This article is written by Sparsh Agrawal, student, Symbiosis Law School, Hyderabad and Devansh Singh of Bennett University (the times of India Group), Greater Noida (U.P.). In this article, a critical analysis of Partition under Hindu law is done in accordance with the relevant provisions and case laws.
The division of property into two parts is known as partition. Under the Hindu law, partition means a division of property of a Joint Hindu family in order to give separate conferment of status on the undivided coparceners. It is pertinent to note that no partition is possible if there is only a single coparcener in a Joint family. A coparcener is a person who inherits estate as cohier with others.
The concept of a coparcener is an integral part of the Joint family property in accordance with the Hindu Law. Each of the coparceners has an equal share of the property of the Joint Hindu Family and each of them reserves an inherent title in the property. If a Hindu Joint family decides to do partition then its joint status of a family comes to an end. However, in order to establish a state of jointness among the coparceners in a family, it is imperative to have at least two coparceners present in the family.
A partition can be possible on the property which is capable of being partitioned. If at all there is a separate property of any of the coparceners in the Joint family it cannot be subjected to partition3. In the case of Mrutunjay Mohapatra v. Prana Krushna Mohapatra, the Court stated that when the elder brother had purchased the property from his persona funds it cannot be subjected to partition and included in the Joint Family at the instance of a younger brother.
Moreover, in the case of Prafulla Kumar Mohapatra v. Joy Kanta Krushna Mohapatra the court stated that when the property belongs to the paternal uncle and there is no substantial evidence about the share of the property of claimant’s father, it would be considered as separate property and not a property of Joint Hindy family.
Partition under Mitakshara and Dayabhaga School
The concept of partition under Hindu law is mainly regulated by two schools of thought, i.e., Mitakshara and Dayabhaga, respectively. Both schools have two distinct meanings for the term ‘Partition.’ As far as Mitakshara school is concerned, partition does not simply mean division of property into certain or specific shares amongst the coparceners, but it actually means a division of status along with severance of interest, i.e., in ancestral property, the shares of the coparceners fluctuates as per the birth and death of the coparcener, which means that whenever a birth takes place in a joint family, the shares of the coparceners decreases, whereas when the death takes place, the shares of the coparceners increases by its very nature. Under this school of thought, property rights are created by birth, and devolution is through survivorship. So, the partition is said to be completed once the shares are defined, and therefore it is not required that the division of property should take place via metes and bounds. Hence, under the Mitakshara school of thought, unity of ownership is considered as an essence of the coparcenary.
Dayabhaga school: In a Dayabhaga school every adult coparcener reserves a right to demand partition by the physical demarcation of his shares. Such partition must be in accordance with the demarcation of specific shares of partition i.e. partition by bounds and metes.
Mitakshara school: In Mitakshara school there is no demarcation of property into specific shares, and essentials of a coparcener need to be established, but the existence of Joint property is not an essential element for demanding partition. All it takes to demand a partition is a definite and unequivocal declaration that conveys his intention of separating from the family.
De jure and De facto Partition
De Jure Partition: In an undivided coparcenary, all the existing coparceners have a joint share in the property, and till the partition takes place, none of the coparceners can tell the exact amount of share that he owns in the property.
Further, due to the application of the doctrine of survivorship, the interests can keep on fluctuating due to births and deaths of the other coparceners. But, when the community interest is broken down at the instance of one coparcener or by mutual agreement that the shares are now clearly fixed or demarcated, such type of partition is known as De Jure partition wherein there is no scope of application for Doctrine of Survivorship.
De facto Partition: Unity of possession which signifies the enjoyment of property by the coparceners may even continue after severance of Joint status or division of community interest. The amount of shares in the property might not be fixed but no coparceners reserve the right to claim any property as falling into his exclusive shares. “This breaking up of Unity of Possession is affected by an actual division of property and is called a de facto partition.”
Essentials of a valid partition
It is pertinent to note that a coparcener reserves a right to demand partition at any time without the consent of the other coparceners. Therefore, in order to bring demand for partition the following essentials must be established:-
- There must be an intention to separate from the Joint Family.
