June 13, 2021

Reopening and Reunion of Partition under Hindu Law

Family law

Introduction

In order to understand the re-union of partition of a Hindu family, it is important to first understand Partition of a Hindu family. Partition of a Hindu family in simple words is the division of a joint Hindu family unit into more than one smaller family unit. As per Hindu Family Law, Partition of a Hindu family is an act by which a coparcener severs his relations with the joint Hindu family and loses his status of coparcener and becomes an independent individual from the links o the joint family.

A more refined definition of Partition of joint Hindu family, from a source of authority, is found in the Mitakshara school of thought, where, partition is the adjustment of the diverse interests of the whole, by distributing them in to particular portions of the aggregate. The Mitakshara school of thought understands and defines partition to be a severance of status or interest, amidst family. Therefore, mere division of property between coparceners does not amount to partition, but rather the complete severance of status of being a member of the joint family constitutes partition in its true sense.

The other major school of thought in Hindu law is the Dayabhaga school of thought, partition refers to the division of property in accordance with the specific share of the coparcener. The essence of coparcenary is unity of possession whereas in the Mitakshara School it is the unity of ownership. The Dayabhaga School is perhaps a little more progressive as it allows every adult coparcener whether male or female to be entitled to enforce partition. One more point of importance in any partition of Hindu family is that only coparcenary property is subject to partition, the separate property is not liable to partition at all, as it belongs absolutely to the owner itself. In Raghvamma v. Chenchemma, the supreme court held that it is a settled law that a member of a joint family can bring about separate status by a definite declaration of his intention to separate himself from the family and enjoy their share separately.

The resultant partition may be affected in several ways: By the severance of Joint Status or interest-expression of intention, i.e. one member of joint family may express his intention to partition, even though no actual partition takes place. Other ways of affection of partition are by notice, by will, by conversion to another religion, by marriage under special marriage act, by agreement, by arbitration, by father or by suit.

Re-Opening of Partition

According to the Hindu Law and as per the teachings of Manu, a partition once made stands to be irreversible and irrevocable. Although, to cater to the public interest, certain exceptional situations have been allowed by law as cases under which an application to re-opening of partition can be applied.

Re-Union of Partition under Hindu Law

  1. Fraudulent Partition; where a coparcener has unfairly obtained an advantage in the distribution of property through exercising fraudulent behavior.
  2. Person in the womb; in case a son has been conceived at the time of the partition and born after, he too can claim his right to property as a coparcener.
  3. Existence of adopted son or sons; Section 12 of Hindu Adoption and Maintenance Act, 1956 prescribes the right of adopted sons to be coparceners to property at the time of partition.
  4. Coparcener disqualified; in certain cases, a coparcener is held un-entitled to his share at the time of the partition due to certain disqualifications of technical restraint, in which case, he can re-open partition once said disqualification ceases to exist upon him.
  5. Absence of a Valid Coparcener; In a case where a coparcener holding a right to share in the property is absent at the time of partition, and no share is allotted in such coparcener’s name, such coparcener also has a right to ensure re-opening of partition.
  6. Coparcener in Minority; In the case where a coparcener being a minor does not have his interests accounted for, at the time of partition, the said coparcener has the right of re-opening partition.
  7. Addition of Property after Partition; In a case where property is mistakenly or deliberately left out, lost or seized at the time of partition, the partition can be re-opened in the said case if the properties re-surface. Although it is not necessary for the partition to be re-opened for the distribution of the said re-surfaced property, meaning, if the said property can be viably distributed within coparceners without re-opening of partition, there is no necessity of disturbing the prior process.

Reunion of Partition

Reunion is the process of restoration of the Joint status of a family after its partition is affected. In other words, reunion is the situation where a family once joint, and later partitioned, then decides to regain the status of a joint family and affects the reunion to the same affect. Reunion is possible even after a complete partition among Hindu families under Hindu family law. In the case of Bhagwan Dayal v. Reoti Devi, the Supreme Court held that, if there is a separation of a joint Hindu Family, then the family or any of its members can agree to reunite as Joint Hindu Family, although the reunification can only take place for general reasons which would apply in most general cases under the Mitakshara school of Hindu Law. The court provided further clarity on the matter by stating that for the unification/reunion there must be parties that have an interest in the estate and that there was an agreement between the parties who were initially a part of the partition, stating their intention and desires to reunite the estate as a Joint Hindu Family estate. Furthermore, the said agreement, which has to be proved in a eyes of the law, does not need to be a expressed or formal agreement. The said agreement may be an oral or implied agreement, whereby the parties involved have provided their consent to the reunification of the estate. The leading precedent for the reunification of a family after partition is given in the case of Bhagwan Dayal v. Reoti Devi on 4th September, 1961.

