This article is written by Saloni Sharma, here she discusses the partition under Hindu Law.
Before the Hindu law was codified with the Hindu Succession Act of 1956, the ancient Schools of Hindu laws are believed to be of two types-
- The Mitakshara School- derived from the name of a commentary written by Vijnaneswara, on the Yajnavalkya Smriti.
- The Dayabhaga School- derived from a similarly named text written by Jimutavahana.
The Dayabhaga School of law is observed in Bengal and Assam. In all other parts of India, the Mitakshara School of law is observed. The Dayabhaga and The Mitakshara are the two schools of law that govern the law of succession of the Hindu Undivided Family under Indian Law.
Under the mitakshara school, partition means- Severance of status or interest and actual division of property in accordance with the shares by metes and bounds.
Under Dayabhaga law, partition means- only division of property by metes and bounds.
The subject matter of Partition
The joint family property is the subject to partition. The individual properties of coparceners in not subject to partition. If a joint family is in possession of a property held by it as the permanent lease, such property is also subject to partition among the coparceners. There are certain properties which are not available for partition like the staircase, cooked food, utensils, garden etc. because of their indivisible nature. Whereas, certain things which are divisible by nature or subject to adjustments among the coparceners, 3 methods of adjustments among the coparceners are available-
- Property can be enjoyed by coparceners jointly or in turns.
- One of the coparceners may keep the property and the value of it may be divided among other coparceners as compensation.
- Or the property may be sold and the proceeds from the same may be distributed among the coparceners.
Section 2 of the Partition Act, 1893 if in case of a suit for the partition where the division of property cannot be conveniently made, the court may direct that such a property may be sold and proceeds to be divided among the coparceners if it benefits all.
Liabilities attached to the property
Before the division of a joint family property at the time of partition, provisions should be made for the following liabilities attached to the property:
- Debts- provisions for outstanding debts of father or the karta taken on behalf, or for the purpose of the joint family should be made.
- Maintenance- there are some members of the hindu joint family who are not coparceners but entitled to be maintained out of the joint family property, they can be-
- Disqualified coparceners and their immediate dependents
- Mother, step-mother, grandmother and other females entitled to be maintained by the joint family property
- Unmarried sisters
- Widowed daughter of a deceased coparcener
- Marriage expenses of daughters- in case of the family which consists of father and sons as coparceners, provisions should be made for their unmarried daughter’s marriage. In case of a family consisting of brothers as coparcenary, provisions should be made for the marriage of their unmarried sisters before partition.
- Performance of certain ceremonies and rites- provisions should be made for the essential ceremonial expenses.
Persons who have a right to partition and share
Both under mitakshara and dayabhaga school, every coparcener has a right to partition and is entitled to share.
A minor coparcener can also ask for partition.
Every coparcener has a right to partition except in case of
- Unqualified coparcener
- Under Bombay school, sons cannot ask for partition against their father if the later is attached with his own father or collateral.
The following people can claim partition and are entitled to share in the partition-
- Father- under mitakshara school, the father not only has a right to partition but also has the power to effect partition among the sons. The father can also impose partial partition among the sons but he must act bona fide and not unfair to anyone. A suit to re-open, the partition can take place in case of partiality or mala fide partition by the father.
- Son, grandson, great-grandson -under mitakshara school, son, grandson and great grandson have a right to seek partition
- Son born after partition- According to Vishnu and Yajnavalkya the partition should be reopened to give the share to the son born after partition. However, Gautama, Manu, Nerada held a different view about the same.
Before the amendment of 2005, females couldn’t be the coparceners but some females like the mother, father’s wife and grandmother had the right to share at the time of partition.
Position of the minor coparcener
There is no distinction between a minor and a major coparcener under Hindu law with respect to their right in the joint family property. A suit for partition can be filed on behalf of the minor, by his/her guardian or next friend.
An unfair partition can be reopened by the minor on attaining majority.
A purchaser of coparcener’s interest in a court sale or private sale where coparcener has the power to give his interest in the property as consideration. Such a purchaser has a right to demand partition as he steps into the shoes of the coparcener.
