“Once is a partition made, once is a damsel given in marriage, once does a man say, “I give”, these three things are by good men done once for all and irrevocably.”
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Thus, the general rule is that a partition once made cannot be re-opened. However, there are nine exceptions to the rule, as under:
ADVERTISEMENTS:
1. A son begotten, though not born before partition, can re-open it, if a share has not been reserved for him.
2. A son begotten as well as born after partition can demand a re-opening of partition, if his father, though entitled to take a share, has not reserved a share for himself.
3. A disqualified coparcener can, on removal of the disqualification, re-open the partition.
4. A partition can be re-opened by a minor on attaining majority, if the partition made during his minority was unfair or prejudicial to his interest. (This rule does not apply to partition by decree of a Court, if the minor was properly represented before the Court.)
ADVERTISEMENTS:
In Ratnam Chettiar v. Kuppuswami Chettiar (A.I.R. 1976 S.C.I.), the Supreme Court held that if a partition was unfair or prejudicial to the interests of the minor coparcener, such a partition could be re-opened at his instance, even though there was no fraud or misrepresentation or undue influence.
The Court also held that the entire partition need not be re-opened if it was unfair or prejudicial in regard to a distinct and separable part of the scheme of partition. These principles were approved and reaffirmed by the Supreme Court in a later case, Sukhrani v. Hari Shanker, (1979) 2. S.C.C. 463.
5. If a coparcener has fraudulently obtained an unfair advantage in the division, or if the property allotted to a coparcener was a stranger’s property, or was subject to a change and such a coparcener cannot be compensated otherwise, the partition may be re-opened for re-adjustment of the shares.
6. A son adopted by a widow of a deceased coparcener is entitled to re-open a partition effected by the surviving coparceners after his adoptive father’s death and before his own adoption.
ADVERTISEMENTS:
7. Property of which an unequal distribution has been made contrary to law must be redistributed, and for this purpose, a partition may be re-opened.
8. If, through mistake, some property is wrongly allotted to a coparcener, which did not actually belong to the family, the partition can be re-opened.
9. An absent or missing coparcener can, on his return, re-open the partition, if his share was not reserved for him or made over to his wife or issue.
It may be noted that mere re-adjustment of property does not amount to re-opening of a partition.