Partition of Property Under Hindu Law

Partition Of Property Under Hindu Law, is an act by which a coparcener severs his relations with joint family and loses his status of coparcener and becomes an independent individual from the links of joint family. In partition joint family ceases to be joint, and nuclear families or different joint fan come into existence. For instance, if a partition takes place in a joint family consisting of A and coparcener According to the Supreme Court, the partition may be partial or total. Partition could be partial with respect to the members of the joint family or joint family property. When a partition takes place, the presumption is about the total partition. But where some members contend that the partition was partial with respect to members or property, the onus is on them to prove it.

Meaning Of Partition

Partition means bringing the joint status to an end. On partition his two sons, B and C, there will come into existed three separate families of A, B and C. Or, suppose, a joint family consists three brothers, A, B and C and their three sons, AS, BS and CS. If brothers partition, their sons not partitioning from them, there will come into existence three joint families, consisting of A and his son AS, B and his son BS, and C and his son CS.

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-

1. The Mitakshara School- derived from the name of a commentary written by Vijnaneswara, on the Yajnavalkya Smriti.
2. The Dayabhaga School- derived from a similarly named text written by Jimutavahana.

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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.

While Under Dayabhaga law, partition means- only division of property by metes and bounds.

The Partition As A Subject Matter

• subject-matter of partition, e., the property to be divided;
• persons who have a right to partition, and who are entitled to a share on partition;
• how partition is effected and mode of partition;
• reopening of partition; and

SUBJECT MATTER

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-

1. Property can be enjoyed by coparceners jointly or in turns.
2. One of the coparceners may keep the property and the value of it may be divided among other coparceners as compensation.
3. 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.

Property Liable For Partition

It is only the coparcenary property which is subject to the partition. The separate property is not liable to partition at all, as it belongs absolutely to the owner thereof.

Secondly, the property to which the law of primogeniture applies, cannot be divided, e.g., a Raj. Nor can family idols and place of worship can be divided. Similarly, the following properties are not liable to partition:

 Impartible estate i.e., property which descends to one member only, either by custom or under any provision of law or by terms of grant.

 Property indivisible by nature, e.g., ponds, staircase, passage

 Family idols and relies which are object of warship

 Separate property of a member

 The places of worship and sacrifice or the property which has been dedicated to religious and charitable purposes.

 The well and the rights to draw water from the well

 The ornaments and the dress materials given to the wives of the coparceners

Persons Who Are Entitled To Demand Partition

Every coparcener has a right of partition and entitle for share in partition.

1. The father — has not merely a right to partition between himself and his sons but he has also the power to affect a partition among the sons inter Se, this seems to be the last survival of father’s absolute powers. The Mitakshara expressly confers this power on the father in respect of not only father’s separate property (every person has the power to distribute or give away one’s own property as one wishes to do) but also in respect of joint family property.

2. Son, grandson and great-grandson.—Under the Dayabhaga school, there is no coparcenary consisting of the father and his lineal male descendants and, therefore, sons, grandsons or great-grandsons have no right to partition. On the other hand, under the Mitakshara school, son, son’s son and son’s son’s son have a right to partition.  If the father is not joint with anyone of the aforesaid relations, sons have a right of partition against their father. 

3. Son born after partition.—the after born son could get the share of his father alone. The Mitakshara reconciled the conflict by holding that the latter texts lay down the general rule, while the former texts lay down a particular rule applicable to a son in the womb at the time of the partition.

4. Son conceived at the time of partition but born after partition.—The Hindu law has for many purposes equated person in the womb to a person in existence. The texts lay down that if the pregnancy is known, the partition should be postponed till the child is born. But if the coparceners do not agree to this, then a share equal to the share of a son should be reserved for the child in the womb. If the child is born a son, he takes it, but if it is born a female, a marriage provision should be made for her out of the share reserved and the surplus, if any, should be distributed among the coparceners. In case no share is reserved for the son in the womb, he can, after his birth, demand reopening of the partition.

5. Son begotten and born after partition.—In this case, the Mitakshara’s general rule applies. Two situations may arise (a) when the father has taken his share in a partition, and (b) when the father has not taken any share.

• When the father has taken or reserved a share for himself, the after born son becomes a coparcener with his father.
• When the father has not taken or reserved a share for himself, the after-born son has a right to get the partition re-opened and get the estate redistributed as it then stood.

6. Adopted son.— The Hindu Adoptions and Maintenance Act, 1956, has codified and reformed Hindu law of adoption. Section 12 of the Act lays down that “an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes….” It is submitted that this provision could be marshalled to establish equality between the adopted son and the aurasa son in partition also.

7. Illegitimate son,—Illegitimate sons fall under two categories : (a) The Dasiputra, or a son born to a concubine (avarudha dasi) exclusively and permanently kept by a Hindu, and (b) an illegitimate son born of a woman who is not a dasi. Their position is as under.

(1) An illegitimate son of both categories is not entitled to partition or to a share on partition among the first three classes as he is not a coparcener. He is entitled to maintenance .

Persons Who have a Right to Partition and Who are Entitled to a Share on Partition: –After the Amendment Act of 2005 a daughter since would be a coparcener shall have a right to ask for partition.

As a general rule, both under the Mitakshara and the Dayabhaga schools, every coparcener has a right to partition and every coparcener is entitled to a share on partition. Apart from the coparceners, no one else has a right to partition. No female except the daughter has a right to partition, but, if partition takes place, there are certain females who are entitled to a share. These females are Father’s wife, mother and grandmother

Modes Of Partition of Property

Partition i.e. severance of joint status of a family can be established in the following ways-

1. expression of intention– one member of the joint family can express his intention to partition, even though no actual partition takes place.
2. by Notice
3. by Will
4. by agreement– such severance of status takes place from the date of signing of the agreement.
5. 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.
6. by father– the karat of the family if expresses his wish to seek partition, such partition comes into existence.
7. 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.
8. 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.
9. 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 coparceners 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. Generally, partition once made is irrevocable, however, the same can be reopened in case of following circumstances –

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Conclusion

Partition is a concept under Hindu law and is regulated by mainly two schools of thought, i.e. MIT Akshara 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. Depending upon the circumstances.

Author: This article was written by Ishmeet Kaur, B.A. LLB, student of Government Mohindra Collage, Patiala.

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