Partition

Vibhajan (partition) is defined by the Mitakshara as the allotment of individuals of

definite portions of aggregates of wealth over which many persons have joint
ownership.

Under Mitakshara the coparceners do not have a definite share and it is only on
partition that a coparcener becomes entitled to a definite share.

According to Dayabhaga, vibhajan means the indication of the ownership of one out
of many by the casting of a ball or pebble on a definite part of the land or cash. It
arises with reference to a portion only but which is indefinite because it is not possible
to deal specifically with a particular portion since there is nothing to show for certain
what portion belongs to whom.

According to Dayabhaga there is no ownership by birth. Every son takes a defined

share, the moment the ownership of the father ceases owing to death etc.

Under Hindu law partition puts to end the joint status in Hindu Joint family. On
partition the joint family ceases to be joint and nuclear family or families may come
into existence.

However, partition under the Dayabhaga and Mitakshara School is not the same.
Since, under the Dayabhaga school the interests of the coparceners specified and
certain, partition under Dayabhaga school means physical division of the property or
what is called partition by metes and bounds.

But it is not so under Mitakshara School, there is community of interests in the joint
family property. When a partition is to be made among the Mitakshara coparceners,
the first step will be severance of status. Thereafter actual physical division of
property will take place. Severance of status may be arrived at by agreement, by
arbitration, or by unilateral declaration of an intention to partition.

With regard to partition, the main issues which arise are:

a) What property is divisible on partition?

b) Who is entitled to a share on partition?

c) What kind of restraint acts on partition?

d) How is partition affected?

Apart from the above mentioned questions, one very controversial issue has been the
status of women under the Mitakshara law, and their rights to a share in property at the
time of partition. The enactment of Hindu Succession Act, 1956 and especially the
provisions of Section 6 thereof have helped in changing the situation only to a little
extent.

General Rules regarding Partition

On a partition between the members of the joint family, shares are allotted according
to rules prescribed in ancient Hindu texts.

In case of a partition between a father and his sons each son is entitled to a share equal
to that of a father.

Thus, if a family consists of father and four sons, each one of them will take equal
share in the property 1/5 each.

This is the settled view now but various readings of the scriptures are not unanimous
on this point. Even though all the Sutras and Smritis prescribe the rule of equal
division among the sons of wives of the same class as the father but some of these also
refer to the special share or provision given to the eldest son. On the death of a
coparcener leaving male issue, his right to a share on partition is represented by his
male issue, provided such issue is within the limits of coparcenery. But this must be
read in the light of section 6 of the Hindu Succession Act.

Every branch takes per stripes as regards every other branch, but the members of each
branch take per capita as regards each other.

In the ancestral property sons and grandsons equally have rights by birth, but in the
case of the grandsons assignment of the shares is made to them through their fathers
and not in their separate individual capacity. This may be illustrated by an example:

B C D

E F G H J K

Suppose A, B, C, D, E, F, G, H, K, formed a joint family and that A,B,C,D all die

without making a partition. B leaving one son E. C leaving two sons F, G, and D
dying leaving three sons, H, J, K. if E, F, G, H, K want to partition, then these six will
not take 1/6 each but the partition will be through their fathers i.e.
E the only son of B will take 1/3,

F and G together will take 1/3 (each will take 1/6) and

H, J, K will take 1/3 together, each taking 1/9. The same will be the result if only A, B,
C die, leaving D, E, F, G, H, K. Here D, the uncle of E, F, G along with his three sons
H, J, K will take 1/3 only.

With regard to women, only three women are entitled to a share in the partition –

a) Father’s wife,

b) Mother, and

c) Paternal grandmother.

What property can be partitioned

It is only the coparcenary property that can be subject matter of partition. Separate
property cannot be the subject of partition, nor can property which by custom
descends to one member of the family to the exclusion of other members.
Coparcenary property is that property which belongs only to the joint family as a
whole. Ancestral property which is another term for the same is property inherited by
a male Hindu from his father, father’s father and so on. According to the Mitakshara
law the essential characteristic of ancestral property is that sons, grandsons and great
grandsons of the person acquires an interest and the rights attached to such property at
the moment of their birth.

If from the very nature of things, the property is not susceptible to partition, then also
it cannot be partitioned. In other words, “if the property can be partitioned without
destroying the intrinsic value of the whole property, or of the shares, such partition
ought to be made. If on the contrary, no partition can be made, without destroying the
intrinsic value, money compensation should be given instead of the share which
would fall to the plaintiff by partition”.