- There must be a clear, unequivocal and unilateral declaration which conveys the intention to separate from the Joint Family.
- The intention must be communicated to the Karta or to the other coparcener in his absence.
Persons entitled to demand partition
As per Hindu law, every coparcener of a joint Hindu family is entitled to demand partition of the coparcenary property. However, every coparcener does not have an unqualified and unrestricted right for an enforcement of partition.
The persons, who are entitled to seek partition are as follows;
According to Hindu law, both a major and minor coparcener have a right to get a share during the partition irrespective of whether they are demanding a partition as sons, grandsons, or great-grandsons. A coparcener can make a demand for partition anytime with or without reason, keeping in mind that this demand has to be complied upon legally by the Karta of the family. Here, all the coparceners have an undivided interest in the property, and through a partition, the title is divided amongst them, thereby leading to exclusive ownership. In the case of minor, the only condition that has to be considered for demanding partition is that; the suit for partition has to be filed by a guardian of the minor on behalf of the minor.
- FEMALE MEMBERS:
Female members in this regard comprise of three types of females, i.e., the father’s wife, the widowed mother, and the paternal grandmother. Generally, the female sharers do not have a right to ask for a partition, but they can get their share when the joint family property is actually being divided after partition. As far as the father’s wife is concerned, when a partition occurs between a father and his sons, the wife is entitled to get an equal share to that of a son irrespective of the fact that whether the partition has been affected by the father himself or it had occurred at the instance of a son. Due to some reason, if the father passes away without effecting a partition, then according to the doctrine of survivorship, the entire property will be taken by the son, and the wife will not get anything. On the other hand, if we talk about a widowed mother, she is entitled to get an equal share to that of the brother when a partition actually takes place after the death of the father, whereas a paternal grandmother gets an equal share as that of a grandson when a partition occurs after the death of her sons.
- DISQUALIFIED COPARCENER:
Any coparcener who is incapable of enjoying and managing the property due to any deformities like incurable blindness, lunacy, leprosy, etc. from the time of the birth would be considered disqualified and will be disentitled to get a share during partition, but, if in a joint family, a member has no congenital disqualification, then he would acquire a right by birth, in the coparcenary property, and thus, if he becomes insane subsequently over time, then he would not be deprived of his interest.
- SONS BORN AFTER PARTITION:
After-born sons are usually categorized under two heads; firstly, those sons who are born or conceived after partition, and secondly, the sons born after partition but begotten before the partition. In other words, if a son is said to be in her mother’s womb, then he would be treated in existence in the eyes of the law and can re-open the partition to receive an equal share along with his brothers. On the other hand, if a son is begotten or born after partition, and if his father has taken his share in the property and has got separated from the other sons, then also the newborn son would be entitled to his father’s share from the partition, but here, in this case, he wouldn’t be entitled to re-open the partition for his separate property.
- SON BORN OF A VOID OR VOIDABLE MARRIAGE:
A male child born of a void or voidable marriage is considered to be the legitimate child of his parents and, thus, is entitled to inherit their separate property as per the law. He cannot inherit the property of parent’s relatives.As far as statutory legitimacy is concerned; the male child can be treated as a coparcener for the properties held by the father. He does not have a right to ask for partition during the putative father’s lifetime. Furthermore, he can ask for partition only after the father’s death. So, it can be concluded that the rights of a son born of a void or voidable marriage are much better than an illegitimate child but are inferior to those of a child born of a valid marriage.
- ADOPTED SON:
According to the present scenario, an adopted son can become a member of the joint family through a valid adoption. This change was brought after the passing of HAMA, 1956, where all the laws related to adoption were clarified and modified. Now, post-adoption, an adopted son is considered dead for the natural family and is presumed to be born in the adoptive family, meaning thereby, he acquires a right by birth in the joint family property from the date of adoption. Therefore, he is entitled to demand a partition in joint family property and have a right to an equal share to that of the adoptive father.
