This article is written by Neha Gururani, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the Hindu law of Partition, its effect and various distinct features.
Meaning, Effect and Essence of Partition
Partition is an eventuality in Hindu Joint family through which the joint status of a family comes to an end. Partition gives rise to new joint families or nuclear families. For partition, there must be at least two coparceners in the Hindu joint family because then only there will be a state of jointness amongst the coparceners which will come to an end by partition. It implies that until and unless a coparcenary exists in a family, partition cannot take place.
The concept of coparcenary is an innate part of the Hindu joint family property. Each coparcener has an inherent title to the joint property and all the coparceners together own the whole property.
Partition generally means that joint ownership has transformed to separate ownership of the individual coparceners. Thus partition is also defined as “the crystallization of the fluctuating interest of a coparcenary property into a specific share in the joint family estate.”
The concept of partition is applied with different rules under the two schools of Hindu law.
Dayabhaga School: Under Dayabhaga school, partition means division of property in accordance with the specific shares of the coparceners i.e. partition by metes and bounds.
Mitakshara School: Under Mitakshara school, partition not merely means division of property into specific shares. It basically means severance of joint status. Essential of coparcenary is important but existence of joint property is not essential for demanding partition. It is a law by which the joint family status terminates and the coparcenary comes to an end. All that is necessary to constitute a partition is a definite and unequivocal declaration of the intention by a coparcener to separate himself from the family.
Effect of Partition
Partition leads to separation from the joint family. After partition, a person is free from the rights, duties and responsibilities towards the joint family thereof. On partition the shares of the coparceners get defined and stop fluctuating further due to births and deaths in the family. Property acquired by a coparcener after partition is treated as his self acquired/separate property which devolves by succession.
Essence of Partition
Partition must not be confused with the de facto division of property and allotment of the shares. Partition by metes and bounds is not mandatory ingredient for completing the process of partition. The physical division of the property affects the mode of enjoyment and management only and not the nature of its tenure. Strictly speaking, a partition is said to be completed the moment the severance joint status takes place.
Types of Partition
Coparcenary is a creature of Hindu law. The concept of coparcenary encompasses community of interest and unity of possession. Each coparcener’s right extends to the whole joint family property; though each one of them has an interest in the whole family property, he has no definite share therein. Partition can take place in two ways:
- De jure Partition: When the community of interest is broken or divided and converted into a fix share leaving no scope for the application of doctrine of survivorship, this type of partition is known as de jure partition or in other words, the severance of the joint status.
- De facto Partition: Unity of possession can be maintained even after a severance of joint status. The shares might get fixed but no coparcener can claim any property as falling into his exclusive share. It is not clear that which property will go to which coparcener. When this unity of possession is broken by an actual physical division of the property and replaced by exclusive possession, it is called as de facto partition or partition by metes and bounds.
Subject Matter of Partition
Generally the entire joint family property constitutes the subject matter of the partition. Separate or self-acquired property of any member of the family is not eligible to be divided amongst all the coparceners of the family on partition.
If partition of a property can be done without shattering the intrinsic value of the whole property, such partition is mandatory to be made. On the contrary, if a partition cannot be made without shattering the intrinsic value of the property, in such circumstances, a money compensation must be given to every coparcener instead of his respective share.
If a joint family property consists of movable and immovable properties then each coparcener must be given his share in all movable and immovable properties. As per the interpretations of the court in various cases, there is no hard and fast rule as far as the share of each coparcener in immovable properties is concerned. It may be possible that some coparceners may not get any share in immovable property. It depends upon the nature and number of the immovable properties and also the number of coparceners in a joint family to whom the share in the property has to be given. Properties of greater value may go to one coparcener while of lesser value to another. In such a situation, the adjustment of the value is important. So, the coparcener who gets the larger value property may provide money to the one who gets the share of lesser value. In this way, a justified and satisfactory division of joint property can be done so that each coparcener is equally benefited.