The leading text on the topic of reuniting after partition is that of Brihaspati, which states that, ‘He who, being once separated dwells again through affection with father, brother or paternal uncle, is termed reunited with him.” The Mitakshara and Dayabhaga schools of Hindu Law state that the reunion cannot take place with any person other than the father, brother or paternal uncle. On the other hand, the Mayukha and Mithila Schools of Hindu Law hold that the terms of “father, brother or paternal uncle” are used in a mere informative and illustrative sense, and therefore a reunion can be affected with others if they were a part of the original partition. The reunion takes place by the virtue of the Hindu Succession Act, 1956.

Conditions for the parties to reunite:

  1. Partition; a reunion cannot take place if there was to partition in the first place. The question of reunion only arises after the partition is affected.
  2. Intention of the Parties to reunite; the foremost condition for the reunification of the Joint family estate is the intention of the parties to the partition to reunite. If the parties to the partition do not have the intention to reunite then there is no question of reunion.
  3. Unilateral Consent; there must be unilateral consent from each and every coparcener. This means that each and every person who is a coparcener must give their unilateral consent for the reunion to take effect. Such consent although, need not be in the form of a formal agreement, but a mere oral, written or implied consent shall suffice.
  4. Reunion only between parties to the partition; the reunion can only be affected by the parties who were a part of the original partition.
  5. Competence to contract; only a party that is competent to enter into a valid contract can reunite as a coparcener. Therefore a minor or a person of unsound mind cannot reunite.
  6. Similar property not required; it is not necessary to have the existence of the similar property as at the time of partition, for the purpose of reunion.

The conditions for a valid reunion are also laid down by the Madras High Court in the case of Commissioner of Income Tax v. Vaijyapuri Chettiar and Another on 5th January, 1955. Therefore, the primary requisite for the administration of reunion is the consent of the parties/coparceners with the intention to reunite as a joint Hindu family and share common interest in the estate. The consent of the coparceners being unilateral, which means that all the coparceners give their consent to the reunion although such consent need not be in the form of a formal agreement, rather it can be an oral agreement or even implied consent may suffice but such implied consent must be easily provable in the court of law.

Effect of Reunion

The effect of reunion is the reverting of the status of the divided members to their original status as coparceners in a Joint Hindu Family. Meaning, the reunion leads to the status of the previously undivided members of the original Hindu Undivided Family, having become separate from the joint family after the partition, being now reverted again to that of coparceners in a Hindu Joint Family. The separate property of the reunited coparceners does not pass by survivorship to the other reunited coparceners but instead passes by succession to their heirs according to the specific rules.

Succession in case of reunion

  1.  Through the reunion, only the exclusive rights of the property which one had acquired of his share; after the partition, such rights get destroyed. He now acquires the position of the joint-tenant before the partition, sole-tenant after the partition, and that of a tenant-in-common after reunion.
  2. Where there has been a reunion amongst persons mentioned expressly under the Brihaspathi text, i.e., the father, the brother or the paternal uncle, it is important to note that the inheritance law is applicable to them as in the case of the death of any one of whom is a part of the reunion. 
  3. If the person who now acts in the capacity of the reunited coparcener dies, then the issue he leaves behind or the successor he leaves behind or is in the womb, now becomes the owner of his share.
  4. There is no mention of the survivorship in case of reunion. 

Difference between re-opening of partition and reunion of partition

Re-opening of partition is the step that is taken with the intention to reunite, although re-opening or partition may not lead to reunion as the joint Hindu Family. Re-opening of partition is in a way, a corrective measure in the case where a coparcener was denied his rights during partition or for the corrections in the division of shares in the case where the property was divided in a dishonest manner. Although re-opening of partition may also be done in the case where the coparceners simply intend to reverse the partition, and desire to co-exist as a Joint Hindu Family, as previously. On the other hand, the object of reunion is not the correction of any mistakes or fraud during the partition, rather the sole purpose of reunion is the reversal and reverting of the partition and the restoration of the status of the Family as a Joint Hindu Family. Therefore it is easy to gather that while re-opening has a broader use and purpose; reunion after partition is unilateral in its purpose.

Conclusion

Therefore, it can be conclusively stated that reunion is merely a tool the purpose of which is to bring back the family into a whole as a Joint Hindu Family or The Hindu Undivided Family after the Partition has already taken place. The purpose of partition, in other words is to restore the Family to the status quo after the partition has once taken place. Therefore, reunion is a tool that is meant for the unification of the divided family. Hence, it can be gathered here that reunion helps in bringing back as one despite the partition having occurred.

Author Details: Ambuj Deshwal (Inmentac College)

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