Family Law Project Re-opening of Partition

CHANAKYA NATIONAL LAW UNIVERSITY, PATNAFAMILY LAW-II PROJECT TOPIC: RE-OPENING OF PARTITION Submitted By: Neeraj Kumar, Roll No.757, 2nd Year(4th Semester), Section: A Submitted To: Dr. Shaiwal Satyarthi, Associate Professor, Law CONTENTS Acknowldgement 1. Introduction 2. Hindu Undivided Family 3. Partition 4. Types of Partition 5. Re-opening of Partition 6. Exceptions where Re-opening can be claimed 7. Case laws 8. Conclusion Bibliography ACKNOWLEDGEMENT A jug fills drop by drop…that is what Lord Buddha said years ago, without those drops the jug would be useless and it is a moral obligation upon me to acknowledge all those drops which helped me to prepare the project. Right from my teacher Shaiwal Sir who taught us the importance of law in our life with similar perseverance as a gardener does in nurturing the tender flowers of his garden,.to the various books and case books found in amass in the library certainly proved to be of great help akin to a north star for my journey. I would also like to thank Larry page and Bill Gates for developing such wonderful software as Google and Microsoft word respectively. The former being a terrific search engine which carried the whole project efficiently and exposed me to innumerable sites regarding the legal diamensions of the project topic. The latter being a type writer with its own brains which has everything from the spellchecks ,to font styles to the clip art without which the whole project would have remained in it‟s foetal stage.I would also like to thank my fabulous friends for not bothering me the least while the project was being mooted out. Lastly I would like to thank my parents and the luminous silhouette which tends to guide and look after me not just in the project but also in my life despite my dearth of affection and sincerity towards them. INTRODUCTION A text of Manu, once the partition of inheritance made: Once is a damsel given in the marriage and once does a man say, "I give", these three are done for once and irrevocable. Going by that, a partition once implemented cannot be undone and will remain effective for everyone. However, this is not the case. A partition in a joint hindu family can be re-opened under certain specific and pre-defined exceptional situations. The project first shortly overviews what a joint hindu family is,what a coparcenary is,what is meant by a partition and then finally discusses the circumstances under which a partition already effected can be reopened or demanded to be re-opened. An account of some decided cases follows and finally the report concludes. JOINT HINDU FAMILY A Joint Hindu Family is the normal condition of Hindu Society, or atleast it was until the last few decades. A joint Hindu family is a group of relatives tied together by ties of kinship & marriage and descended from a common ancestor. It includes children, children‟s children down the line, spouses. A joint Hindu Family is normally joint in worship/kitchen/business. Even daughter in laws/widowed daughters who has returned back to their parental side are part of a hindu joint family. A joint family may encompass countless generations. A joint family is headed by a karta who is normally the eldest living male member of the family. Karta has some peculiar rights and obligations under traditional Hindu Law, he has the power and duty of superintendence of how the joint family is run, who is getting what ?, how the members are being maintained ? He is also entitled to dispose off the property in times of dire need/necessity. After 2005 amendments by which women have been given equal proprietary rights in ancestral property even women can be Kartas. A Coparcenary Within the joint family there is a narrower body called the Coparcenory. This includes the eldest male member + 3 generations. For eg : Son – Father – Grandfather – Great Grandfather. This special group of people are called coparcenors and have a definitive right in ancestral property right since the moment of their conception. Earlier only a Son/Son‟s son/Son‟s son‟s son were coparcenors – now daughters are equally coparcenors after 2005. They can get their share culled out by filing a suit for partition at any time. A coparcenor‟s interest is not fixed it fluctuates by birth and deaths in the family. Ancestral & Self Acquired properties. A property is ancestral when acquired through inheritance from ancestors, this property is always shared by members of a coparcenary equally. On the other hand property is self acquired if it is earned by own efforts/learning or other human endeavour. In the latter – the person acquiring is the sole owner and nobody exercises any right on the same during his lifetime. PARTITION Partition is the severance of the status of Joint Hindu Family, known as Hindu Undivided Family under tax laws. Under Hindu Law once the status of Hindu Family is put to an end, there is notional division of properties among the members and the joint ownership of property comes to an end. However, for an effective partition, it is not necessary to divide the properties in metes and bounds. Partition could be partial also. It may be partial vis-a-vis members, where some of the members go out on partition and other members continue to be the members of the family. It may be partial vis-a-vis properties where, some of the properties, are divided among the members other properties continue to be HUF properties. Partition under Hindu Law, can be total or partial. In total partition all the members cease to be members of the HUF and all the properties cease to be properties belonging to the said HUF. Partition could be partial also. It may be partial vis-a-vis members, where some of the members go out on partition and other members continue to be the members of the family. It may be partial vis-a-vis properties where, some of the properties, are divided among the members other properties continue to be HUF properties. Partial partition may be partial vis-a-vis properties and members both. Under Indian laws that pertain to the joint family system, when a joint family undergoes partition, each member of the family is entitled to claim his/her share. Under Hindu law, coparacenary share is the term that is used. When partition is being contemplated and any woman of the family is pregnant at the time, Hindu law recommends postponing the partition till the child is born. In Hindu law, a child in the womb also has the right to a share. However, if it is not possible to reschedule the partition, a share must be kept aside and that share must be equal to the coparcener‟s share. If, in case, the partition takes place without keeping a coparcener share for the unborn child, the after born son has the right to get the partition reopened. TYPES OF PARTITION: 1. Total Partition – It is the type of partition in which the entire family property is being divided amongst the coparceners. After the total; partition takes place, the HUF ceases to exist. All property is being divided among the coparceners of the Hindu Undivided Family. 