DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE :-PARTITION DEED

SUBJECT:- TRANSFER OF PROPERTY

NAME OF THE FACULTY:-MR. JOGI NAIDU

Name of the Candidate :- G.T.GURU CHARAN REDDY

Roll No. :- 2018032

Semester :- 4TH

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ACKNOWLEDGEMENT

I would sincerely like to put forward my heartfelt appreciation to our respected history
professor, “MR. JOGI NAIDU”for giving me this golden opportunity to take up this project
regarding “PARTITION DEED”. I have tried my best to collect information about the project
in various possible ways to depict clear picture about the given project topic.

RESEARCH METHODOLOGY:-
This project is purely Doctrinal and based on primary and secondary
sources such as websites, books, articles and internet sources.

TABLE OF CONTENTS

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1. ABSTRACT................................................................................................................................
2. INTRODUCTION......................................................................................................................
3. EFFECTS OF PARTITION.....................................................................................................
4. PARTITION UNDER HINDHU LAW...................................................................................
5. DIFFERENCE BETWEEN PARTITION UNDER HINDHU LAW AND INCOME TAX
ACT................................................................................................................................................
6. PARTITION UNDER PARTNERSHIP AND NOTIONAL PARTITION.........................
7. HOW TO FILE A PARTION SUIT ITS PROCEDURES AND PARTITION DEEDS....
8. BIBLOGRAPHY........................................................................................................................

ABSTRACT
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Family Partition
Properties and human beings are inseparable. With progress and social change over the ages the
urge to own property, wealth has acquired demonic proportions. In the present day world,
immovable properties are the most valued assets one can possess.

The desire to own material possessions reared its head in the inquisitive mind of the Stone Age
man. Thus women, children came to be his first personal assets, followed by immovable
properties. While literacy and social outlook have elevated the status of women and children,
there has been no change worth the name as to the status of immovable property as the personal
asset of the human being. So long this state of affairs continues problems relating to property

transfer will persist. From Stone Age to cement age, it has been a long haul.Partition of a

property means bringing the joint status to an end. On Partition the joint family ceases to be joint,
and nuclear families or different joint families come into existence.

Under the Dayabhaga school, when coparceners Partition, it means the division of property is
done in accordance with the specific shares of the coparceners since the Dayabhaga coparceners
have ascertained and specified shares.

Whereas under the Mitakshara school, Partition of property does not necessarily mean division of
property into specific shares, it also means division of status or severance of status or interest. It is
because the interests of the Mitakshara coparceners is unspecified. Thus, under the Mitakshara
school, partition means two things:

1. Severance of status or interest

2. Actual division of property in accordance with the shares so specified. It is also known as
partition by metes and bounds.

INTRODUCTION

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Partition is division of property held jointly by co-owners. When a property is divided each
member becomes sole owner of his portion of the property. Each divided property gets a new
title and each sharer gives up his or her interest in the estate in favor of other sharers. Therefore,
partition is a combination of release and transfer of certain rights in the estate except those,
which are easements in nature.

Partition is neither a gift nor a transfer of property. It merely breaks a joint right into several
rights. It is not acquisition of property or exchange of property. It is a combination of release and
conveyance of the rights of the property in favor of individuals. And therefore it can be affected
orally. Partition is not transfer but when it assumes the form of transfer, the intention may be to
hoodwink the creditors.

The basic character of joint Hindu family is that each member has inherited title to the property
by birth. Each member has joint title to the entire property and that joint enjoyment of the title is
converted by partition into separate title of the individual co-owner for his enjoyment. Therefore,
it is now an established fact that partition is not transfer, but transformation of joint property.

There are some properties, which cannot be divided physically. If physical division is not
possible, partition can still be affected by paying cash or other assets to a sharer in lieu of his or
her share in the property. Such situation arises when the division of an estate is considered to be
dangerous and unreasonable, and when such division dilutes the inherent value of the property,
or when the immovable property is too small for division.

The instrument of partition is a document by which the co-owners of a property agree to divide
the property among themselves by oral agreement or written agreement or by arbitration or
through court. If a document of release shows that the executants are to get cash or other assets,
the document is an instrument of partition. The basis of partition is equality. The parties shall
share the property equally.