Properties not subject to Partition
As a general rule, the whole joint family property is available for partition. Exceptionally, there are certain kinds of joint family property which are incapable of division by their nature. Such properties are impartible and indivisible. The following are the description of such properties and rules in this regard:
- Impartible estates: The property which descends to one member of the family to the exclusion of other members either because of the application of the rule of primogeniture (the status of being the firstborn child among several children) or by a custom or under any provision of law.
- Indivisible property by its nature: There are certain properties which are incapable of division by their very nature. For example, animals, wells, stair case, furniture, utensils, ornaments etc. The general division of these types of property will lead to distortion of their intrinsic value, thus cannot be divided directly. Therefore, these can either be sold and its value is distributed among all the coparceners or may be distributed by agreement by adjusting the corresponding values of the properties. While distributing such properties, due care must be taken to maintain equality in share of each coparcener.
- Dwelling house: If we consider the ancient view, the dwelling house should not partitioned. But according to the modern perspective, the law does not consider this ancient rule as sacrosanct. A partition of a dwelling house can be done through a decree by court. The court will put all its effort to make such an arrangement so that all the coparceners are equally benefited. If the court fails to make equitable agreement, the dwelling house will be sold and the value will be divided equally among all the coparceners.
- Family shrines, temples and idols: These are the kinds of properties which can neither be divided nor sold. For such properties, the courts have adopted the following systems:
- The possession of idols, temples or shrines may be given to the senior most coparcener or a junior coparcener if he seems to be more religious or suitable amongst all others with a liberty to other coparceners to access them for the purpose of worship at all reasonable times.
- The coparceners may hold them turn wise for a period in proportion to their share in the property.
- Staircases, wells, etc: The species of property like staircase, wells, courtyards, tanks, roads, etc. are incapable of division and valuation by their nature of existence. For such properties, an arrangement has to be formulated so that they remain in common use of all coparceners.
How does Partition come into effect?
Effecting a partition simply means effecting of severance of joint status of a coparcener in a Hindu joint family. There are two essentials of a partition:
- The physical division of property by metes and bounds.
- The severance of the status of the joint family property.
As far as effecting a partition is concerned, the second essential plays a very significant role. The physical division of the property is a decision of an individual and comes into effect by expressing an unequivocal desire to get separate from the joint family property. The severance of the joint status is the resultant of the individual’s decision which may be arrived at either by private agreement of the parties or if not then, by the interference of the court.
Essentials of a valid Partition
A coparcener has a right to demand partition any time without the consent of the other coparceners. It is immaterial whether the other coparceners want to remain united with him or not. A demand, in order to bring the severance of the joint status must comprise of the following three things:
- Formation of an intention to separate from the joint family.
- A clear, unequivocal and unilateral declaration of the intention to separate.
- The intention must be communicated to the Karta or to other coparceners in his absence.
Now these three essentials are discussed in detail below:
- Formation of Intention: It is important that a coparcener must form an intention to partition. His thoughts must be clear that he no longer believes in the community interest. There must not be any doubt and ambiguity regarding his intention to partition and get separated from the Hindu joint family property.
- Declaration of Intention: Once an intention to get separated is formed, it must be followed by an unequivocal, definite and unilateral declaration of partition from the family and enjoy his share in severalty. The severance of status is done by the declaration because severance is a particular state of mind and the declaration is a mere manifestation of that mental state. It is not compulsory that a declaration has to be accompanied by any explanation or justification. No one is empowered to go into the reasons which necessitated the coparcener to take such a deep step not even the court.
- Communication of Intention: Declaration explicitly means that it should be brought to the knowledge of a person affected thereby. An uncommunicated declaration of intention can amount to a desire to partition but not severance of the status. The member who seeks his separation from the other members must make his intention known to the other members from whom he wants to be separated. Communication is a prerequisite to effect partition.
