Theoretical Overview
Meaning:
Partition is an occurrence in Hindu joint families that causes the family’s joint status to end. Partition results in the formation of new joint or nuclear families. Only when there are at least two coparceners in a Hindu joint family will there be a state of jointness among the coparceners, which will be ended by partition. It means that partition cannot occur in a family unless and until a coparcenary exists.
under Dayabhaga, Partition involves dividing property according to the exact shares of the coparceners, i.e. partition by metes and bounds.
According to Mitakshara School, partition does not simply mean dividing a property into particular shares. It essentially indicates the end of joint status. Although a coparcenary is required, the existence of joint property is not required for requesting a partition. It is a law that ends the coparcenary relationship and the joint family status. A coparcener’s definite and unequivocal declaration of intention to remove himself from the family is all that is required to form a partition.
The Effects of Partition
Separation from the joint family results from partition. After partition, a person loses all rights, duties, and responsibilities to the joint family. The shares of the coparceners are defined during partition and no longer fluctuate owing to births and deaths in the family. Property obtained by a coparcener after the partition is considered self-acquired/separate property that devolves via succession.
Persons Entitled to Demand Partition
As a general rule, each coparcener of a Hindu joint family has the right to demand the division of the coparcenary/ Hindu joint family property. However, no coparcener has unqualified and unlimited authority to division. The scope of their right to a partition can be examined under the following headings:
Special power of father:
A Hindu father can split himself and his sons, as well as among his sons, under Mitakshara law. Despite his sons’ clear opposition, he is free to use this prerogative. The consent of sons is not required. The father has the authority to split both the title and the corpus of the property by metes and bounds.
This father’s privilege is subject to three limitations:
1. Only during his lifetime can a father divide his possessions, but not after his death. A testamentary division can take place only with the agreement of all coparceners.
2. Without the approval of his sons, a father cannot achieve partial partition.
3. He must treat each son equally by giving an equal portion to everyone and should not favor one over the other in the distribution of property. If the sons believe that the split was not just and fair, they may file a court challenge and request that the partition be reopened for the purpose of readjusting shares.
Son, Grandson, and Great-grandson:
All coparceners, whether sons, grandsons, or great-grandsons, who are major and of sound mind, have the right to demand partition at any moment. A clear demand made by any coparcener, with or without justification, is sufficient, and the Karta is legally compelled to obey.
Daughters:
According to the Hindu Succession (Amendment) Act of 2005, a daughter can be a coparcener in the Mitakshara Coparcenary like a son and has all the rights that any coparcener has. As a result, a daughter has acquired the right to partition in the same way as a son does.
Son in the womb:
A son who is in the womb at the time of partition and is born alive afterwards is likewise entitled to a share, despite the fact that he did not exist at the time of partition. According to Hindu law, a kid in the womb is as good as everything else in existence for this reason. He must be assigned a separate share. If his portion is not kept, he has the right to request that the division be reopened so that his share can be allocated to him.
Son conceived and born after partition:
The rights of a son conceived and born after the partition are determined by whether the father took a portion from his sons at the time of partition. Where the father did not accept a portion for himself at the time of partition, the son conceived as well as born after the split can demand that the partition be reopened and his share is obtained. In such a circumstance, not only the property that existed at the time of the earlier partition but also the property that came into existence thereafter is subject to repartition.
Where the father has reserved a share for himself, a son who is begotten as well as born after the partition is not entitled to have a partition reopened, but he is entitled to inherit not only the share allotted to the father on the partition, but the entire separate property of the father, whether acquired before or after partition, to the exclusion of the separate sons, after the father’s death.
Adopted Son:
The Hindu Adoption and Maintenance Act of 1956 removed the difference between a natural son and an adopted son in the issuing of their parts in the partition of coparcenary property. The adopted son is now entitled to an equal portion and has the same right to partition as a natural-born child.
Son born of a void or voidable marriage:
A kid born of a void or voidable marriage is the parents’ legitimate child and is thus statutorily entitled to inherit their separate property. At the same time, he is not permitted to inherit property from any other relative of his parents. Due to statutory legitimacy, he can only be treated as a coparcener for the father’s properties. He has no right to seek partition during the putative father’s lifetime. Furthermore, he can seek partition only after the father’s death. It can be stated that the rights of a son born of a void or voidable marriage are superior to those of an illegitimate kid but inferior to those of a valid marital child.