If there is no agreement among the co-owners for amicable division of the property, the only
alternative is to sell the property by mutual consent or by court decree and distribute the sale
proceeds among the co-owners. Any of the co-owners may also enforce partition through Court.

In a partition suit a court may have decreed partition of the property in the interest of the co-
owners. But if it is found that the sale of the property and distribution of the proceeds to the co-

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owners is more beneficial, the court can at the request of the shareholders direct sale of the
property and distribution of the proceeds to the co-sharers.

There are three types of co-owners: Joint tenants or tenants-in-common; Hindu Joint Family
owners or coparceners; partners of a partnership firm. Under the Hindu Law in general everyone
being a co-owner in a joint ownership has a right to claim his share and such right cannot be
denied to him if the property is held as joint tenants. Since joint tenancy is unknown to Indian
law, there is not much difference between joint tenancy owners and tenants-in-common.

Christians and Muslims hold properties as tenants-in-common or as joint tenants and partition of
such immovable property can happen by mutual consent or by partition deed or by court decree
or arbitration.

Partition in Hindu law covers two aspects. One is the division of the status of the members and
the other is the division of the joint family property. In the former case, the members are divided
according to heir standing in the joint family and in the latter case division of joint family
property into separate shares. Share of a member depends on the status he enjoys in the family.
These are interlinked. Partition must be according to law. If a minor gets less shares than he is
entitled to in law, the partition is defective and he can re-open the same when he attains majority.
If a member gets more than his share in a property, the excess received will be treated as a gift.

It is not necessary that all co-owners agree to partition. When a member desires partition, the
property is divided into two portions one for the separating one according to his status and share
and the rest jointly for the others. Though oral partition is allowed under Hindu Law, it is not
preferable as it may give rise to disputes particularly with respect to immovable properties. It is
advisable oral partition should be reduced in writing (palupatti). Also, the Income Tax Act does
not recognize oral partition of a Hindu Family property unless the Income Tax Officer is
satisfied with the facts and this is possible only when it is recorded in partition deed..

EFFECTS OF PARTITION

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When a property is divided into more than two parts, the co-owners of the different portions shall
agree to hold their portions separately as absolute owners and each of them shall make a grant to
release his share from portions give to others. Necessary covenants in a partition deed are about
encumbrances on the property, quiet enjoyment, custody and production of title deeds, easements
of necessity payment of rent and taxes and performance of other conditions of lease, if any, etc.

Partition of joint property is not an exchange. If it is reduced into writing, it must be registered in
case of immovable properties. Deed of partition requires registration. Mere writing of previous
partition does not require registration. Mere list of properties allotted to different co-owners does
not require registration. Unregistered deed of partition though not admissible in evidence to
prove the fact of partition, cannot be used to prove that a particular property was allotted to a
particular co-owner as his share.

Partition means collapse of joint ownership. It destroys the harmony of joint ownership and of
possession. A large property falls into pieces over a generation or two. The land is very much
there in bits and pieces in the name of different owners.

Partition under Hindu Law

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Meaning

The Mitakshara lays down: “Partition is the adjustment of the diverse interests regarding the
whole, by distributing them into particular portions of the aggregate.”

Thus according to Mitakshara partition is used in two distinct senses; firstly, the adjustment into
specific shares the diverse rights of the different members according to the whole of family
property; secondly; the severance of joint status, with the legal consequences resulting there
from”. Partition has been defined as “the crystallization of the fluctuating interest of a
coparcenary into a specific share in the joint family estate”.

Partition reduces the members to the position of tenant-in-common requiring only a definite,
unequivocal intention on the part of member to separate and enjoy his shares in absolute
severality. As soon as the shares of the coparceners are defined, the partition is deemed effected.

It is not necessary that there should be an actual division of the property by metes and bounds.
Once the shares are defined, there is severance of joint status. The parties may then make a
physical division of the property or they may decide to live together and enjoy the property in
common. 

There is no need of any consent by other members nor a decree of a Court or any other writing is
necessary for partition. The Karnataka High Court in B. Bassamma v. K.B. Sadyajathappa has
held that severance of status is brought about when shares of coparceners are crystallized by
defining their share and once that is done the mere fact that they continued to stay together in the
same house would not by itself make any legal impact on the severance of the status already
brought about as subsequent conduct of the parties would only pertain to the domain of mode of
enjoyment of the properties.