- ILLEGITIMATE SON:
Under Hindu law, an illegitimate son’s right to get a share during the time of partition depends upon the caste to which he belongs to. Presently, an illegitimate son cannot inherit from the father, but he can inherit from his mother. As far as three castes are concerned, viz. Brahmins, Kshatriyas and Vaishyas, an illegitimate son is not regarded as a coparcener under it and do not have any vested interest in the joint Hindu family property, and thus, he is not entitled to demand a partition. However, he is entitled to maintenance out of his father’s estate.
Effect of Partition
A Partition can lead to severance of property or separation of property in a joint Family. After partition, a person is considered as free from his rights, obligations, duties and responsibilities arising out of a Joint Family. After the partition has happened the fixed number of shares of every existing coparcener gets defined. Moreover, post-partition since the number of shares has been fixed the fluctuations that happen in a family due to births and deaths stops. And the property which has been acquired by the coparcener after the partition will be known as his separate property or self-acquired property.
Partition of coparcenary property
If an intention is expressed to partition the coparcenary property, then each share of coparceners becomes clear and ascertainable. It is pertinent to note that once the share of the coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as joint tenants but they will possess the property as tenants-in-common. Tenancy in common is an arrangement where two or more people share rights in the property.
Various modes of partition
Partition by father
The father under the Hindu Law has superior powers in comparison to the other coparceners wherein by virtue of his rights i.e. ‘patria potestas’, he can separate himself from the Joint family15 and also separate each and every son, including minors by affecting a partition.
Partition by agreement
If all the coparceners dissolve the joint status, it is known as Partition by agreement. The court does not have the power to recognize any partition unless there is an agreement between the parties on mutually agreeable terms. Moreover, a Partition agreement can also be an internal arrangement among the family members, wherein the rights are compromised in order to keep the dignity of the family and avoid unnecessary litigation. It is pertinent to note that coparceners by a mutual agreement, can agree that they would not affect partition till the happening of certain event, specific time period or even till the life of a particular coparcener.
Partition by Suit
The most common way to express one’s intention to separate himself from the joint family property is filing a suit in the court. As soon as the plaintiff expresses his unequivocal intention to get separated in the court, his status in the joint family property comes to an end. However, a decree from the court is required which decides the respective shares of the coparceners. The severance of status takes place from the date of filing such a suit in the court. Both a minor and a major coparcener may approach the court for this purpose.
In the case of Jingulaiah Subramanyam Naidu v Jinguliah Venkatesulu Naidu, a partition was sought of the property in the name of the wife of the opposite party claiming that they are joint properties and without making titleholder as the party. Therefore, the court stated that when the partition is sought of a party, it is a mandatory condition to make titleholder as a necessary party.
Partition by Conversion
Conversion to a non-Hindu religion can lead to severance of status of coparcener belonging to the Joint Family. The member who converted into religion would lose his membership of the coparcenary but it will not affect the status of other coparceners.
Partition by Arbitration
In this mode of partition, an agreement is made amongst the coparceners of a joint family in which they appoint an arbitrator to arbitrate and divide the property. Such a partition becomes operative from the date thereof.
Partition by Notice
“The essential element of partition is the intention to separate which must be communicated to other coparceners. Therefore, a partition may come into effect even by notice to the coparceners, whether accompanied by a suit or not.
Right to Demand Partition
As a common rule, every coparcener of a Hindu joint family is permitted to demand partition of the coparcenary/ Hindu joint family property.
- Special power of father: A Hindu father reserves a right to effect a partition between himself and his sons. Despite the express consent or dissent of his sons, he can exercise this right. Therefore the severance of the property can be done as per the special power given to the father.
- Son, Grandson and Great-grandson: All coparceners, who is major and of sound mind is entitled to demand partition anytime irrespective of whether they are sons, grandsons or great-grandsons. A clear demand made by any coparcener, with or without reasons, is sufficient and the Karta is legally bound to comply with his demand.
- Daughter:-Moreover, daughters, son in a mother’s womb, adopted son, son born after void or voidable marriage, an illegitimate son etc. also reserves a right to demand partition.