- Means of Communication: The process of manifestation of one’s intention varies with the facts and circumstances of each case. It is not necessary that there should be formal despatch or receipt by other members of the family of the communication announcing the intention to divide on the part of one member of the joint family. What matters the most is that the declaration must reach to the person or persons affected by such partition.
- To whom the intention be communicated: The communication must be made to all the persons who are the part of coparcenary property including the Karta. It is not so that communication only made to Karta is sufficient. Every coparcener must get the notice of declaration separately and whether he accepts it or not is not important. Even if he refuses to accept, the communication is enough and effective.
In case of a minor coparcener, the notice made to Karta is enough as he is the legal representative of the minor coparcener.
- Effective date of severance of joint status: The difficult question with regard to communication arises is when should the communication of intention be deemed effective. There could be two possibilities in this situation. Either it could be effective from the date of transmission of the communication or from the date on which it reaches the coparceners. It is concluded from various judicial interpretations that the partition takes effect from the date when the intention is framed and expresses and not from the date it reaches to the knowledge of all the coparceners.
Various Modes of Partition
Partition leads to division of status. The severance in the joint status could be brought about in the following ways:
- Partition by father during his lifetime: Under the Hindu law, a special power is given to father in the exercise of which he can bring out partition on his own if the coparcenary consists of the father and his sons only. He can separate his sons from himself and also separate the sons from one another without the consent of the sons. This power of father is a part of the ‘patria potestas’ (paternal power) that was recognized by Hindu law.
- Partition by Individual Coparceners through unilateral declaration: The unilateral declaration of intention of partition by a coparcener is sufficient for the severance of status provided that the communication of the intention of partition must be made clearly. The consent of the other coparceners is not necessary.
- Partition by Agreement: A partition may also come into effect between the coparceners through an agreement. An agreement constituting partition must define the share of each coparcener with an intention of immediate separation. The court does not recognize any partition until the agreement of partition comes into effect. Partition can be effected either orally or in writing. It is not necessary that a written agreement has to be registered if it has a record of what had happened. However, if the properties are divided by the agreement, registration is mandatory.
- Partition by Conduct: When the coparceners of the family actually divide the family property by metes and bounds and each member enjoys the possession of the share allotted to him separately, the partition is said to take place by conduct. The conduct for severance of status varies from case to case.
- Partition by Suits: 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 suit in the court. Both a minor and a major coparcener may approach the court for this purpose.
- Partition by Notice: The essential element of partition is the intention to separate which must be communicated to other coparceners. Therefore, partition may come into effect even by a notice to the coparceners, whether accompanied by a suit or not.
- 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 Conversion: Conversion of a coparcener to a non-hindu religion automatically leads to the severance of status of that coparcener from the joint family. He loses his membership of the coparcenary but this doesn’t affect the status of other coparceners inter se.
The same result follows in case a coparcener marries a non-hindu under the Special Marriage Act, 1954.
- Partition by Will: Before the enactment of the Hindu Succession Act, 1956, the undivided interest of a coparcener in the joint family property devolved on his death by the rule of survivorship. So, a coparcener cannot make an effective will for his coparcenary interest.
But, Section 30 of the Hindu Succession Act, 1956, confers the right to coparcener to make testamentary disposition of his interest in the joint family property. This right can be used for separation also. Therefore, a coparcener can make a valid will to separate his interest from the joint family property and to be donated to a hospital, school, any other person, etc.
Right to Demand Partition
As a general rule, every coparcener of a Hindu joint family is entitled to demand partition of the coparcenary/ Hindu joint family property. However, every coparcener has not an unqualified and unrestricted right to enforce partition. The ambit of their right to effect partition can be studied under the following heads:
- Special power of father: Under the Mitakshara law, a Hindu father can affect a partition between himself and his sons and also among his sons. Despite the express dissent of his sons, he can exercise this right. The consent of sons is not compulsory. The father is authorised to divide the title as well as the corpus of the property by metes and bounds. This right of father has three restrictions on it-
- Father can divide his property only during his life time but not by will after his death. A testamentary partition can only take place with the consent of all the coparceners.
