In cases where a son is both conceived and born after partition, two possibilities arise. Either the father might have taken his share at the time of the partition or he may not have taken a share.
If the father has taken (or reserved) a share for himself at the partition, the after-born son will become a coparcener with his father, and is not entitled to re-open the partition. After his father’s death, he will get the coparcenary property by survivorship.
As far as the father’s separate property is concerned, before 1956, such a son was exclusively entitled to his father’s separate and self-acquired property. However, after the Hindu Succession Act, 1956, the separate property of the father would devolve, as per S. 8 of that Act, on all sons, whether separated or undivided.
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However, if the father has not taken (or reserved) a share for himself at the time of partition, the after-born son has a right to demand re-opening of the partition, and get the estate re-distributed. This rule applies, like the earlier one, to a partition between the father and his sons.
PROBLEM- A coparcenary consists of a father, A, and his two sons, В and C. A partition takes place, where A does not take any share, and the coparcenary property is divided between В and C. Thereafter, a son D is born to A, and a son E is born to B. Can D or E have the partition re-opened?
Ans- Applying the above rule, it will be seen that D is a son begotten and born after a partition, at which A, the father, did not take a share for himself. D can, therefore, demand re-opening of the partition. However E (who is B’s son) has no such right.