Introduction
Partition means the end of joint status of Hindu undivided family. Partition of property bestows separate conferment of status and rights to the coparceners under Hindu law. Coparcener is a person who by birth has ancestral rights over the property under a Hindu undivided family. Shares acquired by each coparcener are subject to change with additions in the family. Earlier only Male members were considered as coparceners and only they had the right to partition but after the amendment of 2005 in the Hindu Succession Act, women were also been accorded the title of coparcener with rights to have a separate share in a property for them. After partition coparcener becomes a separate individual and the status of the Hindu undivided family comes to an end. Partition is the intentional severance of coparcenary property by members of a joint family.[1]The partition leads to the certainty and stability in the status of all the fluctuating and unstable rights over the property.
Meaning of Partition
According to Webster’s Dictionary, the word “partition” means – “a separation by a court of real estate owned jointly into two or more separately owned parcels, so that each of the former joint owners may enjoy having his or her own share in the estate”. In common parlance, it can be defined as the division of real property that is held jointly between two or more persons into individual owned interests.[2]
It is the severance of joint status, members become the sole owner of his/her share and can transfer and enjoy it as per once own choice. Partition is the combination of the deliverance of property shares and acquisition of these shares by coparceners respectively.
Partition or no partition is the sole matter of the intention. The mere ascertainment of the shares of the remaining members on the separation of one of them does not per se lead to the disruption of the status of coparceners without present intention to divide in status[3]. Thus an unmistakable declaration by a member of his intention to be divided in status to effect a severance is required. The intention to the partition of the property should be genuine and not sham or pretentious under Hindu law.
Concept of Partition in Different School of Thoughts
The concept of partition of property under the two major school of thoughts of Hindu law are as follows –
1. Mitakshara: right over property is created by birth and devolution is by survivorship. Once the shares are defined the partition is complete, it is not necessary that the property should be divided by metes and bounds. Partition thus signifies an allotment of specific portions of property among co-sharer. Unity of ownership is the essence. Rights and shares fluctuate with births and deaths of co-parceners. Earlier women do not have the right to share in the partitioned property but after the amendment in 2005 women are also been included.
2. Dayabhaga: each coparcener has their specific shares in the joint property of which he is the absolute owner. The property is divided by metes and bound. The undivided co-sharers hold on to the joint property as tenants-in-common in well define shares. The unity of possession is the essence. Both males and females have the right to separate share in the property.
Provisions To Be Made On Partition of Property
At the time of partition, provisions regarding the following matters have to be made first:
1. Debts: provisions for joint family debts payable out of the joint family property and personal debts of Karta not incurred by immoral means have to be made.
2. Marriage expenses: provisions should be made for expenses of unmarried daughters and sisters or for the daughters of other coparceners.
3. Ceremony: provisions for thread ceremony and other important ceremonies of the members of the family.
4. Maintenance: provisions of maintenance for classes who are not coparceners but are subject to the maintenance out of the joint family property and include disqualified coparceners, unmarried daughters or sisters, lunatics by birth.
At the time of partition, no party has the right to look back and claim relief against past inequalities and the enjoyment of members.
Subject Matter Of The Partition
Under Hindu law prima facie coparcenary property, whether movable or immovable only leads to the creation of partition rights. Self-acquired property or separate property that belongs to the individual owner absolutely is subject to the will of the owner. Property acquired from joint family property, business, gains out of common labour by members are also subject to common execution.
However, there are some exceptions to the partition of property under Hindu law namely;
1. Property that cannot be divided. It is physically not possible to divide it. In such cases property may be sold and its value is distributed[4][5].
As per Manu; “ property that is by nature indivisible, like a dress, a vehicle, ornaments, cooked food, water, property destined for pious use and sacrifices and a pasture ground, they declare to be indivisible”.
2. Where it is unreasonable or dangerous to divide it, idols, family shines, place of worship can’t be divided nether sold as they have emotional attachments with them. It can be used in turns or can be given to the senior-most coparcener with the access of usage to all.
3. Separate property or self-acquired property of a member and is subject to the will of that person.
Persons Entitled To Partition of Property under Hindu law
Every coparcener has the right to partition of and is entitled to share on the partition. Under Hindu law right of partition is restricted to 3 degrees that include father, grandfather and great grand-father. All who have direct lineal descendent of common ancestors up to 3 degrees, to the common male ancestor constitutes coparcenary. And all such persons or members of the joint family are entitled to share ancestral property.
