Table of Contents

Partition: Meaning, Division of Right and Division of Property

Table of Contents

Theoretical overview

Partition is the international severance of coparcenary property by members of a joint family. Partition means bringing the joint status to an end. The true test of partition of property is the intention of the members of family to become separate owners. Under mitakshara school of law, partition consist in defining the share of the coparceners in joint family. For partition no actual division is necessary. The movement share is defined, it becomes partition.

Partition, 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. An important consequence of such partition is that the share of coparcener or coparceners seeking partition which is till partition uncertain, fluctuating and unpredictable becomes specific and definite, as a result of partition, and thus allotted to the respective members.

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. The following properties are not liable to partition:

  1. 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.
  2. Property indivisible by nature, e.g., ponds, staircase, passage
  3. Family idols and relies which are object of warship
  4. Separate property of a member
  5. The places of worship and sacrifice or the property which has been dedicated to religious and charitable purposes.
  6. The well and the rights to draw water from the well
  7. The ornaments and the dress materials given to the wives of the coparceners
  8. The headship of a Math 

Allotment of share

Allotment of shares allotment of shares is done out of the assets available for partition after providing for marriage expenses maintenance father’s death and female expenses the residue of property will be divided among the personal according to the following rules: –  

  • division between a father and son– let’s say there are 4 coparceners namely the father- A, his three sons B,C &D. On partition, every one of them will get the equal share of ¼ as property is divided into 4 equal shares.
  • Division between brothers – let’s say there are 4 brothers who are A, B, C & D. On partition, each person will get the equal share of ¼ out of the coparcenary property.
  • When division take place among branches– let’s say, there are four three generations of a joint family. The first generation consist of a grandfather A, the second consists of his three sons namely B, C&D. the third generation consists of his grandsons. B has two sons; C has one son and D has two sons. On partition, first the property will be divided among the grandfather and his sons, through which they will get an equal share of  ¼ . then out of that ¼, B will divide shares amongst him and his two sons, which will be ¼*1/3 = 1/12. The same will be the procedure for others as well
  •  Division by doctrine of representation – in case of three generations, if the second generation consisting of a father dies, then his heirs will represent him in the partition of coparcenary 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

  • Partition, 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
  • Under mitakshara school of law, partition consist in defining the share of the coparceners in joint family. For partition no actual division is necessary. The movement share is defined, it becomes 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
  • Allotment of shares allotment of shares is done out of the assets available for partition after providing for marriage expenses maintenance father’s death and female expenses the residue of property will be divided among the personal

Frequently Asked Questions (FAQs)

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