2. Partial Partition – It is the type of partition which is partial as regards either the person constituting the joint family or as regards the properties belonging to the joint family or both. In case of partial partition, some coparceners may separate from the joint family but other members continue to be a part of the joint family. In this case as regards the property, there may be a division or severance of interest in respect of some part of the estate of the joint family, while the rest of the estate may continue to remain as a part of the property of the joint family. RE-OPENING OF PARTITION Under the Hindu Law , partition is made is made only once but there are some exceptions to this rule. The posthomus son can claim partition so can the heir of disqualified persons and absent coparcener. The case of adopted son must also be included among the exceptions.A partition once effected is usually final and binding on the parties and cannot be opened at the whims and pleasures of the parties. The basic reason is that upon the partition the earstwhile coparceners hold their interest and shares as separate property with an exclusive and valid title towards them. They may enter into transaction as related to them ,so as to create valid titles in favour of third parties. However there could be certain situations where it might become imperative to undertake redistribution of the properties or else gross injustice will be caused to the family members. Manu says:“Once is the partition of the inheritance made ,once is a damsel given in marriage and once does a man says „I Give‟ these three acts of good men are done once for all and are irrevocable” A partition is therefore irrevocable. However as mentioned above there could be situations where a reopening may be advisable. It may be imperative to have a redistribution of the properties in order to prevent gross injustice to the members of the family. An additional distribution was also advised by Manu where more property was subsequently added or discovered. EXCEPTIONS WHERE RE-OPENING CAN BE CLAIMED RIGHT OF SON: A reopening of partition made between the surviving members of a joint Hindu Family at the instance of the son adopted by the widow of the deceased coparcener, the adopted son is entitled to claim that the properties alienated without justifying necessity by the surviving coparcener by the surviving coparcener, should be assigned to their shares and that he should be awarded shares in the property existing at the date of his adoptive father‟s death. Whenever a partition is opened share must be allocated on affair and equitable principle. Equity on such a case would be satisfied if in determining the share of the adopted son, alienation made by one of the coparceners is allotted to his share and the partition is opened on that basis and the properties are relocated on that basis. This in no way is said to interfere with the right of divided coparcener to deal with his share as his own or of impairing the principle that an adopted son is bound by all lawful alienations made prior to the adoption.1 Where in partition between two brothers, one brother transferred a portion of his share to the other in consideration of the fact that the latter had discharged joint family debts out of his separate property , the son of the former cannot question the transfer.2 FRAUD: A partition may be re-opened ,if any coparcener has obtained an unfair advantage in the division of the property by fraud upon the other coparceners.3 If in a suit for partition, no fraud is pleaded initially in the plaint, the plea cannot be allowed to be changed belatedly that the partition was fraudulent.4 However fraud vitiates everything and even a belated plea of fraud cannot be discountenance. Where a consent decree of partition was sought and it was sought and it was found that a widow was shown to have relinquished her rights, on the evidence of fraud being adduced and accepted ,the decree of the partition was set aside.5 Hence where one or more copareceners conceal the joint family property at the time of partition,to gain an unjust and undue advantage over others. Or with an intention of creating a bigger share than what they 1 2 Krishtappa v Gopal ,AIR 1957 Bom 214 (FB) Anathachari v Krishnaswami, (1938) Mad 410 3 Moro Vishvanath v Ganesh,(1873) 10 Bom HC 444 4 Raghunath Tiwary v Ramakanth Tiwary, AIR 1991 Pat 145 5 Santosh v Jagat ram,(2010) 3 SCC 251 would have been entitled otherwise, the partition can be re-opened on the discovery of fraud.6 However in a suit for reopening of partition, fraud cannot be added as ground subsequently,7 at a later stage of trial. ADDITION OF PROPERTY AFTER PARTITION (Suggested by Manu): Where after partition it is effected, it is discovered that some properties were left out, either by mistake or deliberately due to fraud or concealment by either member of a family or even a stranger or where some properties belonging to the family has been seized or lost and where then recovered subsequent to the partition, by the family and in the interest of the family members that a fresh partition be done ,there can be reopening of the partition. However if the distribution of the additional properties can be made effectively without reopening the earlier partition, then he earlier partition