Once the members of the joint family or the heads of the different branches of the coparcenary
agree to specification of shares, the same can be treated to result in severance of joint status,
though the division by metes and bounds may take later on. The Kerala High Court reiterated
that the actual physical division or partition by metes and bounds is not an essential ingredient
for the purpose of effecting severance in status.

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Persons who have right to partition

The general rule that every coparcener has a right to partition subject to two exceptions:
1. Unqualified coparcener has no right to partition
2. Sons cannot claim partition against their father if the latter is joint with his own father.

1) Father:- Father has not merely a right to partition between himself and his sons can also
effect partition among his sons. Every father can make partition of his self acquired
property also (means distribution of his property as per his wishes).
While doing this consent of sons is immaterial. Father can impose partition partial or total, even
between minor sons and himself. But this act of him must be bonafide. Otherwise minor son after
attaining majority can file for reopen of partition.

2) Sons, Son’s Son, Son’s Son’s Son:- Every S, SS, SSS are entitled to partition but under
Bombay School when father is joint with his father or brothers consent of father is
essential.
If joint family consist of father and sons then son can ask for partition.

3) Son born after partition:- Smritikaras has different opinions on this.

Vishnu and Yajnavalkya – Partition should be reopened and share has to allot to after born son.

Manu, Gautama, Narada – after born son could get share of his father alone.

Mitakshara school formulated a general procedure by applying both principles but in different
situations.

i) Son conceived at the time of partition but born after partition (unborn son)
When person is in mother’s womb under Hindu Law for many purposes equivalent to born child.
When mother is pregnant partition has to postponed until delivery. But if coparcener does not
want to postpone then has to reserve a share to unborn son and go for partition otherwise child
(son) can file a suit for reopen of partition after his birth.

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ii) Son begotten and born after partition (after born son)
If any son born after partition and he was not even in mother’s womb then the following rules
apply.
a) When father has taken his share in partition then he becomes coparcener only in father’s share.
b) When father has not taken his share then after born son has a right to get partition reopened
and get the estate redistributed.

iii) If father renounces his share

When father renounces his share, son born after renouncement is not entitled to get any right in
the joint family. He will be remained as coparcener in father family.

iv) Adopted Son

Position of adopted son also differs with situation.
a) When there is a subsequently born natural son.
b) When there is no subsequently born natural son.

When natural son born after adoption then adopted son interest differs from school.

Right of Adopted son

1) Bombay and Madras School – 1/5 of estate
2) Benaras School - ¼ of estate
3) Bengal School - 1/3 of estate

But presently by virtue of Hindu Adoption & Maintenance Act 1956, Adopted son is entitled to
equal share with natural son.
v) Son of void & voidable marriage

Since son of void & voidable marriage is not coparcener, he cannot sue for partition.

vi) Illegitimate son

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Any category of illegitimate son is not entitled for partition because he is not a coparcener.

vii) Minor and lunatic coparcener

No difference between major and minor son, lunatic or physically deformed son all are entitled
for partition and if proper partition is not made by not giving equal shares to them. Coparcener
can challenge and reopen to partition.

viii) Absent Coparcener

Any coparcener who is absent at the time of partition, a share to be allotted to him until he
specifically renounces his interest. If share is not allotted he can also challenge and get the
partition reopened.

Right of female:-
As already mentioned no female has right to partition but certain females are entitled for shares if
partition is effected.

1) Father’s wife, mother and grandmother is entitled to share as per Hindu women’s Right to
Property Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share
at the time of partition she is entitled to take the extent of her husband share.

2) Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind
widow, she took his share at the time of partition she is entitled to take the extent of her husband
share. Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving
behind widow, she took his share at the time of partition she is entitled to take the extent of her
husband share1.

 Modes of partition 
1
Hindu women’s Right to Property Act 1987
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Partition by Mere Declaration:

Partition under the Mitakshara law is severance of joint status and as such it is a matter of
individual volition. An unequivocal indication of desire by single member of joint family to
separate is sufficient to effect a partition. The filing of a suit for partition is a clear expression of
such an intention.

