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Partition Under Hindu Law – A Comprehensive Analysis

by Lakshya Kaushish
Partition under Hindu Law by Lakshya Kaushish

INTRODUCTION

Partition is defined as the division of a property into two or more parts. Partition under Hindu law, is the division of a joint Hindu family’s property in order to confer separate status on the undivided coparceners. It is important to remember that in a Joint family with only one coparcener, no partition is feasible. A coparcener is someone who shares an estate with others as a coheir.

Under Hindu law, the notion of a coparcener is an integral aspect of joint family property. Each coparcener owns an equal share of the Joint Hindu Family’s property, and each retains an inherent title to the land. When a Hindu joint family agrees to divide their property, their united identity as a family is dissolved. However, in order to establish a condition of jointness among the coparceners in a family, at least two coparceners must be present in the family.

The common ancestor and all of his lineal male descendants up to any generation, as well as the common ancestor’s wife/ wives (or widows) and unmarried daughters of the lineal male descendants, make up a Hindu joint family. Regardless of what sceptics think about the Hindu joint family’s future, it has always been and will continue to be an important part of Hindu culture.

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The karta or manager (the English word manager is utterly insufficient in describing his unique role) is a very significant figure in the Hindu joint family. Karta is the family’s oldest male member. He is the Patriarch of Hinduism. Only a coparcener has the ability to become Karta.

A coparcenary is a small group of people who live together in a joint family. It is entirely made up of male members. Although not incorporated, a Hindu coparcenary is a legal entity. A coparcenary is made up of four generations, including the property’s last male holder. The family’s senior member is the last male possessor of the property.

RESEARCH METHODOLOGY

I employed qualitative research methodology in this research report, which is descriptive and subjective regardless of facts. This type of methodology relies heavily on description and analysis. The fundamental goal of this type of methodology is to assess knowledge, attitudes, behaviours, and cultures that influence how modern Indian society functions in relation to Partition. To provide a complete picture of Partition, the method employs grounded research, case law analysis, action research, disclosure analysis, ethnography, and other techniques.

CHAPTERISATION

 The primary objective is to highlight the appropriate legal provisions to discuss various aspects of Partition that are essential for a valid partition to take place in a Hindu Joint family. The following chapters are hereby discussed in the paper: –

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CHAPTER 1: PARTITION UNDER HINDU LAW

PARTITION UNDER SCHOOLS OF MITAKSHARA AND DAYABHAGA

  • Dayabhaga school: In a Dayabhaga school, every adult coparcener has the right to demand partition by physical demarcation of his shares. Partitioning by limits and metes, for example, must adhere to the demarcation of specified partition shares.
  • Mitakshara school: In Mitakshara school, property is not divided into precise shares, and while the elements of a coparcener must be shown, the presence of joint property is not a requirement for pursuing partition. To demand a divorce, all that is required is an unequivocal proclamation of his wish to be divorced from his family.

TYPES OF PARTITION UNDER HINDU LAW

  • De Jure Partition: In an undivided coparcenary, all existing coparceners have a joint share in the property, and none of the coparceners can tell the exact amount of share that he holds in the property until the division takes place. Simply said, it is a partition that has occurred but no actual possession has been assigned.
    Due to the sheer law of survivorship, the interests of the coparceners can fluctuate according to births and deaths of the other coparceners. However, a De Jure division occurs when the community interest is broken down at the request of one coparcener or by mutual agreement that the shares are now clearly set or demarcated.
  • De facto Partition: After the severance of Joint status or split of community interest, unity of possession, which refers to the coparceners’ enjoyment of property, may continue. Although the number of shares in the property may not be specified, no coparcener waives his right to claim any property as his exclusive share. “A de facto partition occurs when the Unity of Possession is broken up by a real division of property.” Simply said, in a De facto partition, not only the ownership but also the possession of a property is transferred.

SUBJECT MATTER OF PARTITION

1.         In general, the entire joint family property is susceptible to partition, but the distinct property of coparceners is not. The existence of joint family property must be proven by a plaintiff seeking partition. Where the existence of a joint family is not in question, however, each coparcener is entitled to an equal portion.