should be not disturbed and the recovered property should be distributed among the family members. Illustration: A ,B ,C and D are four brothers living in a house of 21 Acre. In the year 2004 they partitioned their property and took their own shares respectively. However after three years the course of the Ganges river changed leaving an additional space of 7 Acre adjacent to their earlier land .According to the Law of Easements, this additional land belonged to the brothers only. So they can if required so re-open the partition and divide the shares amongst themselves. PARTITION UNJUST AND UNFAIR TO MINOR: If the partition earlier effected was unjust and unfair towards one or more coparceners, 8it can be reopened irrespective of the length of the time that has passed since the earlier partition. Ordinarily a partition effected by a family member binds the minor also, if he was properly represented by his father or any other guardian. Such bona fide partition made in good faith, and which is not prejudicial to the minor‟s interest cannot be reopened by him on his attaining majority, only on the grounds that he was not a consenting party. But where the 6 7 Bishambar Nath v Lala Amar,AIR 1937 PC 105 Raghuynath Tiwary v Ramakant Tiwary, AIR 1991 Pat 145 8 Ratnam Chettiar v M Kuppuswamy Chettiar, AIR 1976 SC 1 earlier partition was detrimental to his interest, it would be the duty of the court to protect the interest of the minor and allow reopening.9 MISTAKE: Where after a partition has been made it was discovered that the property allotted to one of the copareceners did not belong to the family but to the stranger or that it was subject to a mortgage,the coparcener to whom such property has been allotted is entitiled compensation out of the shares of the other coparceners, and the partition may if necessary be reopened for the adjustment of the shares.10 The law on the subject was very clearly summarised by the Supreme Court in a decision11 in the form of proposition: a) Where the partition is effected between the members of the family which includes the minor coparceners ,it is binding the minor also, if it is done in good faith and in bonafide manner keeping into account the interest. b) Where however a partition is proved unjust and unfair and is detrimental to the interest of the minors, the partition can be reopened at any time. In such a case it is the duty of the court to protect the interest of the minors. The onus of proof that the partition was just and fair is on the party supporting the partition. c) Where there is partition of immovable and movable properties and the two transaction are distinct and separable or have taken place at different times, it is open to the court to maintain that which is just and fair and reopen only that which is unjust and unfair. Also in the decision it was held that where a plea that the partition was unfair cannot be countenanced when the facts show that it had been undertaken after due and proper deliberation.12 9 Radhamanin Bhaiyanin v Dibakar Bhuiya, AIR 1991 Pat 95 Maruti v Rama, (1897) 21 Bom 333 11 Ratnam Chettiar v Kuppuswami, AIR 1976 SC 1 12 K Jagannathan v A M Vasudhevan Chettiar, AIR 2001 Mad 184 10 CASE LAWS 1. Ratnam Chettiar v S M Kappu Swami13 The Supreme Court has held that a partition effected between members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. When undivided family consists of minors and the partition effected therein is proved to be unjust and unfair and is detrimental to the interests of the minors, the partition can be reopened whatever the length of time when the partition took place. 2. In Raghunath Tiwary v Ramakanth Tiwary14 If in a suit for partition, no fraud is pleaded initially in the plaint, the plea cannot be allowed to be changed belatedly that the partition was fraudulent. 3. Anathachari v Krishnaswami15 Where in partition between two brothers, one brother transferred a portion of his share to the other in consideration of the fact that the latter had discharged joint family debts out of his separate property , the son of the former cannot question the transfer. 4. Maruti v Rama16 Where after a partition has been made it was discovered that the property allotted to one of the copareceners did not belong to the family but to the stranger or that it was subject to a mortgage, the coparcener to whom such property has been allotted is entitiled compensation out of the shares of the other coparceners, and the partition may if necessary be reopened for the adjustment of the shares. 13 14 AIR 1976 SC 1 AIR 1991 Pat 145 15 (1938) Mad 410 16 (1897) 21 Bom 333 CONCLUSION A partition is generally irrevocable. However as mentioned above there could be situations where a reopening may be advisable. It may be imperative to have a redistribution of the properties in order to prevent gross injustice to the members of the family. An additional distribution was also advised by Manu where more property was subsequently added or discovered. The researcher has tried his level best to dig deep into the project topic and do justification to it. The Researcher has also acknowledged and cited all the source authentically as far as possible. It was really an enriching experience to work on the above dimensions of Family Law, which the researcher is quite sure to have led to opening of new windows for thought , and rejuvenation of the grey cells. He requests to encourage such endeavours even in future. Hope you have liked the project, and any deterrence to the enjoyment due to the researcher‟s fault is deeply regretted. THANK YOU BIBLIOGRAPHY       Davis, Jr. Donald R. 2004. “Dharma in Practice: Ācāra and Authority in Medieval Dharmaśāstra,” Journal of Indian Philosophy Creese, Helen. 2009a. Old Javanese legal traditions in pre-colonial Bali. Bijdragen tot de Taal-, Land- en Volkenkunde Fuller, C.J. 1988. "Hinduism and Scriptural Authority in Modern Indian Law." Comparative Studies in Society and History Hooker, M.B., ed. 1986. The Laws of South-East Asia. Volume 1: The pre-modern texts. Singapore: Butterworth & Co. Jain, M.P. 1990. Outlines of Indian Legal History. 5th Ed, Nagpur, Wadhwa & Co. Aggarwal,RK. Hindu law, Central Law Agency