Illegitimate son:
Mitakshara has particular provisions governing the rights of an illegitimate son. The rules vary depending on the class. No illegitimate child is entitled to a share of the coparcenary property in the higher three classes. Although he cannot seek partition, he is entitled to maintenance for the rest of his life in acknowledgment of his status as a member of his father’s family. Shudras do not obey this rule.
Minor Coparcener:
The existence of a minor coparcener is not a bar to partition and a minor has equal rights to claim partition in the coparcenary property just like a major coparcener. The only condition that applies in the case of a minor is that the suit for partition has to be filed by a guardian or next friend on behalf of the minor. A suit filed by a major coparcener itself brings partition but this is not mandatory in the case of a minor coparcener. The court will pass a decree for partition only if it finds that the partition is in the best interests of the minor and will benefit him. If the court finds it to be against the welfare of the minor, it will dismiss the such suit.
Disqualified and Absent Coparcener:
Any coparcener who is disqualified from inheriting under any defect are equally disentitled to a share on the partition.
If any coparcener is absent at the time of partition due to a strong reason and his share is not kept, he is entitled, on his reappearance to demand partition through reopening.
Alienee:
A purchaser of a coparcener’s interest in a sale has a right to demand partition as he steps into the shoes of the coparcener.
Important Differences
De jure and De facto Partition
De Jure Partition: In an undivided coparcenary, all existing coparceners have a joint share in the property, and no coparcener can tell the exact amount of share that he holds in the property until the division takes place.
Furthermore, because of the application of the law of survivorship, the interests can continue to fluctuate as a result of the births and deaths of the other coparceners. However, when the common interest is broken down at the request of one coparcener or by mutual agreement that the shares are now clearly established or demarcated, this is known as De Jure division, and the Doctrine of Survivorship has no application.
De facto Partition: The enjoyment of property by the coparceners may even continue after the severance of Joint status or split of communal interest. Although the number of shares in the property is not specified, no coparcener reserves the right to claim any property as his sole share. “A de facto partition occurs when an actual division of property affects the breaking up of Unity of Possession”.
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.
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.
4. Danamma @Suman Surpur v. Amar (2018) – The honorable Supreme Court of India held that daughters have equal rights in Ancestral Property, even if they were born before the enactment of the Hindu Succession Act.
5. Nayanaben Firozkhan Pathan v. Patel Shantaben Bhikhabhai & Others (2017) – In this the Gujarat High Court held that a Hindu daughter after marrying a Muslim does not lose her right to inherit property under the Hindu Succession Act.
Important Legal Maxims
“Nemo in Communione potest invitus detineri” – It means no one can be kept in co-proprietorship against his will. Partition is merely an arrangement whereby co-shares having an undivided interest in joint properties take by arrangements specific properties in lieu of their shares.
Points to Remember
- It is possible to conclude that partition is an instrument that serves the purpose of bringing an end to a Hindu unified family.
- A joint family property becomes the self-acquired property of each coparcener according to their parts through the mechanism of partition.
- The property can be partitioned by separating it by metes and bounds, by severing the joint status, or by both. Specifically, the split occurs in the real sense.
- Under the Mitakshara Law, the right of a son, a grand-son and a great grand-son as well as every other adult member of the coparcenary, can demand a partition even against the consent of the others.
- A son in his mother’s womb is treated in law in existence and is entitled to re-open the partition to receive a share equal to that of his brothers.
- The share of an illegitimate son is half of what he would have got had he been a legitimate son and according to others; his share is half of that of a legitimate son.
- If the partition has already taken effect detrimental to the interest of a minor coparcener, he could challenge it on attaining majority.
- An alienee of a coparcener’s interest, if such alienation is valid, has a right to demand partition.
- Partition of property under Hindu law consists of various layers and is mainly regulated by two schools of thought Mitakshara and Dayabhaga.
- Partition leads to the end of all the fluctuating rights and creates stability in respect of rights over property among coparceners.