1. Father
Where coparcenary consists of a father and his sons, he has a right to bring about partition. He is competent to effect such partitions. This power is part of “Patria Potestas” recognized by Hindu law. To execute this right father does not require the consent of his sons[6] and it is binding on the sons as well.
Father can divide not only the property but also the corpus of the property by meets and bounds. However such power should be executed in good faith and interest of the family. Unequal or favoritism may lead to reopen of the partition. Father can’t exercise this power by “will” without the consent of his sons.
2. Son, grandson and great-grandson
All of them have a right to partition, but in Bombay School, the son has no right to partition without consent where partition has to be asked from grandfather.
3. Born after partition
A child who was in his mother’s womb at the time of the partition is treated equally and is entitled to share in the property. he has to be treated as a living person irrespective of gender. In case of unequal shares, he is entitled to reopen the partition after attaining majority.
Where son born as well begotten after the partition, he is entitled to share of his father at the time of partition and also his separate property to the exclusion of the separate sons and is not entitled to reopen the partition.
4. Adopted sons
After valid adoption, he becomes a member of the family and is entitled to the same share and is to be treated like a natural-born. After Hindu Adoption and Maintenance Act, 1956 there is no difference left between the adopted child and natural-born and hence can demand equal share.
5. Alienee
Where coparcener has the right to give his interest and such interest is bought by alienee via court sale or private sale, such person can demand shares as he is now in the shoes of a coparcener.
6. Female sharers
It includes three types of females namely, 1) the wife, 2) widowed mother and 3) great grandmother. Earlier they cannot demand partition however have the right to share when the property is divided. Where suit is dismissed mother cannot demand partition. After the amendment of 2005 in the Hindu succession act, daughters also have the same right of partition as that of a male.
In Pachi Krishnamma v Kumaram [7]daughter claimed her share as equal to the son during partition but failed to prove his customs saying equal share to daughters as sons. But after the amendment has equal rights as that of son.
In case of Danamma Suman Surpur and Anr v Amar and ors[8] the Hon’ble Supreme Court held that daughters have equal rights in the ancestral property even if they were born before enactment of the Hindu Succession Act.
Partial Partition
Generally, under the partition, each family member gets a separate share and acquires a separate part. However, this general rule is subject to certain qualifications, sometimes the suit for partition can be for part of the whole property
1. In circumstances like lease or mortgage general partition of property is not possible and that property will be left without partition and rest will be subject to partial partition.
2. Where different part of property is situated in and out of India.
3. Where property is at joint ownership with strangers who cannot be made subject to the Family partition.
4. Where through mistake or fraud some property if missed out during the previous partition.
In these cases suit for partial partition that is partition in respect of available property only will lie.
Where the joint family has more than one property, one property out of them can be divided partially. It leads to severance in respect of part of the joint property while retaining the status of joint family. It is the partial partition to the property. Whereas one person’s family wants to separate from the unit it is called a partial partition as to persons.
Different Modes Of Partition of Property Under Hindu Law
A partition of property may be effected in many ways under Hindu law, namely by agreement, by will, by notice, by arbitration, by conversion etc. intention is the essence of the partition. Intimation by coparcener about his unequivocal intentions brings into his right to obtain his share whether or not others agree to separation and there is severance in the family[9]. The intention must be communicated to be effective. It can be in different ways either explicit or by the conductor of other members of the family.
1. Partition By Father:
Where coparcenary consists of a father and his sons only, he has a right to affect the partition without the consent of the sons. It is binding on the sons by virtue of the power conferred to father. However such partition must be in good faith.
2. Partition By Will:
Coparcener through a will can intimate his desire to separate from a joint family. He can make will and declare his desire to separate. He may assert his right to separate. Mitakshara coparcener after the addition of Section 30 in the Hindu Succession Act, 1956 can now make a testamentary disposition of his shares in the joint property.
3. Partition By Agreement:
Partition where all coparceners jointly agree for the partition. It is an internal arrangement mostly done in order to secure the respect and dignity of the family and to be away from the litigation. Where the evidence on the face of it declares the intention to separate no evidence of the subsequent acts of the parties to alter the agreement is admissible.
Where the intention is clear, the subsequent conduct of parties is of no use. Once the agreement is entered severance of status begins. The coparceners can divide the property by mutual agreement. The partition cannot be recognized by the court if the agreement of partition is not acted upon. In case of Approver v Ram subha Iyer, the Privy Council has observed that,
“that no coparcener can claim any defined share in the property but where the coparceners enter into an agreement to the effect that every member will have a specific and defined share in future the joint status is affected and very coparcener acquires right to separate his specific share and use the same to exclusion of others.