In the case of Pachi Krishnamma v. Kumaran, the court stated that the daughter claimed his share as equal to the son in the partition of joint family property, but she failed to prove her customs which says that a daughter can get an equal share as to the son. But after the amendment of 2005 in Hindu Succession Act, it gave the power that a daughter has the right to ask for partition and can claim an equal share as to the son in the partition of joint family property
In the case of Prakash & Ors. v. Phulavati & Ors Full Bench of the Bombay High Court in this case in Para No. 23 of the judgement held that: Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per the law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the explanation.
In the instant case of Danamma Suman Surpur & Anr. v. Amar & Ors, The Hon’ble Supreme Court of India in this case as on 1st Feb 2018 held that: Daughters Have Equal Rights In Ancestral Property, Even If They Were Born Before Enactment Of Hindu Succession Act.
In the instant case of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan. Vs. Patel Shantaben Bhikhabhai & Others, in this the Gujarat High Court as on 26/09/2017 held that a Hindu daughter after marrying to a Muslim guy does not lose her right to inherit property under The Hindu Succession Act . It was further observed that:
“Prima facie, I am of the view that for the purpose of getting her name entered in the record of rights, all that was necessary to be indicated was that the applicant is one of the Class-I legal heirs. It was not necessary for her to declare that she is married to a Muslim and she has embraced Islam by renouncing her Hindu religion. Once the question of law is answered in favour of the applicant, I do not see any good reason to lay much emphasis on the issue of an affidavit filed by the applicant.”
4. Minor coparcener: The test for partition in case of a minor coparcener is whether the partition is in the benefit or interest of the minor or whether it can cause danger to the interests of the minor person. It is pertinent to note that it’s upon the discretion of the court to decide that a particular case falls under the ambit of interests of the minor.
As per the Hindu Law, if at all a minor has an undivided share in a Joint Family the Karta of the Joint family will act as a guardian of the minor. However, when it comes to the right to demand partition by a person, the rights of the minor and rights of major are similar in nature.
The minor reserves a right to claim partition just like an adult coparcener by filing a suit through his guardian. But, if it is found that the suit is not beneficial to the minor the suit can be dismissed. Therefore, it is the duty of the court to serve justice to the minor by protecting their rights and interests.
Reopening of Partition
The Hindu law, after the partition, has made it possible to reopen the partition or revoke the partition. In the cases of Mistake, Absentee Coparcener, Fraud, Son in Womb, Son conceived and born after partition, Disqualified coparceners and the additional property after the partition can be reopened in accordance to the Hindu Law.
- Mistake: If at all the members of the Joint family have left their joint family properties by mistake and are left out of the partition, then the partition can happen later.
- Fraud: Any partition can be revoked which is done because of the fraudulent activities. For example- If the assets are fraudulently represented, then the coparcener can claim his right for the reopening of partition.
- Disqualified coparcener: There can be instances wherein due to some technical constraint, the disqualified coparcener can fall short of his share at the time of partition. He reserves a right to get the partition removed by removing the disqualification.
- Son in Womb: If a son is in Womb, and no shares were allotted to him, at the time of partition then later it can be reopened.
- Absentee Coparcenary: Coparcerner can reopen the partition if he is absent at the time of partition and no share is allotted to him.
Reunion under Hindu law
The Dayabhaga, Mitakshara and the Madras School of Law are of the opinion that when a member of a Joint Family if once separated, they can only be reunited with father, brother and paternal uncle and not with the other members of the family. It is pertinent to note that only the coparceners who are affecting the joint status and it’s only at the instance of a coparcener that a reunion can take place.
In order to constitute a reunion, there must be the intention of the parties which conveys their interest to reunite. By showing an intention to reunite there is an agreement between the parties to reunite in the Joint family. Such an agreement need not necessarily be expressed and it can be implied also. Moreover, the Burden of proof of reunion will be on the person who is willing to assert it. The members tend to come back together if at all they can maintain the severance but can also dwell together or trade together. This coming together is totally different from a formal reunion.
