Meaning of partition
Partition under Hindu Law is a process by which a joint status is put to an end. In other words, partition means division of the joint family. It refers to both the property and status. Here the subject matter of partition under Hindu Law is coparcenary property. The ancient school of Hindu Law has two distinct branches. (i) Mitakshara School (ii) Dayabhaga School.
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According to Mitakshara Law
In the first place, it means “the adjustment into a specific share to deserve the right of difference member according to the whole family property.
In the second place, it means “the severance of the joint status with legal consequences resulting therefrom”. Thus partition under the Mitakshara may be defined as, “the crystallization of the fluctuating interest of the coparcenary into the specific share in the joint family estate.
Each co-owner is deemed to be the owner of the whole, in the same manner as other co-owner are also owners of the whole, the owner of the one without excluding the co ownership of the others. The doctrine is known as the doctrine of ownership in the whole estate.
According to Mayukha
Partition under Hindu Law is only a particular condition of the mind, where intention to separate constitutes partition. It is a process whereby a member of a joint or reunited family become separate and ceases to be a coparcener and they become a tenant in common.
The question whether the status of the family is altered or not is a question of intention of the parties to be inferred from the instruments they executed or the acts they have done to affect such division.
They must intend that their condition as coparceners shall cease. It is not sufficient that they should alter the mode of holding their property. They must alter or intend to alter their title to it; they must cease to be joint tenants and become tenants in common. No consent of the other members, not a decree of the Court or any other written is necessary for partition.
Element of Partition
Division of right and division of property
According to Lord Westburn, there are two stages in a Mitakshara partition. The first stage according to him is the ascertaining and fixing with an intention to become separate, the share to which each coparcener is entitled.
The second state is that of actually” making off” and assigning partition of the erstwhile joint estate to individual coparcener in the partition to the share of each. The first stage has been termed as “division of right” and the second stage is named as the “division of property”
Property which are liable to be partitioned
Only a coparcenary property is liable to partition under Hindu Law. Separate property is not liable to partition at all. It belongs absolutely to the owner thereof. In Purnabashi Mishra vs. Rajkumari Mishra AIR 1995. The Orissa High court held that property required subsequently even though with joint funds is to be regarded as a self-acquired property and it has to be excluded from the partition.
Similarly, in Kondirani vs. Krishna AIR 1995 S.C. 297, the Supreme Court has expressed its view that properties acquired after severance of the status of a joint family cannot be clubbed into joint family properties and therefore cannot be subject matter of partition.
The property to which the law primogeniture applies cannot be divided. Nor can family idols and places of worship be divided. Certain kinds of properties are by their nature indivisible e.g. animals, furniture, etc.
Their value may be determined and distributed among the ‘share or some of those properties may be enjoyed by coparceners jointly, or by turns. Under this category property like wills, idols and temple are included.
Thus, the following properties are not liable to partition under Hindu Law–
- Impossible property, e.g. property which descends to one member only either by custom, or under any provision of law.
- Property indivisible by nature
- Family idols and relics which are the object of worship.
- Separate property of member
Certain provision to be made
From the property liable to partition, provision must first be made for-
- Debts incurred for a joint family which are payable out of the joint family property.
- Personal debts of the father not incurred for illegal or immoral purposes.
- Maintenance of dependent female member are disqualified hairs.
- Marriage expenses of an unmarried daughter of the last male holder, but not of the collateral.
- Expenses for the funeral ceremony of the widow and mother of the last male holder.
Who can Claim Partition under Hindu Law
Partition of the joint Hindu family properly may take place at the instance of the following person-
Sun and grandsons
Under the Mitakshara Law, the right of the son, a grandson and a great-grandson, as well as every other adult male member of the coparcenary to demand a partition even against the consent of others has been fully settled.
The Bombay High Court in the full bench case has laid down that a son is not entitled to ask for a partition in the lifetime of his father without his consent when the father is not already separate from his own father or brothers or nephews.
An illegitimate son among the three regenerate classes, having no vested interest in the property, cannot demand a partition but he is entitled to maintenance out of his father’s estate.
The Madras and the Allahabad High Court have held the illegitimate son of sudra may enforce the partition against his legitimate brothers but not against his father or his father’s coparceners, as for instance, his father’s brother or their sons.
