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Hindu Law of Partition

June 24, 2019
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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:

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:

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:

  1. The physical division of property by metes and bounds.
  2. 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:

  1. Formation of an intention to separate from the joint family.
  2. A clear, unequivocal and unilateral declaration of the intention to separate.
  3. The intention must be communicated to the Karta or to other coparceners in his absence.

Now these three essentials are discussed in detail below:

In case of a minor coparcener, the notice made to Karta is enough as he is the legal representative of the minor coparcener.

Various Modes of Partition

Partition leads to division of status. The severance in the joint status could be brought about in the following ways:

The same result follows in case a coparcener marries a non-hindu under the Special Marriage Act, 1954.  

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.

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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:

  1. 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.
  2. A father cannot effect partial partition among his sons without their consent.
  3. 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.

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.

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.

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:

Case: Peda Subbayya v. Akkamma[1]

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:

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.

Reunion

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.

Conclusion

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.

Reference

  1. AIR 1958 SC 1042
  2. Modern Hindu Law by Paras Diwan
  3. https://www.legalbites.in/partition-hindu-law/

 

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