The oral or written communications by a coparcener could be enough to sever the joint status but
the communication could be withdrawn with the consent of other coparceners and with its
withdrawal partition would not take place.

 Partition by Will:

Partition may be effected by a coparcener by making a will containing a clear and unequivocal
intimation to the other coparceners of his desire to sever himself from joint family or containing
an assertion of his right to separate. In Potti Laxmi v. PottiKrishnamma 2, the Supreme Court
observed, “Where there is nothing in the will executed by a member of Hindu coparcenary to
unmistakably show that the intention of the testator was to separate from the joint family, the
will does not effect severance of status.”

Partition by Agreement:

An unequivocal expression of the desire to use the joint family property in certain defined shares
may lead the members of joint family to enter an agreement to effect a partition. The two ideas,
the severance of joint status and a de facto division of property are distinct. As partition under
the Mitakshara law is effected on severance of joint status, the allotment of shares may be done
later. Once the members of joint family or heads of different branches of the coparcenary agree
to specification of shares, the same can be treated to result in severance of joint status though the
division by metes and bounds may take place later on.

Partition by Arbitration:

An agreement between the members of joint family whereby they appoint an arbitrator to
arbitrate and divide the property, operates as a partition from the date thereof. The mere fact that
2
1965 AIR 825, 1965 SCR (1) 26
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no award has been made is no evidence of a renunciation of the intention to separate. Where all
the coparceners jointly have referred the matter relating to the partition of their shares in the joint
family to an arbitrator, this very fact expressly indicates their intention to separate from joint
status. In such cases even if award is not given, their intention is not dissipated.

Partition by Suit:

Mere institution of a partition suit disrupts the joint status and a severance of joint status
immediately takes place. A decree may be necessary for working out the resultant severance and
for allotting definite shares but the status of a plaintiff as separate in estate is brought about on
his assertion of his right to separate whether he obtains a consequential judgment or not.

So even if such suit was to be dismissed, that would not affect the division in status which must
be held to have taken place when the action was instituted. Ordinarily a partition is affected by
instituting a suit to this effect. In case of a suit for partition in joint status, father’s consent to the
suit for partition is no longer necessary. The son is fully eligible to file a suit for partition even
during the lifetime of father.

Exception:

The general rule mentioned above will not apply where a suit is withdrawn before trial by the
plaintiff on the ground that he did not want separation any more. In such a case there would be
no severance of joint status. Where the suit is proved to be fraudulent transaction resorted to with
an intent to create evidence of separation, no severance in the joint status takes place. If the
defendant dies and the suit is withdrawn on that ground there is no separation

Difference between partition under the Hindu Law and that under the Income-tax Act: –

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There is a difference between a partition under Hindu Law and a partition recognised under the
Income-tax Act.

Though the concept of partition is the same under Hindu and tax laws, in two respects,
recognition of partition under tax laws differs from that under Hindu Law.

For recognition of partition under Hindu Law division of properties by metes and bounds is not
necessary. However, for recognition of partition under tax laws, division of properties by metes
and bounds is necessary.

Again under Hindu Law partial partition is recognised. However, in view of provisions of
S.171(9) of Income-tax Act, 1961, partial partitions will not be recognised for tax purposes.

Right to claim Partition: –

Under the Hindu law, any co-parcener can make a claim for partition.

Necessity of other co-parceners to agree in order to entitle a co-parcener to claim for a partition:-

It is not necessary that other co-parceners should agree to the partition sought by one of the
coparceners.

But merely because one member severs his relations with others there is no severance between
others. 3The other members continue to remain joint.

3
{CIT vs. GovindlalMathurbhaiOza – [1982] 138 ITR 711 (Guj.)}

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Partition on death of co-parcener:-

A partition is an act effected inter vivos between the parties agreeing to the partition. A death of
partner cannot bring about an automatic partition and on such a death, the other surviving
members continue to remain joint. However under the provisions of 56 of Hindu Succession Act,
there is a deemed partition for a limited purpose of determining the share of the deceased co-
parcener for the purpose of succession under the Act.