If a coparcener is absent at the time of partition, it is implied that his share is to be kept separately. In case no share has been kept aside for him, he is entitled to get the partition reopened.
A partition may be called partial
- As to property- in case when the joint Hindu family owns more than one property in different places, and one of the properties is to be sold or divided, such partition is partial partition as to property.
- As to persons- in case where only one of the members of the joint hindu family wants to separate from the rest, such partition is partial partition as to persons.
Modes of Partition
Partition i.e. severance of joint status of a family can be established in the following ways-
- expression of intention- one member of the joint family can express his intention to partition, even though no actual partition takes place.
- by Notice
- by Will
- by agreement- such severance of status takes place from the date of signing of the agreement.
- by arbitration- if the members of the joint hindu family come into an agreement where they appoint arbitrators for themselves to divide the property, the partition comes into existence from the day the agreement was signed.
- by father- the karta of the family if expresses his wish to seek partition, such partition comes into existence.
- by suit- when a coparcener files a suit for partition, it amounts to an unequivocal intimation of an intention to sever and consequently, severance of status comes into existence from the date the suit was instituted.
- Conversion to another Religion- this leads to automatic severance of status, and it exists from the day of such conversion. However, he is entitled to receive a share from the property.
- Marriage under special marriage act- if a coparcener marries according to the provisions of special marriage act, 1954 severance of status occurs automatically from the date of marriage and the coparcener is entitled to receive his/her share from the property.
Reopening of partition
In a coparcenary, the coparceners hold the property as one common unit, partition means the fixing of the shares of each coparcener.the partition can be classified into two types-
- De jure Partition
This partition brings merely the severance of status or interest. This happens when the community of interest is broken, either at the instance of one of the coparcener or by the agreement of all the coparceners. In such a partition, the shares become clearly demarcated and are no longer fluctuating. However actual partition does not take place.
- De facto Partition
This is a partition by metes and bounds. This happens when the unity of possession is broken. It is only after the de facto partition, the respective shares of the coparceners become their exclusive shares. Here the actual division of shares takes place.
When can partition be reopened
Generally, partition once made is irrevocable, however, the same can be reopened in case of following circumstances –
- Mistake- a suit can be filed, if any of the joint family properties have been left out of partition by mistake they can be subjected to partition later.
- Fraud-The partition can be reopened if any of the coparceners had done any fraudulent or mala fide act. For example, if any of the property has not been made subject to partition fraudulently.
- Disqualified Coparcener-Due to some reasons, the disqualified coparcener might be underprivileged from his share of the property at the time of partition. In such a situation, he could get the partition removed after the disqualification is removed.
- Son in Womb-If a son is in the Womb at the time of partition, and no share was allotted to him, at the time of partition then later it can be reopened.
- Adopted Son-The adopted son is permitted to re-open the partition in case if the widow of a coparcener adopted a son after the partition. Such adoption under the Hindu Adoptions and Maintenance Act 1956 related back to the date of death of deceased husband & such adopted son can reopen partition.
- Absent Coparcener-Coparcener who is not present at the time of partition has a right to reopen the partition if he is absent at the time of partition and no share is allotted to him.
- Minor Coparcener-If a minor coparcener can claim for reopening the partition if he is not alloted his share at the time of partition, after attaining majority. If at the time of partition his interests are not be properly safeguarded then he can reopen the partition.
A partition can be reopened at the request of minor coparcener even if there is no fraud, misrepresentation or any undue influence.
Partition is a concept under Hindu law and is regulated by mainly two schools of thought, i.e. Mitakshara and Dayabhaga. Partition amongst a joint Hindu family means severance of status of jointness and unity of possession among the members of the family. The partition can take place by various methods like via agreement, arbitration, notice, will etc. Under Mitakshara school, the partition may take place by stripes or by branch, however under Dayabhaga school, partition takes place only after the death of the karta, the dayabhaga school follows no concept like coparcenary.