- A father cannot effect partial partition among his sons without their consent.
- The allotment of the property must be equal and fair, He must treat every son equally by giving equal share to everyone and should not favour one against the other. If the sons find that the partition was not just and fair, they may challenge such partition in the court and ask to reopening the partition for the purpose of readjusting shares.
- 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.
- Daughters: Under the Hindu Succession (Amendment) Act, 2005, it has been admitted that a daughter can also be a coparcener in the Mitakshara Coparcenary like a son and has all the rights that any coparcener has. Therefore, a daughter has also acquired the right to claim partition in the same way as if she was a son.
- Son in the womb: A son who is in the womb at the time of partition and born alive thereafter, is also entitled to a share, though he was not in existence at the time of Partition. Under Hindu law, a child in the womb is considered to be as good as in existence for this purpose. A separate share has to be allotted to him. If his share is not kept, he has the right to ask for the reopening of the partition so that his share may be allotted to him thereby.
- Son conceived and born after partition: The right of a son who is conceived and born after the partition depend upon whether the father has taken a share for himself at the time of partition from his sons. Where the father has taken no share for himself at the time of partition , the son conceived as well as born after partition can demand the reopening of the partition and obtain his share. In such a case not only the property which existed at the time of the earlier partition is subject to the repartition but also the property came into existence thereafter.
Where the father has reserved share for himself, a son who is begotten as well as born after Partition, is not entitled to have a partitioned reopened, but in lieu thereof he is entitled after the father’s death, to inherit not only the share allotted to the father on partition but the whole separate property of the father, whether acquired by him before or after partition, to the entire exclusion of the separate sons.
- Adopted Son: The inequality between a natural son and an adopted son on the issue of their shares on the partition of the coparcenary property has been abolished by the Hindu Adoption and Maintenance [HAMA] Act, 1956. Adopted son is now entitled to equal share and has the right to demand partition just like a natural born child.
- Son born of a void or voidable marriage: A child born of a void or voidable marriage, is a legitimate child of the parents and therefore, statutorily entitled to inherit their separate property. At the same time, he cannot inherit property from any other relative of parents. Due to statutory legitimacy, he can be treated as a coparcener only for the properties held by the father. He is not entitled to seek partition during the lifetime of the putative father. Moreover, he can seek partition only after the death of the father. It can be concluded that the rights of a son born of a void or voidable marriage are better than those of an illegitimate child, but inferior to those of a child born of a valid marriage.
- Illegitimate son: The rights of an illegitimate son are the subject of special rules of Mitakshara. The rules differ from class to class. In the higher three classes, no illegitimate child is entitled to the share in the coparcenary property. Although, he cannot ask for partition but still he is entitled to maintenance as long as he lives, in recognition of his status as a member of his father’s family. This rule is not followed by Shudras.
- Minor Coparcener: The existence of a minor coparcener is not a bar to partition and a minor has equal rights to claim partition in the coparcenary property just like a major coparcener. The only condition that applies in the case of a minor is that the suit for partition has to be filed by a guardian or next friend on behalf of the minor. A suit filed by a major coparcener itself brings partition but this is not mandatory in the case of a minor coparcener. The court will pass a decree for partition only if it finds that the partition is in the best interests of the minor and will benefit him. If the court finds it to be against the welfare of the minor, it will dismiss such suit.
- Disqualified and Absent Coparcener: Any coparcener who is disqualified from inheriting under any defect are equally disentitled to a share on partition.
If any coparcener is absent at the time of partition due to a strong reason and his share is not kept, he is entitled, on his reappearance to demand partition through reopening.