Thus three methods of adjustment are available:

1) Some of the properties may be enjoyed by the coparceners jointly or in turns;

2) Some of the properties may be allotted to the share of a coparcener and its value
adjusted with the other property allotted to the other coparceners;

3) Some of the properties may be sold and their proceeds distributed to other
coparceners.

Can dwelling houses, places of worship, right of way be partitioned?

In Nirupama v. Baidyanath, the court held that in case of dwelling houses, the effort
shall be to effect an arrangement which will leave the house entirely in the hands of
one or more coparceners, or kept for common use.

Similarly with regard to family shrines, temples and idols, it was held
in Pramatha v. Pradumma that they should be given to one coparcener with the liberty
of the others to have access to them for the purposes of worship; holding the
properties in turn, in proportion to their share in the property; in case the family makes
a living out of the offerings, each coparceners would worship and take the offerings by
turn.

The right of way and other such indivisible property remains in the common use of all
the coparceners.

What are the principles regarding taking of account?

The property that is available for partition has to be calculated through a detailed
process of taking accounts where different factors including debts, the rights of those
entitled to maintenance, etc are considered. Mitakshara law says that the sons are
bound to pay off the debts of the father if these are not tainted with immorality or
illegality if these have not been provided for at the time of partition itself. In case the
provisions for the payment have not been made it has been held that the sons are liable
to the creditors of the father to the extent of their interest in the property.

In Deshpande v. Kusum it was held that where the father who was the karta of the
family had borrowed money for the improvement of the land then the other
coparceners in this case the sons would be liable for the same. Therefore the
encumbrances on the estate which should be accounted for before the partition
actually takes place are:

a) The debts due or claims against the family;

b) Charges on account of disqualified heirs, of female members and of others who are
entitled to be maintained;

c) Marriages and such other family ceremonies have to be provided for;

Persons entitled to a share on partition

Having given a basic overview of the rules regarding partition, let us now focus on
specific questions relating to the entitlement of various persons to a share on partition
of joint family property.

It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can
bring about his separation in status by a definite, unequivocal and unilateral
declaration of his intention to separate himself from the family and enjoy his share in
severalty. It is not necessary that there should be an agreement between all the
coparceners for the distribution of the joint status. It is immaterial in such a case
whether the other coparceners give their assent to the separation or not. The jural basis
of this doctrine has been expounded by the early writers of Hindu
Law…………….there is no distinction between a partition during the life-time of the
father or after his death and partition at the desire of the sons may take place or even
by the desire (or at the will) of a single (coparcener).

Therefore, a suit for partition and separate possession of ancestral joint family
properties by one of the coparceners is maintainable even if their father is joint with
his brother and is not willing and does not consent to such a partition. The conflict of
decisions referred to above has arisen from different readings of the same text of
Mitakshara.

Partition on behalf of minor coparcener

Where a suit is brought on behalf of a minor coparcener for partition, the court does
not pass a decree for partition, unless the partition is likely to be for the benefit of the
minor by advancing his interests or protecting them from danger. It may however be
noted that the minority of a coparcener is no bar to a partition between the
coparceners. A partition by agreement, though entered into during the minority of the
coparcener, is binding on the minor, unless it is unfair or prejudicial to his interests.

Examples of situations where court may pass a decree for partition, include where an
adult coparcener in possession of the family property is wasting the property, or sets
up an exclusive title in himself, or denies the minor’s rights, or declines to provide for
the minor’s maintenance.

A son conceived before partition but born later entitled to a share in property

En ventre sa mere

Hindu law provides that a son conceived before partition but born after the partition of
property takes place is entitled to a share, as if he was in existence at the time of the
partition. If no share is reserved for him at the time of partition, he is entitled to have
the partition re-opened and share allotted to him.

Illegitimate son entitled to a right in the property

An illegitimate son of a Hindu may be a son by a concubine. If the concubine is a dasi,

the son is called a dasiputra. Section 16 of Hindu Marriage Act, 1955 provides that for
the positions and rights in a Hindu coparcenary of a son born of a marriage, which is
void or voidable is to be deemed to be a legitimate child of the parents.
Under Chapter 1, s 12, para 3 of Mitakshara, illegitimate sons of the three regenerate
classes (Brahmin, Kshatraiya, Vaishya) are only entitled to maintenance and not to
inheritance or to any share on partition. However, in case of a sudra, the illegitimate
son is entitled to certain rights of inheritance and partition.