2.         Some properties, however, may be held jointly by two or more coparceners, such as when a coparcenary exists within a coparcenary, and if a general partition occurs, these properties may be divided among these coparceners, but other coparceners may claim a portion in them. Even though the lease may be subject to revocation in certain situations, if the joint family is in possession of property held on a permanent lease, such property is also available for partition. The partition does not apply to impartible estates that are part of a joint family’s property.[1]

CHAPTER 2: ESSENTIAL MODES OF A VALID PARTITION UNDER HINDU LAW

  • Expression of intention is where one member of the joint family can express his intention to partition that expression of intention only results in severance of joint status even though no actual partition took place. Following are some major modes of partition-

·       Partition by father

Under Hindu Law, the father has more power than the other coparceners, and his rights are more powerful. i.e. ‘Patria potestas’, by enacting a partition, he can separate himself from the Joint family as well as each son, including minors.

·       Partition by agreement

Partition by agreement occurs when all of the coparceners agree to dissolve the joint status. The court has no authority to recognize a partition unless the parties have reached an agreement on mutually acceptable terms. Each participant to a partition agreement agrees not to cause any hindrances or assert any claim or right on the portion they have decided to give up through this partition deed.

·       Partition by Suit

Filing a lawsuit in court is the most popular technique to indicate one’s desire to get divorced from the joint family property. The plaintiff’s status in the joint family property ends the moment he states his unmistakable decision to separate in court. It usually occurs when there is a family disagreement or when there is a lack of mutual consent among the coparceners.

·       Partition by Conversion

Conversion to a non-Hindu religion might result in the loss of a coparcener’s standing in the Joint Family. The member who converted to religion would lose his coparcenary membership, but the status of the other coparceners would not be affected.

·  Marriage under the Special Marriage Act

Severance of status happens automatically from the day of marriage if a coparcener marries according to the provisions of the Special Marriage Act, 1954, and the coparcener is entitled to receive his or her part of the property.

·       Partition by Arbitration

An agreement is established among the coparceners of a joint family to choose an arbitrator to arbitrate and divide the property among themselves or coparceners under this mode of partition. The date on which such a partition becomes operational is the date on which it was created.

·       Partition by Notice

The intention to separate, which must be disclosed to other coparceners, is the most important aspect of partition. As a result, whether or not accompanied by litigation, a partition may take effect simply by giving notice to the coparceners.

·       Right to Demand Partition

As a general rule, any coparcener of a Hindu joint family has the right to demand that the coparcenary/ Hindu joint family property be partitioned.[2]

PARTIAL PARTITION

In most cases, each family member receives a different portion and acquires a separate part as a result of the split. However, there are occasional exceptions to this general rule; for example, a suit for division can sometimes be for a portion of the entire property.

1. When general partition of a property is not practicable due to conditions such as a lease or mortgage, the property will be left unpartitioned and the remainder will be subject to partial partition.

2. Where various parts of property are located within and outside of India.

3. When property is owned jointly with strangers who are not subject to the Family Partition Act.

4. Where some property was missing out at the prior split due to a mistake or fraud.

In these instances, a partial partition suit, that is, a partition based solely on available property, will be filed.

When a joint family owns more than one property, one of the properties can be divided in half. It results in severance of a portion of the joint property while maintaining joint family status. It is the property’s partial partition. A partial partition as to persons occurs when one person’s family wishes to withdraw from the unit.[3]

CHAPTER 3: PARTIES LEGALLY ENTITLED TO DEMAND PARTITION UNDER HINDU LAW

1.      Special power of father: A Hindu father retains the authority to divide his property between his sons. As a result, regardless of his sons’ verbal assent or dissent, the father can sever the property using the exceptional power granted to him.

2.      Son, Grandson, and Great-grandson: Regardless of whether they are sons, grandsons, or great-grandsons, all coparceners who are major and of sound mind have the right to demand partition at any moment. Any coparcener can make a clear demand, with or without justification, and the Karta is legally obligated to obey.