Right of minor to claim partition:-

A minor can claim partition through his guardian. A reference in the above regard can be made
to the decision of the Supreme Court in the case of ApoorvaShantilal Shah vs. CIT 4

Eight of wife of Karta to claim partition :-

As per Hindu law, the ordinary rule is that a partition can be claimed only by a coparcener and
wife not being a coparcener she cannot ask for partition.

Certain States including Maharashtra have brought amendment to the Hindu Succession Act,
1956, conferring co-parcenery rights to daughters and as such they can claim partition.

Validity of partition between widow-mother and sole surviving coparcener-son: –

A wife or mother has no right to claim partition, but if a partition is effected a mother or the wife
gets a share equal to that of the son.

Equal distribution of Share among sons by Karta Father: –

4
[1983] 141 ITR 558 {SC}.

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A father in his right as patria potetas or otherwise can effect a partition between himself and his
son of the joint family property of HUF. However, he has to allot equal shares to the sons.

The father is expected to act bona fide and only aggrieved party can seek relief by way of
appropriate proceedings. However, till such a partition is held invalid by a competent court, it
must be held as valid.

ApporvaShantilal Shah vs. CIT [1983] 141 ITR 558 (S. C.)

Ownership of Property received by a member on a total partition of HUF:

The property received by male member on total partition will retain its character as a joint family
property. If he is single, it will be HUF property on the marriage.

The authorities in this regard are :–

[a] CIT vs. Arun Kumar Jhunjhunwala and Sons [1997] 223 ITR 45.

A sole member can constitute a HUF on marriage.

[b] CIT vs. RadheShyamAgarwal [1998] 230 ITR 21 (Pat).

Position when the wife of the karta also been allotted a separate share of property:-

The property of the wife of the Karta will be her individual property. There is a difference of
opinion among the Courts as to whether she continues to be a member of her husband’s HUF
after allotment of a share to her on partition.

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Partition is not transfer:-

The Supreme Court in the case of CED vs. KanhlalTrikamlal 5observed that partition is really a
process in which and by which a joint enjoyment of the property is transformed into enjoyment
in severalty. Each one of the sharers has an antecedent title and therefore, no conveyance is
involved in the process, as confirmed of new title is not necessary. This decision is an authority
for the proposition that no conveyance is required for a partition, but not for whether there is a
transfer involved in a partition.

In the case of KalooramGovindram vs. CIT 6the Supreme Court did not give any opinion as to
whether a partition constitutes a transfer within the meaning of Transfer of Property Act. But
according to Andhra Pradesh High Court in the case of Dwarka Prasad vs. CED 7has given final
authority that in partition there is no transfer.

Some practical Question

Question:-

If a house-property belonging to an HUF is divided (in 4 portion) and then transferred to Karta
and his 3 sons, what will be the tax impact of this transaction in the hands of HUF and each of
the co-parcener?

Answer:-

The house property is a capital asset. Its transfer result in capital gains which is chargeable to tax
under the I T Act. However, transfer of assets from HUF to its members is special case. There is
express provision under the I T Act which says that the distribution of capital asset on total or
partial partition of HUF is not regarded as transfer for the purpose of I T Act. The said provision
contained in section 47(i) of the I T Act is as under:

5
[1976] 105 ITR 92, 101 (S. C.)
6
[1976] 105 ITR 92, 101 (S. C.)
7
[1968] 67 ITR 281 (AP) the Supreme Court in 57 ITR 335
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“47. Nothing contained in section 45 shall apply to the following transfers :(i) any distribution of
capital assets on the total or partial partition of a Hindu undivided family;”

The partition in Hindu law is effected by a definite and unequivocal indication of a coparcener’s
intention to separate. Similarly, a partial partition is effected by a definite and unequivocal
indication of the coparcener to partition a particular business or property of the joint family
leaving the other assets as joint family property. Therefore ,it is very important to understand
word “total or partial partition”. In that case only, distribution of assets is not regarded as transfer
and no capital gains occur in hand of HUF. However, in individual’s hand there is no taxable
income in any case on transfer of house property from HUF.

Physical division of property by way of book entries not permissible :-

Where a property is capable of physical division, the partition must be made by physical division
only. If the property of the HUF does not admit of physical division, the property must be so
physically divided as much permits. For example, it is not expected that the utility of the
property is lost by compelling a physical partition and in such a case, the property may be
divided physically to the extent possible.

