UNIT 2- B

Dr. Naseema. P.K

 a. Who can sue for Partition?
 Ordinarily , a suit for partition must include all joint family property & all
persons interested in the joint family properties
 Persons having a right to partition are listed
 Father……Has right to partition as well as can effect partition among sons
inter-se
 Son, Grandson & Great Grand son (Only in Mitakshara School, not
Dayabhaga as there is no coparcenary between father & sons in Dayabhaga)
 Son born after Partition
 Adopted son
 Illegitimate son ( with some conditions)
 Minor Coparcener
 Alienee
 Absent Coparcener
 Widow u/ Hindu women’s right to property Act or a female u/s.6 of Hindu
Succession Act
b. Death of Minor during the pendency of suit

• A suit for partition can be filed by Hindu minor

• If at all the minor dies during the pendency of the suit, it may be continued by his
legal representative
• It is well agreed that if the conduct of the adult coparceners is prejudicial to the
interest of the minor, the court will presume that it is for his benefit to divide the
estate
• The maxim actio personalis moritur cum persona has application only when the
action is one for damages for a personal wrong & a suit for partition is a suit for
property, the rule has no application to it and the suit will not abate.
• Refer : Thavva Rangasayi And Ors. vs Thavva Nagarathnamma ,
(1933) 65 MLJ 630 (Madras HC)
• While a suit on behalf of a minor can be filed by any person as next friend,
in the case of a suit for partition the suit ought not to be decreed unless it is
for the benefit of the minor, not because there cannot be a partition between
a minor and the other members, but it is possible that the suit may not be for
his benefit
• Peculiarity in a suit for partition instituted on behalf of a minor becomes important in cases
when the minor happens to die before a decree is passed in his favor in the suit.
• A case of a personal action which is said to die with the person is Actio personalis moritur cum
persona. Right of partition is a right relating to property
• Prima facie such a suit, if properly instituted, should not abate, but on Plaintiff's death his legal
representatives should be in a position to carry on the litigation. The very same question which
will have to be decided in the suit itself, namely, whether partition is for the benefit of the minor,
will also decide whether his interests in property have passed by survivorship to the other
coparceners or have passed to his (minor's) heir, widow, daughter, or mother, as the case may be
• It is to be noted that the suit does not abate in such circumstances
•
 Minor’s death does not debar the Court from confirming his right to a partition
 The interest or benefit of the minor which is said to be the guiding consideration
with the Court in decreeing the suit is not simply an interest or benefit personal to
the minor. It involves the existence of special rights to property
 Hence the accident of the minor's death pending suit ought not to prevent the
pursuit of those rights for the benefit of the minor's estate by his legal
representative
 c. Partial Partition & Deemed Partition
• Partial Partition already discusses ( Please see the earlier slides)
• The Supreme Court has ruled that A Hindu coparcenary property should be
divided on "notional partition" if the father dies intestate as if the
partition was effected just before his death
• The operation of the notional partition should be only for the purposes of
devolution of interests of the deceased in the coparcenary property
• Means for the purposes of finding out undivided interest of a deceased
coparcener, a notional partition is assumed immediately before his death
 d. Special power of father to effect partition

• Power to Partition by father during his lifetime

• A special power is given to father in the exercise of which he can bring out
partition on his own if the coparcenary consists of the father and his sons
only
• He can separate his sons from himself and also separate the sons from one
another without the consent of the sons
• This power of father is a part of the ‘patria potestas’ (paternal power)
recognized by Hindu law
• Special power of father is such that despite the express dissent of his sons, he
can exercise this right
• The father is authorized to divide the title as well as the corpus of the property by
metes and bounds
• This right of father has three restrictions on it
• Father can divide his property only during his life time but not by will after his death
• A father cannot effect partial partition among his sons without their consent
• The allotment of the property must be equal and fair. If the partition was not just and fair,
they may challenge such partition in the court
 e. Effect of S.6 of HSA (2005)
• The Hindu Succession (Amendment) Act, 2005 a landmark step
• This amending Act of 2005 is an attempt to remove the discrimination as
contained in S. 6 of the Hindu Succession Act, 1956
• By giving equal rights to daughters in the coparcenary property as the sons
have
• Section 6 of the amendment act has an overriding effect so far as the
constitution of coparcenary, partition of a coparcenary property and
succession of interest of deceased member (male or female) are concerned
• The basic object of the amendment to the S. 6 of the Hindu Succession Act
is to achieve equal inheritance for all
• Daughter whether married or unmarried of a coparcener in a Hindu joint
family governed by Mitakshara Law now is coparcener by birth in her own
right in the same manner as a son