Suit for Partition
Suit for partition and Joint Hindu Family
Where there were no accounts of the joint family income nor any substantial proof that has been submitted in order to show that property as alleged was actually purchased by father from the Joint family income and on the other hand, the defendant brother was successful in proving by cogent and necessary evidence that the property in dispute was actually acquired from his own income and resources i.e. without taking any aid from the joint family income, therefore, the suit filed by plaintiff-brother is liable to be dismissed.
Moreover, it was further held that if at all any family member were living in the same premises, there could not be any presumption or any inference with regard to the joint family nucleus so far as income is concerned until and unless it is proved in accordance with any cogent legal evidence.
Suit for partition and separate possession filed by minor son
When the suit was filed by minor son for partition and there was no dispute with regard to fact that Karta and his son both were entitled to half of the share in the suit property, however, at a later stage it was found that the Karta had sold a portion of the suit property without having the consent and knowledge of the minor son.
Then it was accordingly held that in the event of partition between the parties the portion which is sold already by Karta under sale in question cannot be allotted to his proposed share and as such no prejudice per se would be caused to the minor son due to the sale in question and so impugned order holding a sale in question and so it was accordingly held that the impugned order is valid and it does not require any inference.
Suit for partition filed by widow
If at all a suit is instituted by a partition i.e. a member of a Joint Hindu Family, all the coparceners have to be made parties to it, as defendants. Further, wherein the partition is sought between the branches, then only branches who are representative parties shall be made parties to the suit.It is imperative to note that all the females in the family are entitled to get the share at the time of partition. or a purchaser of a coparcener’s vested interest can also be implicated as defendants.
In the case of Jingulaiah Subramanyam Naidu v. Jinguliah Venkatesulu Naidu, in the instant case, a partition was sought of the property in the name of the wife of the opposite party and they were accordingly claiming that they were as the joint family proprieties and therefore no as such titleholder of the instant property has been made. Therefore, the apex court held that when there is a partition of a particular property, the titleholder must be made a necessary party for such property.
Effect of oral partition
In Ram Charan Sharma v. Suresh Chand Pathak and others, the finding was recorded by the Trial court that the deceased had orally partitioned the disputed property equally in favour of the two sons during her lifetime in presence of her husband and sons.
However, the husband was claiming one-third share in the disputed property but due to failure on part of the husband i.e. to examine himself before a trial court to state on oath that no partition had taken place during the lifetime of his wife, it was duly held that husband would not be entitled to get one-third share of the property that has already been partitioned because of oral partition is permissible in accordance with the Hindu Law.
Moreover, in the same case itself, it was observed that the deceased had orally partitioned the property in dispute equally in favour of the two sons during her lifetime in presence of her husband and sons, however, husband’s claim for the one-third share in the property in dispute was rejected in absence of a separate suit or a counterclaim by a husband seeking a decree for same from the Trial Court with the requisite court-fee, therefore, the husband was held not entitled to prefer an appeal against the partition decree in favour of son.
In a case wherein it was not disputed that the suit property was a joint family property and the document in respect of the partition came into existence after the commencement of oral partition had already taken place, therefore the aforesaid document would neither require requisites of stamp or registration. If at all there is an oral partition, the oral partition itself creates a vested interest in that specific property and not the document which comes into existence later the document can be used for proving the severance of status.
Oral partition in a joint Hindu Family
It is pertinent to note that, where there was an oral partition in the joint Hindu family and the land was duly partitioned among the father and his sons and land as also recorded in the revenue papers accordingly, thereafter, if the father had the father has accordingly chosen to reside with elder son who is taking care of father in terms of food and agriculture, it cannot be stated that there was a reunion of the family as it was only a pious duty and obligation of the elder son or any other son of the family to take care of the old father.
Therefore, when the father was taken care by the elder son, the land which fell into the share of the father was taken care by the elder son, and the land which fell into the share of the father by itself cannot be treated as an incidence of reunion.