The illegitimate son of a Sudra does not acquire by birth any interest in his father’s
estate. He cannot, therefore, enforce a partition against his father in his lifetime. On
the father’s death, however, he succeeds to his estate as a coparcener with the
legitimate son of his father, with a right to survivorship, and he is entitled to enforce a
partition against the legitimate son. However, the legal status of an illegitimate son of
a Sudra was first recognised in Sadu v. Baiza, and it was held that after the death of
his father such a son along with a legitimate son succeeded as a coparcener with right
of survivorship to the property in his father’s hand, he, however, taking only half a
share.

On a partition between an illegitimate and a legitimate son, the illegitimate son takes
only one-half of what he would have taken if her were legitimate, i.e. the illegitimate
son gets one-fourth and the legitimate son takes three fourths. Therefore, it is well
settled proposition that an illegitimate son of a Sudra is entitled to succeed to his
separated father’s property, whether ancestral or separate in his hands.

If the father was joint at his death with his collaterals, eg., his brothers or their sons, or
his uncles or their sons, the illegitimate son is not entitled to demand a partition of the
family property, but he is entitled as a member of the joint family to maintenance out
of such property, provided his father left no separate estate.

Disqualifications on account of disability

Before the Hindu Succession Act, 1956 and the Caste Disabilities Removal Act, 1850
came into being both unchastity of a widow at the time of her husband’s death and the
loss of caste or religion were valid grounds for the taking away their entitlement to
any share in the property. The Caste Disabilities Removal Act, 1850 operates to
remove the disability as far as the person who is undergoing conversion to another
religion or has suffered a loss of caste is concerned and as far as his or her heirs are
concerned the law of the religion that the individual has converted shall apply insofar
as succession is concerned.

The courts have also held that congenital and incurable deafness and blindness are
also valid reasons for disqualification of heirs. Along with this impotence, lameness,
and want of any limb which is also congenital also operate as physical
disqualifications. Virulent leprosy as far as rendering a person unfit for social
intercourse also acts as a bar.
This position has been changed by the Hindu Inheritance (Removal of Disabilities)
Act, 1928 which removes the bars to succession for all heirs other than those who are
since birth afflicted by either lunacy or idiocy.

Purchaser of undivided interest and demand of partition

A purchaser of the undivided interest of a coparcener, at a sale in execution of a decree

can demand partition according to all schools. There is a conflict between the
Bombay, Madras and Madhya Pradesh states on one hand and Bengal and Uttar
Pradesh on the other with regard to the position of a purchaser of the interest of a
coparcener by private contract. According to the former, the purchaser can claim
partition, while according to the latter, he cannot do so.

Status of Women and the law of Partition

The persons who have no right to partition but who are entitled to a share if partition
takes place include father’s wife, mother and grandmother. No female except those
mentioned is entitled to a share on partition. Thus daughters, sisters etc. are not
entitled to a share on partition. However, on a partition, provision must be made for
their maintenance and marriage expenses. Now, let us discuss the rights of each of
women separately.

Nature of right of the wife at the time of partition

The wife cannot herself demand a partition, but if the husband himself separates his
sons during his lifetime or if the sons claim a partition during the father’s lifetime, the
wife was entitled to a share equal to that of a son. If there be several wives each get a
share equal to that of a son. She may either be mother or the step-mother of the sons.
She can sue for her shares where there has been a partition and she has not been
assigned any share, provided there was no waiver of her rights or acquiescence on her
part.

The father when separating from the sons should take for each of his wives a share
equal to that of each son, but it is not meant that the husband is to carve out separate
portions of the joint property and hand them over to his wives, since such a procedure
would be opposed to the dictum “there is no partition between husband and wife”

Position with respect to widow-mother

Generally speaking, a widow mother cannot compel a partition so long as the sons
remain united. If a partition does take place, she is entitled to a share equal to that of a
son in the coparcenery property.
Position with respect to the grandmother
A paternal grandmother or step-grandmother can not herself demand a partition but in
the following situations she is entitle to a share on the partition:
 When a partition takes place between her son’s sons, her own son being dead,
she is entitled to a share equal to the share of a grandson.

 When partition takes place between her son and sons of a predeceased son, she
is entitled to a share equal to the share of a grandson.

 When partition takes place between her sons and their sons, according to the
Allahabad and Bombay High Courts she is not entitled to a share but according
to the Calcutta and Patna High courts she is entitled to a share equal to the
share of a grandson.