3.      Daughter: Daughters, sons in the womb of their mothers, adopted sons, sons born after a void or voidable marriage, illegitimate sons, and so on all have the right to demand partition as legal coparceners.

4.    Partition of coparcenary property: It’s important to remember that a coparcener has the power to demand partition at any time without the other coparceners’ approval. Since the purpose to partition the coparcenary property is announced, each coparcener’s portion becomes explicit and quantifiable. It’s worth noting that after the coparcener’s share is established, the property no longer qualifies as coparcenary. In this case, the parties will own the property as tenants-in-common rather than as joint tenants. The term “tenancy in common” refers to a situation in which two or more persons share ownership of a property.

5.    Adopted Child: If the widow of a coparcener embraced a child after the partition, the embraced child is authorised to reopen the partition. The Hindu Adoptions and Maintenance Act of 1956, which dates back to the date of the deceased husband’s death, might be used to resurrect the division.

5.    Minor coparcener: In the case of a minor coparcener, the test for partition is whether the division is in the minor’s advantage or interest, or whether it poses a risk to the minor’s interests. It’s important to note that the court has the last say on whether or not a matter comes within the scope of the minor’s interests.

According to Hindu law, if a minor has an undivided part in a Joint Family, the Karta of the Joint Family becomes the youngster’s guardian. The rights of the minor and the rights of the major are identical when it comes to the right to demand partition by a person. 

By filing an action through his guardian, the child retains the right to claim partition just like an adult coparcener. However, if it is determined that the suit is not in the best interests of the minor, the case may be dismissed. As a result, it is the court’s responsibility to provide justice to minors by safeguarding their rights and interests.[4]

CHAPTER 4: EFFECTS OF PARTITION OF PROPERTY IN A HINDU JOINT FAMILY

In a joint family, a partition can result in the property being severed or separated. A person’s rights, obligations, duties, and responsibilities originating from a Joint Family are regarded to be discharged after partition. Following the partition, every current coparcener is assigned a fixed number of shares. The following are some of the repercussions on the parties to the partition:

1. It results in the loss of coparcenary status. Every coparcener receives his or her own portion and rights to that part. A person’s rights, duties, and responsibilities toward the joint family that existed prior to the partition are no longer applicable.

2. If a separated member dies, his shares pass to his heirs rather than survivorship.

3. An ancestor’s business loses its essence and becomes subject to the Partnership Act’s provisions. Coparceners purchase different firms and are no longer obligated to furnish a joint family an account of their business.

4. The father, as the family’s Karta, is unable to impose a constraint on pre-partition debts through partial payment or endorsement.

5. In the case of partial division, those who have broken their ties with the joint family lose their prior status.

EFFECTS OF ORAL PARTITION UNDER HINDU LAW

Oral partition, also known as family arrangement, is a powerful tool for ensuring a family’s peace, happiness, and well-being while avoiding litigation. It is especially beneficial in the case of illiterate family members or those who lack the financial means to pay for legal processes/advice, etc. Oral partition and family were changed by legislation to the Hindu Succession Act. As a result, the Commission proposes an appropriate revision to section 6 of the Hindu Succession Act, 1956’s Explanation to include oral partition and family arrangement in the definition of “partition”.

CHAPTER 5: PROPERTIES NOT CAPABLE OF DIVISION BY THEIR VERY NATURE

Although the general rule is that the entire joint family property is open for partition, certain species of joint family property are by their very nature difficult to split, and such properties cannot be divided. As a result, there are three options for adjusting:

  • Some of the properties may be enjoyed equally or alternately by the coparceners.
  • Some of the properties may be allotted to a coparcener’s share and its value changed in accordance with the value of the other properties assigned to the other coparceners. 
  • Some of the properties may be sold and the Earnings distributed to other coparceners.

