Theoretical overview
Under Hindu law, it is not necessary that the partition should be executed by registered instrument. Even a family compromise would be sufficient to do so.
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.
Relevant sections –
1. Section 30 of the Hindu Succession Act, 1956, confers the right to the coparcener to make a 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.
2. Section 23 of the Hindu Succession Act, 1956: Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.
3. Section 23 of the Hindu Succession Act, 1956 after the 2005 Amendment: This section has been amended by the amending Act of 2005. As a result, the disabilities of female heirs were removed.
Important case laws –
1. Puttorangamma v. Rangamma (1968) – The court held that a suit for partition and separate possession of ancestral property by one of the coparceners is maintainable even if their father is joint with his broth and is not willing and does not consent to such a partition.
2.Smt.Kailashpati Devi vs. Smt. Bhuwaneshwari Devi – The Supreme Court held that the purchaser of joint family property from a member of a joint Hindu family may have the right to file a general suit for partition against the members of the joint family and that may be the proper remedy for him to adopt to effectuate his purchase
3. Pachi Krishnamma v. Kumaram (1982)- In this case, the daughter claimed is shared as equal to the son in the division of joint family property but she failed to prove her customs which says that a daughter can get an equal share as to the son. but after the amendment of 2005 in the Hindu succession act it gave the power that the daughter has a right to ask for partition and can claim an equal share as to the son in the partition of the joint family property.
Points to remember –
- Under Hindu law, it is not necessary that the partition should be executed by registered instrument.
- Expression of intention: one member of the joint family can express his intention to partition, even though no actual partition takes place.
- By father– the Karta of the family if expresses his wish to seek partition, such partition comes into existence.
- 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.