People who are entitled to a share in partition
The general rule is that any non-coparcener members of a joint family, whether male or female is not entitled to get a share in the joint family property on partition. However, this rule goes with certain exceptions under the Mitakshara law. The Mitakshara law safeguards and protects the rights of women of the family including wives, widows, mothers and daughters. These members of the Hindu Joint family have no right to demand partition but if anyhow partition takes place, they are entitled to their respective shares. For these females, the entitlement of shares arises only if there is severance of status of the joint family accompanied by a partition by metes and bounds. If she is not allotted with her share at the time of partition, she has the right to reopen the partition to claim her share.
- Father’s wife: A wife does not have a right to demand partition in a Hndu joint family as she is not recognized as a coparcener. But if partition takes place between her husband and sons, she is entitled to get a share equal to that of a son. If a father was married before the enactment of the Hindu Marriage Act, 1955, and has more than one wife, each wife is entitled to a separate share equal to that of a son. However, if the father dies before partition, the son will take the entire property under the doctrine of survivorship and the wife/wives will not get any share.
- Widowed mother: After the death of the father, if a partition takes place between the brothers, their widowed mother will get the share equal to the share of a brother. Widowed mother includes the step mother too if she was married to the father prior to the HMA, 1955.
- Paternal Widowed Grandmother: She has no right to demand partition but if a partition is taking place between her grandsons, she is entitled to get a share equal to that of a grandson. Grandmother includes step grandmother too.
Besides these three females, no one else is entitled to receive a share on partition. Daughter since, is considered as a coparcener, has the right to demand partition after the amendment of the legislation, thus, is not entitled to get share.
Minor’s Suit for Partition
According to the rule of Hindu law, if a minor has an undivided share in the joint family property, the karta of the joint family is the guardian of that interest of the minor. But, where the right to demand partition comes into consideration, there is no difference between the rights of a major and a minor coparcener in this regard. Under a joint family, it would not be wrong to say that the karta of the joint family has an absolute right to manage the family and represent the minors of the family wherever required. But this right of karta is valid till the family is joint.
Where there is severance in the joint status of the family, the karta has no more right to act on behalf of the minor. Even a partition entered into by a person other than the father or mother on the behalf of the minor is valid. While considering a minor’s right what matters the most is that the act must be done in the best interest and benefit of the minor. The rules for major and minor coparceners may differ because the law has a soft corner where the minor coparcener’s rights come into play.
It must be clear now that a minor coparcener can also make a valid partition. Therefore, minority is not a bar to partition. If a partition is made with bona fide intention and good faith, it is binding upon the minor as well. But in case, if a minor is treated biasly and unfairly, partition can be reopened on his demand.
A minor has the right to claim partition just like an adult coparcener by filing a suit through his guardian or next friend. The court plays a very crucial role when it comes to minor’s right. Unlike a suit filed by a major coparcener, the court is not bound to pass a decree for partition. If it found that the partition is not beneficial to the minor, the court may dismiss the suit. Thus, it is not obligatory that the court will definitely execute a partition in all the cases where a suit of partition on behalf of minor coparcener is instituted. It is the duty of the court to protect the rights and interests of a minor coparcener to avoid any kind of injustice and prejudices treatment with him.
Death of a minor coparcener before suit for partition is decided: The Supreme Court has settled in a well-defined and distinctive terms that the death of a minor coparcener while the partition suit is pending before the court will not lead to abatement of the suit. A leading case law in this regard has discussed below:
Facts: In this case, the minor and his mother was thrown out of the house and the father and two other sons (from first wife) was selling the joint family property including the shares of the minor and were purchasing their new individual property.
The maternal grandfather of the minor of age 2.5 years filed a suit on behalf of the minor for partition. The petition was admitted by the court but ,meanwhile the minor died. His mother was recognised as his legal representative and transposed as the plaintiff.
Held: The court held that minor’s suit for partition can be filed by next friend only if it is beneficial for the minor. If the minor dies meanwhile, the saame can be continued by legal representative of the minor. The suit must be in the good interest and welfare of the minor.
Therefore, the suit was maintainable even after the death of the minor.