4. Partition By Arbitration:
Coparceners may appoint arbitrators to lead and execute the partition. It may be affected with the help of a mediator or arbitrators who will divide the property. All the coparceners jointly appoint arbitrators, it shows common intention to get separated even where no award is given, intention does not vanish. The death of a coparcener does not affect the arbitration. He remains separate where the intention to part from the other coparceners is clear. The interest of the deceased coparcener shall descend as his separate property.
5. Partition By Conversion:
On conversion into Non-Hindu religion, a person is separated, no right of survivorship remains as no longer he remains a coparcener. From his joint family, he is not considered a coparcener. Person is entitled to get a share in the joint property after conversion as it stood at the date of his conversion. Reconversion does not necessarily bring back coparcenary relation in absence of subsequent act. Such conversion has no effect on the rights of other coparceners.
6. Partition By Suit:
It is the most common approach to severe rights. The partition can be demanded by filing a suit thereof in court. Father’s consent is not necessary, an eligible son during the father’s lifetime can file such a suit. A minor, as well as a major coparcener, has the right to go to court for this purpose.
a) In case of an adult, severance of status begins at the time of filing a suit thereof. The decree is required for allotting shares of the coparceners. In case of death, the legal representatives have the right to substitute for him to continue and obtain the decree for his share.
b) In the case of a minor, the suit is to be filed by his guardian or next friend. Here filing of the suit does not itself result in the partition and only after the decree is passed it is brought about. A court unlike in the case of an adult is not bound to pass a decree, it’s the discretion of the court and if it is satisfied that the partition is for benefit of the minor then the only a decree is passed.
7. Partition By special marriage:
When a person marries under the Special Marriage Act, 1954 he loses the membership of a joint family and it affects his severance from the joint family.
8. Partition By Notice:
In partition, the intention is the essential element. Such intention can be manifested by sending a registered notice to other coparceners. It must clearly state the intention to severe his rights in the joint family property and to have his share of the property. It might be followed by suit or not.
Effects Of Partition of Property Under Hindu Law
There are various effects on the parties to the partition namely;
1. It leads to end of coparcenary membership. Every coparcener acquires separate shares and individual rights over that share. A person becomes free from rights, duties and responsibilities towards the joint family that existed before the partition.
2. In case of death of separated member his shares devolves by heirship and not by survivorship.
3. Ancestral business losses its essence and become subject to the provision of the Partnership Act. Coparceners acquire different businesses and they no longer are liable to give an account of their business to a joint family.
4. Father as Karta of the family cannot extent limitation in regard to pre-partition debt by means of part payment or endorsement.
5. In the case of partial partition, members who severed their rights from the joint family lose the status that they enjoyed previously.
Re-Opening of Partition
Generally, partition once executed cannot be re-opened in normal circumstances, as laid down by Manu, “once partition is made, once is a damsel given in marriage, once does a man say, I give. These three are by good men done once for all and irrevocable”. however there are some exceptions to this rule and partition may be reopened on various grounds like a mistake, fraud, by son in the womb, disqualified coparcener, minor absentee etc. it must be noticed that mere readjustment of property does not amount to reopening of a partition.
1. Fraud: For partition proper communication and consent are necessary. When a fraudulent distribution is done for taking unfair advantage over another coparcener it is considered as fraud and in such case, the partition can be re-opened by coparceners who have knowledge of such fraud.
2. Child in the womb: Where the child is in the mother’s womb at the time of partition and later takes birth, he is entitled to separate share. A separate share has to be saved for him, if not then he can claim to reopen the partition.
In the case where the son is conceived and born after partition, where the father does not take a share of the partition from the property, he can reopen the partition.
3. Mistake: Where there is a bona fide mistake as to the property divisible, during the partition, some property is left or some property that does not belong to the family is wrongly allotted to a coparcener, which may cause loss to the coparcener as the title of the property is not perfect. The partition can be re-opened.
4. Minor: Where minor has been given no share and when a partition made during the minority of the applicant was unfair and prejudicial to his interest. He can re-open the partition. it was observed in case of sukhrani[10], that a partition which was unfair to minor can be reopened even there is no fraud or misrepresentation or undue influence. In such cases, the entire partition does not need to be opened but a separable part of the scheme of partition could be reopened. The gap of time between partition and the demand for its reopening is not material.[11]
5. Absentee: If any coparcener is absent during partition, separate shares are provided to him. Where no separate shares are provided at the time of partition to the absentee. He can reopen the partition.
6. Disqualified coparcener: Such coparceners are generally unentitled to share because of certain disqualifications. He may ask for reopening of partition when such disqualification ceases to exist.
