
  • There shall be agreement between the parties to reunite in estate with an intention to revert to their former status.
  • There is no difference between coparcenary by birth or by reunion

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