Can living dwellings and places of worship be partitioned? This is a common question. The court concluded in Nirupama Basak v. Baidyanath Pramanick[5] that in the case of dwelling houses, the attempt should be made to reach an agreement that leaves the house wholly in the hands of one or more coparceners or retained for common use. Similarly, it was held in Pramatha Nath Mullick v. Pradumma Kumar[6] that family shrines, temples, and idols should be assigned to one coparcener with the liberty of the others to have access to them for the sake of worship; the properties should be kept in turn, in accordance to their share in the property; If the family relies on the offerings for a living, each coparcener would worship and take the gifts in turn. The right of way, as well as other indivisible property, remains in common usage by all coparceners.

CHAPTER 6: GROUNDS FOR REOPENING OF PARTITION UNDER HINDU LAW

Following the Partition, Hindu law has made it permissible to reopen or revoke the partition. According to Hindu Law, in circumstances of Mistake, Absentee Coparcener, Undue Influence, Fraud, Son in the womb, Son conceived and born after partition, Disqualified coparceners, as well and additional property after division, the partition might be reopened.

1.      Mistake: If any members of the Joint family have mistakenly abandoned their joint family properties and are left out of the partition, the partition can take place later.

2.      Fraud: Any partition can be revoked if it is used for dishonest purposes. If the assets are fraudulently represented, for example, the coparcener has the power to reopen the partition.

3.      Disqualified coparcener: There may be times when the disqualified coparcener falls short of his share at the moment of partition due to a technological constraint. He retains the right to have the partition removed and the disqualification lifted.

4.      Son in Womb: If a son is in the womb at the time of partition and no shares were awarded to him, the partition can be reopened later.

5. Adopted Son: If the widow of a coparcener adopts a son after the partition, the adopted son is allowed to reopen the partition. Under the Hindu Adoptions and Maintenance Act 1956, such adoptions are traced back to the date of the deceased husband’s death, and the adopted son can reopen the partition.

6.      Absentee Coparcener: If a coparcener is absent at the time of partition and no share is allocated to him, he might reopen the partition.

7. Minor Coparcener: After reaching majority, a minor Coparcener might request that the partition be reopened if he was not allocated his share at the time of partition. It usually occurs when the partition was unequal, unfair, or adverse to the minor’s interests.

CHAPTER 7: LIABILITIES TO BE TAKEN CARE OF BEFORE PARTITION

1.         Debts: Debts incurred by the father or the Karta on his behalf, or for the benefit of the joint family, must be paid. According to Mitakshara law, the sons are obligated to pay up the father’s obligations if they are not contaminated with immorality or illegality and if they were not provided for at the time of partition. If the payment provisions are not made, the sons are accountable to the father’s creditors to the extent of their stake in the property. Thus, any outstanding debts or claims against the family must be settled before the split may proceed.

2.         Marriage expenses of daughters: It is to be ensured that all the necessary marriage expenses of daughter and performance of certain ceremonies and rite are carried out by the father or Karta before Partition

3.         Maintenance: Before the Actual Partition, the maintenance of disqualified coparceners and their immediate dependents, mothers, stepmothers, grandmothers, and other females entitled to be kept by the joint family property, unmarried sisters, and widowed daughters of deceased coparceners must be secured.[7]

CHAPTER 8: SHARES TO FEMALE MEMBERS AT A PARTITION UNDER HINDU LAW

The Mitakshara coparcenary partition’s allotment of shares to female members has caused great controversy and dispute, especially since the implementation of new enactments codifying the law of succession, adoption, and maintenance.

According to Section 6 of the Hindu Succession Act, a coparcenary is retained under Mitakshara, allowing succession rights to female members of Class I of the Schedule or male members who claim through such female members.

·       Partition at the Lifetime of the father

(a)A woman’s right to a share on division during the father’s lifetime exists due to her co-ownership in the husband’s property, thus the wife should be allotted a share on partition during the father’s lifetime, according to a liberal perspective.

(b)Even if it is assumed that it is in place of maintenance, there is no written or implied provision that undermines the family’s claim to such a share on the partition for the family’s lifespan. Section 22(2) of the Hindu Adoptions and Maintenance Act, 1956, if it has any effect at all, cannot protect such a case because it only deals with the maintenance issue after the devolution of property by maintenance.

The right of a paternal grandmother to share among her grandsons on a partition is unaffected. When a partition claim is filed, the spouse or son dies while the case is proceeding.