7. Adopted son: As per section 12 of the Hindu Adoption and Maintenance Act, 1956 adopted son is at par with the natural-born and has the same rights. Hence the adopted son is entitled to re-open the partition.
Re-Union
Re-union means resumption and restoration of the status of the joint family that was lost after the partition. It is the only way of reestablishment and only those who were subject to the joint status originally before the partition can restore the status. Agreement to reunite can be expressed in writing or oral or implied by conduct as well.
Intention and communication are necessary for a reunion. Reunion pulls back the collective property that was severed by partition providing its original status. It is a rare occasion hence in case of pleading for reunion; evidence in regard to the partition has to be strictly proved. Under Mitakshara two conditions are followed namely;
- Reunion is done by, the same members as were there during partition and no new member is included.
- A person who was separated can reunite with his father, brother and paternal uncle only.
In case of Bhagwan Dayal v Reoti Devi 1961[12], it was observed by the Hon’ble Supreme Court that if separation is there by virtue of partition, members later can agree to reunite as a joint Hindu family.
It must be noticed that mere living together or carrying business does not suffice the requirement for a reunion. Under reunion, the minor has no right as he was not part of the partition. Where reunion is between two parties, one of which is a party to partition and the other is the son of the party to partition, it is valid and reunion can take place.
Conditions for reunion
1. To constitute reunion, the partition is the first step. Reunion arises only after partition and parties subject to the original partition can reassume their status of joint Hindu family.
2. Intention to reunite is necessary, where parties to the partition do not have any intention to reunite that reunion never happens.
3. Existence of similar property that was there at the time of partition is not required for purpose of reunion.
4. Every person must give their consent for a reunion. Such consent can be given in writing or oral or implied through conduct.
Effects of reunion
It brings back the original joint status of the family that was separated by a partition. It reverts backs them to their original status. There remains no difference between the coparcener by birth and by the union. In case of new property acquired by the reuniting member, a special rule will be applicable; it is not passed by survivorship to other reunited members but passes by succession to his heirs as per special rules. Reunion brings the original status of joint family.
Conclusion
Partition of property under Hindu law consists of various layers and is mainly regulated by two schools of thought are Mitakshara and Dayabhaga. It means severance of status of joint family and creation of separate and individual rights of each coparcener over their specific share. It leads to the end of all the fluctuating rights and creates stability in respect of rights over the property among coparceners. Under Hindu law, there are different diverse methods for affecting the partition like, by agreement, by will, by notice, by arbitration and many more, it provides sufficient ways to lead to partition. although the law provides various ways and covers almost every aspect considering the partition law, it has also been subject to change with the change in the society that is great and such changes should be included in the near future as well with the need of changing time.
[1] Raghavamma v chenchamma, AIR 1964 SC 136
[2] Black’s law dictionary, edition 7
[3] Bal Krishna v Ram Krishna, AIR 1931 PC 154
[5] Ahasannullah vs kali, ILR 1884 10 Cal 675
[6] Nirman Bahadur v Fateh Bahadur, ILR 1930 52 ALL 178
[7] Pachi Krishamma v Kumaram 1982 Ker 137
[8] Danamma @Suman Surpur & Anr V Amar & ors, 2018
[9] Girja Bai v. Sadashiv Dhundiraj, AIR 1916 PC 104:
[10] Sukhrani v Hari shanker, 1979 2 SCC 463
[11] Ratnam v. S.M. Kuppuswami, AIR 1976, SCR(1) 863
[12] Bhagwan Dayal v Reoti Devi, 1961
References
- M. Gandhi, Hindu Law, Edited by Sumeet Malik, 4th Edition, 2016
- C. Nagpal, Modern Hindu Law, 2nd Edition,2008
- The Hindu Adoption and Maintenance Act, 1956, Acts of Parliament,(India)
- The Hindu Succession Act, 1956, Acts of Parliament,(India)
- http://www.legalserviceindia.com/legal/article-3273-laws-regarding-partition-of-property-in-india.
- https://www.lawaudience.com/the-concept-of-partition-under-hindu-law-with-special-reference-to-dayabhaga-and-mitakshara-schools-of-hindu-law/
- http://familylaw.lawnotes16mrks.com/Family/Partition.html
- https://www.shareyouressays.com/knowledge/8-different-modes-of-partition-of-hindu-joint-family-properties/117719
This article has been written by Sonu Parmar, B.A.LLB (4th year) student at Army Institute of Law.
Also Read – What are the Documents Required to File a Partition Suit?
