What are the circumstances in which a partition can be re-opened?– Explained!

The general principle regarding partition is that partition once made becomes final and cannot be reopened. Text of Manu says: “Once is the partition of inheritance made once, is a girl given in marriage and once does man says ‘I give’; these are done once for all and irrevocably”. There are certain exceptions to this general principle. The excep­tions are as follows:

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1. When a son was in his mother’s womb at the time of partition he may claim reopening of the partition if born alive.

2. When a son is conceived as well as born after partition he can claim reopening of the partition if the father has not taken any share for himself on partition. If the father has taken share, the after-born and after-conceived son will share his father’s share and will be the owner of the entire separate property of the father to the exclusion of other sons.

3. If a coparcener is excluded from taking his share on parti­tion on the ground of some disability, e.g., unsoundness of mind, idiocy, leprosy and other incurable diseases, he is entitled to claim reopening of the partition on removal of the disability.

4. A partition may be reopened if any coparcener has ob­tained an unfair advantage in the division of the property by fraud upon the other coparceners.

5. Where, after a partition has been made, it is discovered that property allotted to one of the coparceners did not belong to the family but to a stranger, or that it was subject to a mortgage, the coparcener to whom such property has been allotted is en­titled to compensation out of the shares of other coparceners, and the partition may, if necessary, be reopened for readjustment of the shares.

6. Where a partition is prejudicial to the interest of a minor coparcener, it can be reopened at the instance of the minor.

Even when one of the coparcener is a minor, joint family property can be partitioned. If the minor has got any grievance, it would be perfectly open to him to get that partition reopened by alleging fraud or unconscionable character of the partition. Parti­tion is not transfer in terms of section 5 of the T.P. Act [Khusmanbed v. Babubhai, A.I.R. 1979, and Guj. 25].

The effect of partition is to dissolve the coparcenary with the result that the separate member holds their shares separately. Share of each member on his death passes to his heirs. But if a member separates from other members, but continues joint with his own male issues, the share of property in his hand will retain the character of coparcenary property as regards the male issue.

The general principle is that partition does not destroy the relationship between the coparceners nor does it affect the right of inheri­tance. There is some controversy as to the right to self-acquired property left by the father, whether that is to be inherited by the joint son alone or it is to be inherited by the joint and separate sons equally.

The Bombay and Madras High Courts’ view is that on the death of a father leaving self-acquired property, an undi­vided son takes such property to the exclusion of a divided son. But the Chief Court of Oudh has held that they both succeed to such property in equal shares. The Allahabad High Court also considered this point in Ganesh Pd. v. Hazari Lai, (1924) 40 A.L.J. 289 F.B. and it agreed with the views of Bombay and Madras High Court.