·       Share of Female Members at a Partition after the death of Husband/Son

1. The 1937 Hindu Women’s Rights to Property Act “replaced” a woman’s right to share in the partition following her father’s death. In the absence of any specific legislative provision to that effect, the Hindu Succession Act cannot be considered as resurrecting the mother’s right by repealing the Hindu Women’s Rights to Property Act of 1956.

2. After the death of the father, a mother’s share on the partition is instead of maintenance. If the previous system persists, it should be regarded as abolished because the Hindu Adoptions and Maintenance Act formalised the law and granted the mother a particular entitlement.

CHAPTER 9: REUNION OR REVOCATION OF PARTITION UNDER HINDU LAW

If any member of the family wants to reunite and re-join their respective estate portions, this is a very uncommon practise. It is feasible for the coparceners to reconnect after a total division by undoing the previous partition among themselves. Only those who were involved in the original partition are eligible for a reunion. If a Hindu joint family splits up, the family or any of its members may elect to reconnect as a Hindu joint family.

The following are the prerequisites for a legal Hindu Law reunion:

  • Only your brother, father, and paternal uncle can participate in the partition reunion.
  • You can hold a partition reunion with the members who were involved in the partition.
  • Since reunion is more than just an agreement to live together as tenants in common, there must be a connection between estate and property reunion.

The objective of the reunion is to bring all of the coparceners back together. Reunion confers a right on all reuniting family members in the joint family properties that are the subject of partition among them, to the degree that they have not been dissipated prior to the union.

CONCLUSION

 Partition under Hindu law is a concept that is guided primarily by two modes of thought, Mitakshara and Dayabhaga. Partition in a Hindu joint family means that the status of jointness, ownership and solidarity among the family members is broken. The division can take place in a variety of ways, including Conversion, Notification, Will, Arbitration, Agreement, and Suit etc. Thereby we also discussed parties eligible for Partition including women and adopted children, as well as grounds for disqualification, along with effects of partition. Also, the grounds for reopening of partition have also been discussed in the paper along with liabilities that has to be taken care of before Partition.

The partition under Hindu Law may occur by stripes or by branch in the Mitakshara school; however, in the Dayabhaga school, Partition occurs simply after the death of the Karta; the Dayabhaga school does not follow any coparcenary ideas. Provision also provides an opportunity for Reunion or Revocation of Partition as well. Hence, the Provisions try to cover various aspects to ensure a fair distribution of property amongst the members of the family including the unborn child, yet the laws have been going through constant amendments to ensure all the lacunas during distribution of property are erased from the provisions of India.

BIBLIOGRAPHY

1.     www.indiankanoon.org

2.     www.legalservicesindia.com

3.     www.prsindia.org

4.     The Hindu Marriage Act, 1955

5.     The Hindu Adoption and Maintenance Act, 1956

6.     The Personal Laws (Amendment) Act, 2010

7.     http://familylaw.lawnotes16mrks.com/Family/Partition.html

8.     https://www.legalbites.in/partition-hindu-law/


[1] https://blog.ipleaders.in/critical-analysis-partition-hindu-law/#:~:text=Under%20the%20Hindu%20law%2C%20partition,status%20on%20the%20undivided%20coparceners.&text=Each%20of%20the%20coparceners%20has,inherent%20title%20in%20the%20property

[2] https://allindialegalforum.in/2020/07/05/partition-under-hindu-law/

[3] https://lawcorner.in/partition-of-property-under-hindu-law/

[4] https://nagpuricai.org/seminar-presentations/Notes_on_Partition_and_Wills_of_Workshop_on_HUF.pdf

[5] AIR 1985 Cal 406

[6] (1925) 27 BOMLR 1064

[7] https://www.lawaudience.com/the-concept-of-partition-under-hindu-law-with-special-reference-to-dayabhaga-and-mitakshara-schools-of-hindu-law/


This article has been written by Lakshya Kaushish, a 3rd Year B.A.LL.B student at Bennett University. He can be contacted at lakshya.kaushish01[at]gmail[dot]com


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