Reopening:
According to the Hindu Joint Family, once the Partition is made, it can be irrevocable
or re-opened.

A text of Manu, once the partition of inheritance made: Once is a damsel given in the
marriage and once does a man say, "I give", these three are done for once
and irrevocable.
But, in some cases the partition can be re-opened:
1. Fraud:
If the Partition is found any fraudulent, it can be re-opened. For instance,
worthless assets are fraudulently misrepresented as valuable assets and are distributed
to a coparcener, he has right to claim the re-opening of partition.
2. Son in Womb:
When a joint family undergoes partition, each member of the family is entitled to
claim his/her share. Under Hindu law, coparacenary share is the term that is used.
When partition is being contemplated and any woman of the family is pregnant at the
time, Hindu law recommends postponing the partition till the child is born. In Hindu
law, a child in the womb also has the right to a share. However, if it is not possible to
reschedule the partition, a share must be kept aside and that share must be equal to the
coparcener’s share. If, in case, the partition takes place without keeping a coparcener
share for the unborn child, the after born son has the right to get the partition
reopened.At the time of partition, if a son is in Womb, and no share is allotted for him,
it can be reopened.
3. Adopted Son:
 If a widow of a coparcener adopted a son after the partition was take place.
The adopted son has a right to re-open the partition. (Old law when doctrine of
relation back was prevailing )
4. Disqualified Coparcener:
A disqualified coparcener is deprived of his share at the time of partition due to some
technical constraint. After the disqualification is removed, he can get the
partition removed.
5. Absentee Coparcener:
At the time of partition is taken, where a coparcener is absent and there is no share is
allotted to him, he can get the partition re-opened.
6. Minor Coparcener:
A minor coparcener can claim the re-opening of the partition, if he can establish that
the partition. During his minority was unjust, unfair and prejudicial.
So, according to these cases a partition can be re-opened in the Hindu Joint Family.

The following propositions emerge:

(1) A partition effected between the members of the Hindu Undivided Family by their
own volition and with their consent cannot be reopened, unless it is shown that the
same is obtained by fraud, coercion, misrepresentation or undue influence. In such a
case the Court should require a strict proof of facts because an act inter vivos cannot
be lightly set aside.

(2) When the partition is effected between the members of the Hindu Undivided
Family which consists of minor coparceners it is bindig on the minors also if it is done
in good faith and in bona fide manner keeping into account the interests of the minors.

(3) Where, however a partition effected between the members of the Hindu Undivided
Family which consists of minors is proved to be unjust and unfair and is detrimental to
the interests of the minors the partition can certainly be reopened whatever the length
of time when the partition took place. In such a case it is the duty of the Court to
protect and safeguard the interests of the minors and the onus of proof that the
partition was just and fair is on the party supporting the partition.

(4) Where there is a partition of immovable and movable properties but the two
transactions are distinct and separable or have taken place at different times. If it is
found that only one of these transactions is unjust and unfair it is open to the Court to
maintain the transaction which is just and fair and to reopen the partition that is unjust
and unfair.

Reunion of HUFs

Even after a total partition, it is possible for the coparceners to reunite undoing the
earlier partition among themselves. The effect of such reunion is to bring back to life,
the former status of the HUF. A reunion can only take place between persons who are
parties to the original partition. If a joint Hindu family separates, the family or any
member of it may agree to reunite as a joint Hindu family.
The condition precedents for a valid reunion under the Hindu Law are:
 There must have been a previous state of union. Reunion is possible only
among persons who were on earlier date members of the HUF.
 There must have been a partition in fact.
 The reunion must be effected by the parties or some of them who had made the
partition.
 There must be a junction of estate and reunion of property because reunion is
not merely an agreement to live together as tenants in common.
Reunion is intended to bring about a fusion in the interest and in the estate among the
divided members of an erstwhile HUF once again. Therefore, reunion creates a right
on all the reuniting members in the joint family properties which is the subject matter
of partition among them to the extent they were not dissipated before the union.
There should, however, be a proper agreement between the parties so that the intention
to revert to the original status of the HUF is expressed clearly and unambiguously. The
burden of proof of reunion is on the party asserting the reunion and must be
discharged along with proof by the persons reuniting. It should also be remembered
that if the partition comprising immovable properties was by a registered deed then
the reunion, which follows if it is to be valid in law, must also be effected by a
registered deed.
In a reunion, a few of the properties of the former HUF and also a few members of the
former HUF may remain out of the reunited HUF.

It is suggested to go through the class notes also.