It is imperative that there must be an agreement which is specific or implied in nature between the parties which can also be gathered from the given circumstances. And the burden to prove the reunion lies on the person who claims reunion of the partitioned family. Therefore, mere residing or providing food and taking care of the lands of the old age father is not bound to be treated as a reunion of the family i.e. to deprive other brothers to succeed property of the father, the consequence on his death will be that all the sons will get an equal number of shares.
Shares to female members at a partition
The allocation of shares to female members in Mitakshara coparcenary partition gives rise to considerable uncertainty and doubt, especially after the passage of new enactments that codify the law of succession, adoption and maintenance.
Most of this is due to partial codification of the Hindu Law. codifying the Hindu law of marriage, succession, adoption and maintenance, the legislature left the law of partition unchanged and even ignored the law of partition to be amended. Under the practice, however, Section 6 of the Hindu Succession Act provides for the retention of a coparcenary under Mitakshara, thus granting succession rights to female members of Class I of the Schedule or to male members who claim through such female members.
Partition at the lifetime of the father
(a)Taking a liberal view that a wife’s right to a share on partition during the father’s lifetime exists due to her co-ownership in the property of the husband, the wife should be allocated a share on partition during the father’s lifetime.
(b)Even if it is to be presumed that it is in place of maintenance, there is no express or implied provision which, during the lifetime of the family, negates its right to such a share on the partition. Such a case cannot be protected by Section 22(2) of the Hindu Adoptions and Maintenance Act, 1956, if it has an impact at all, as it deals only with the maintenance issue subsequent to devolution of property by maintenance.
A paternal grandmother’s right to share among grandsons on a partition is not affected.
A partition claim is filed and the husband or son’s death happens when the suit is pending
(a) If a preliminary decree has been passed in the partition dispute, she will be entitled to both the shares i.e. share on the partition as well as the inheritance.
(b) Where succession opens after a partition suit is introduced but before the preliminary decree is passed, the issue should be considered as open. Moreover, the most preferable point of view would be that she is entitled to the share.
Where a mother or wife receives a share under the Hindu Succession Act on the death of the husband or son and thereafter an actual division among the coparceners takes place
- The right of a woman to share in the partition after her father’s death was “replaced” by the 1937 Hindu Women’s Rights to Property Act. In repealing the Hindu Women’s Rights to Property Act of 1956, the Hindu Succession Act cannot be regarded as reviving the mother’s right in the absence of any explicit legislative provision to that effect.
- The share given to a mother on the partition after the death of the father is in lieu of maintenance. Since the Hindu Adoptions and Maintenance Act codified the law and gave the mother a specific right, the old rule should be considered to have been abrogated if it remains.
It is humbly suggested by the author that the procedure established for partition must be slightly modified, so that partition under Hindu law can be done with ease. There are a lot of material discrepancies pertaining to the filing of a suit of partition and effect of oral partition that has been discussed in this research paper. Further, it is stated that the law of partition must recognize the right to female to partition as there have been cases wherein the rights of mothers and daughters have been discarded.
A partition can be defined as a concept of Hindu Law which is regulated by mainly two kinds of schools of thought i.e. the Mitakshara and Dayabhaga schools respectively. Partition is mainly done amongst the members of the Joint Hindu Family, which means a severance of status of the jointness and also the unity of possession among the members of the joint family.
It is pertinent to note that under Hindu Law can partition can take place via arbitration, notice or an agreement, will etc. Under the Mitakshara school of Law, it has been duly stated that partition can take place by branch or by stripes. However, under the school of Dayabhaga partition is only possible after the death of Karta in the family. Therefore it can be stated that Dayabhaga school does not follow any concept like coparcenary.
So, it can be inferred that partitioning is a method that performs the role of bringing to an end a Hindu joint family. Through the partitioning process, a joint family property becomes every coparcener’s self-acquired property as per its shares. Partitioning can be achieved by separating the land by metes and boundaries, or by severing the mutual relationship, or both. Precisely, partitioning happens in the real sense only when a Hindu Undivided Families joint status ends.
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