Reopening of Partition
As per the general rule, once a partition is made it cannot be reopened because a share can be divided only once. However, there are certain exceptions to this general rule. Following are the cases where partition can be reopened:
- Re-adjustment of Assets: It may be possible that during partition there has been a bona fide mistake as to the property division which may cause loss to a coparcener. In such a case the coparcener claims to be reimbursed for the loss of the property. All the coparceners have to bear the burden of loss. Readjustment after recognizing the mistakes is not barred by law.
- Use of malpractice: A partition effected among the coparceners of the Hindu joint family with their consent and by volition cannot be reopened. If it is proved that the consent of the coparceners is obtained by any malpractice like fraud, coercion, undue influence, misrepresentation etc., the partition is eligible to be reopened. However, the court requires a strict proof of facts in such cases. If the facts clearly shows that the partition was done with proper deliberations, the court doesn’t entertain a plea to reopen the partition in such circumstances.
- Son in the womb: A son who is in the mother’s womb at the time of partition is entitled to a share in the joint family property as if he is in existence at the time of partition, though born after partition. If no such share is reserved for him at the time of partition, the partition can be reopened to allot his share to him.
- Disqualified or Absentee Coparcener: A disqualified coparcener who recovers from his disqualification after the partition, can get the partition reopened.
If a coparcener is absent at the time of the partition for a valid reason and no share is allotted to him, he can get the partition reopened.
- Injustice to Minor Coparcener: If a partition among the coparceners of the Hindu joint family consisting of minor coparceners is proved to be unfair and unjust and is inimical to the interests of minors, such a partition can be reopened.
Meaning and Essential elements of Reunion
The word ‘reunion’ is self- explanatory. It simply means establishing the joint status of a family again which was lost due to partition amongst the coparceners. After a partition takes place in a Hindu joint family, reunion is the only way left through which the joint status of the family as before the partition can be regained.
Reunion can take place among those members who originally had the joint status in the property as a coparcener. In other words, only those persons can reunite who were the parties to the original partition.
While reuniting, the intention of the parties is an essential factor. To constitute a reunion, there must be an intention of the parties to reunite in estate and interest. The intention should be aiming towards reversing the present status to the former status of joint tenancy. Absence of intention will not lead to reunion. Also, mere living together without any intention of reunion, will also not considered as a reunion. The intention must be communicated clearly and unequivocally. The act of the reuniting must be unilateral i.e. each coparcener must give his consent for reunion. It can come into effect only on mutual agreement of all the parties whereby all the members agree to regain their joint status and thus, forming a Hindu joint family again.
It is not necessary to have any formal agreement of reunion. It may be oral or written which is not mandatory to be registered or by the conduct of the parties.
Effect of Reunion
The first effect of reunion is to remit the reunited members to their former status as members of a Hindu joint family. Secondly, through reunion, the property in the hands of the separate members is thrown back to the pool of Hindu joint family property. The members regain the status of undivided coparcerners. Therefore, the reunion restores the joint family to its former status and position so that there must not exist any difference in any essential particular from the status of family before partition.
It is a well established law that a Hindu family is presumed to be joint until the contrary is proved. But as soon as the partition is proved , the presumption is that the family is divided and will remain the same. Reunion of partition is a rare event which barely takes place in cases. Therefore, when a reunion is pleaded before any court, it must be strictly proved that partition took place in the joint family. The evidence must be clear and consistent. Any kind of ambiguity in the conduct of the parties or in the evidence will not sustain a plea of reunion.
Therefore, it can be concluded that partition is a tool which performs the function of bringing a Hindu joint family to its end. Through the mechanism of partition, a joint family property becomes the self-acquired property of each coparcener as per their shares. Partition can be done either by dividing the property by metes and bounds or by the severance of the joint status or by both. Precisely, the partition takes place in actual sense only when the joint status of a Hindu Undivided Family comes to an end.
- AIR 1958 SC 1042
- Modern Hindu Law by Paras Diwan