A widow though not a coparcener under Mitakshara Law, under the Hindu Women’s Right to Property Act, 1937, could have claimed a partition of the joint estate. She can claim partition under section 23 of the Hindu Succession Act. Mere partition of the estate between two widows does not destroy the right of supervisor ship of each to the properties allotted to the other.
In so far as a suit related to a dwelling house, a female hair or hairs are not entitled to have the dwelling house divided if there are male hairs who have not claimed division. This rule is available not only to the estate of the deceased coparcener, but also to the estate of female Hindu dying intestate.
After born sons
After born sons may be considered in two sets. Firstly, those born as well as begotten after the partition. Secondly, those burn after partition but begotten before it or those in their mother’s womb at the time of partition. A son in his mother’s bomb at the time of partition is treated, in point of law in existence and is entitled to reopen the partition to receive a share equal to that of his brothers.
In this case, a son born as well as begotten after the partition, if his father has taken a share for himself and separated from the other sons. Then the after born son is entitled to his father’s share at the partition and also his separate property to the exclusion of the separated suns and is not entitled to reopen the partition.
An alienee of coparceners interest, whatever such an alienation is valid, has also right to partition. In Sht. Kailashpati Devi vs. Sht Bhuvaneshwari Devi AIR 1984, Supreme Court held that the purchaser of the joint family property from a member of joint Hindu family may have the right to file a general suit for partition against the member of joint family, and they may be the proper remedy for him to adopt in effectuate his purchase.
An execution purchase of a member’s interest and purchaser of the same for the value in Bombay and Madras is entitled to demand partition in the rights of that member.
The term ‘female sharers’ include three types of female member of coparcenary, namely (i) Wife (ii) Widowed mother and (iii) Paternal grandmother.
These female sharers cannot demand a partition nor can they claim a share upon a mere severance of the joint family status. They are, however, entitled to get their share only when the joint family property is actually divided not on every partition but on same partition only.
Section 23 of the Hindu Succession Act, 1956, postpones the right of female heirs to claim partition of the dwelling house until male heirs choose to divide their respective share therein. But certain female heirs shall be entitled to the right of residence therein.
An adopted son is treated as a normal born son and therefore he would be entitled to demand a partition anytime after adoption. But where after a son has been adopted by the parents and a natural son is begotten to them subsequently, although the adopted son was to be treated at par with the natural son, yet the quantum of his share in the joint family property different in different school.
How to partition is affected
A partition is made in the following way
Partition by mere declaration to separate
Partition under the Metakshara Law is severance of joint status and as such, it is a matter of individual volition. All that is necessary to constitute partition is a define and unequivocal indication of his intention by the member of a joint family to separate himself from the joint family and enjoy his share of in severalty.
A division in the state takes place when the when he expressed his intention to become separate unequivocal and unambiguously and the filing a suit for partition is a clear expression of such intention
Partition by notice
A severance of joint status may be affected by serving a notice by a coparcener on the other coparceners, including his intention to separate and enjoy the property in severally or demanding partition of the property. The notice may be subsequently withdrawn with the consent of the other coparcener and if it is withdrawn, there will be no partition.
Partition by will
Partition may be affected by a coparcener by making a will connecting a clear and an unequivocal intimation to his coparceners of his desire to serve himself from the joint family or containing an ascertain of his right to separate.
Conversion of another religion
Conversion of a coparcener to any other religion operates as a partition of their joint Hindu status as between him and the other member of the family.
Marriage under Special Marriage Act, 1954
Marriage of a Hindu under the special marriage act cause severance between him and the other member of the family.
Partition by Arbitration
An agreement between the member of the joint family whereby they appoint an arbitrator to arbitrate and divide the property as partition from the date thereof. The mere fact has been made is no evidence of the remuneration of intention to separate.
Partition by agreement
An agreement between the member of a joint family to hold and enjoy the property in certain declined share as separate owner of operates as a partition, although the property itself has not been actually divided by metes and bound.
The two Ideas the severance of joint status and a “de facto” division of property must be kept distinct. As partition under the Mitakshara Law is affected on the Severance of joint status, the allotments of share may be done later.
Partition by father
The father may also cause the severance of the son without their consent. It is remnant of the ancient doctrine of “Patria Potestas”
Partition by suit
The institution of a suit for partition ipso facto effect severance of the joint family status and as such the mere institution of such a suit affects immediate severance of joint status.
Mode of partition or not exhaustive
The nine modes of partition given above are not exhaustive. There may be other circumstances as well which if indicate unequivocal intension of partition will be admissible.