This is rule in section 179 to make a valid claim for recognising the partition for Income-tax
purposes.

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Basically, a partition can be made orally and there is no requirement in law that the partition
must be evidenced by a written agreement. Even a partition of immovable property of HUF can
be through an oral agreement [PopatlalDevram vs. CIT [1970] 77 ITR 1073 (Orissa).]

Entries showing division of the property in books of account may be good evidence of a partition
more particularly in cases where the property may not be capable of physical division.

For example, it has been held that a business cannot be partitioned by metes and bounds. [R.B.
BansidharDhandhania vs. CIT [1944] 12 ITR 126 (Patna)] Therefore, where a business of HUF
was partitioned by well defined shares and partnership formed was held valid.

Therefore, where credit balances in capital account in books of firm in which assessee HUF was
a partner is partitioned, it was held that there was a valid partition. [MotilalShyam Sunder vs.
CIT [1972] 849 ITR 186(All).]

In the case of CIT vs. K. G. Ramakrishnier [1963] 49 ITR 608 (Mad.), the Madras High Court
held that an asset which is not capable of physical division can be partitioned by making entries
in books. Here, entries relating partition were passed in books of HUF and not the partnership
firm where HUF was a partner. The partition was held valid.

Procedures for recognition of partition:-

The HUF, which has been hitherto assessed, must make a claim to the assessing officer that the
HUF properties have been subjected to total partition.

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The Assessing Officer will make an inquiry in to the claim after giving notice to all members of
the HUF and if he is satisfied that the claim is correct, he will record a finding that there was a
total partition of the HUF and the date on which it has taken place.

PARTION IN FAMILY BUSINESS PARTNERSHIP AND NOTIONAL PARTITION

Partition for conversion of family business into partnership:-
A business cannot be partitioned by metes and bounds. This is the observation of the Patna High
Court in the case of R.B. BansidharDhandhania vs. CIT [1944] 12 ITR 126 (Patna). Here, the
business of HUF was partitioned by well defined shares and partnership formed was held valid.

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It may however be noted that a partition can be effected orally. Subsequent entries in the books
of account are good evidence of partition. The Bombay High Court in the case of CIT vs.
ShiolingappaShankarappaMendse and Bros. [1982] 135 ITR 375 (Bom.) had occasion to deal
with a case where there was a partition of HUF and subsequent formation of a partnership firm
by the erstwhile members of the HUF. Transaction of partition was evidenced by book entries.
Partnership was held valid.

Where, however division of property (business) of HUF was not effected properly, the claim that
business of HUF was converted into that of partnership firm was not upheld and the income from
the business was held assessable in hands of the HUF itself. {Kaluram& Co. (HUF) vs. CIT
[2002] 254 ITR 307 (Del.)]

Order u/s 171 not required where a HUF has not been assessed to tax:-
The wordings of section 171 show that the section has no application to a HUF, which has not
been hitherto assessed. The authorities in support of this proposition are :–

CIT vs. Kantilal Ambalal (HUF) – [1991] 192 ITR 376 (Guj.)
Addl. CIT vs. Durgamma (P) – [1987] 166 ITR 776 (A.P.)
CIT vs. Hari Krishnan Gupta – [2001] 117 Taxman 214 (Del.)

Reference may also be made in this regard to the decision of the Supreme Court in the case of
Roshan Di Hatti vs. ITO – [1968] 68 ITR (SC)/Sir Sunder Singh Majithia vs. CIT –8
Validity of Penalty on HUF after a total partition:
The provisions of section 171[8] gives the mandate to an assessing officer to levy penalty on a
HUF disrupted after partition.

The levy of such penalty has also been upheld by the Allahabad High Court in the case of CIT
vs. Raghuram Prasad [1983] 143 ITR 212 {All}.

Where a coparcener with only his widow as legal heir dies, could a partition be deemed as
between the surviving coparcener and the widow on his death? :

8
[1942] 10 ITR 457 (PC).

21
Where a deceased dies issueless leaving a widow there is no question of a deemed partition u/s. 6
of the Hindu Succession Act. This is the finding of the Gujarat High Court in the case of
Bhartiben S. Jhaveri vs. CED [1999] 238 ITR 995 (Guj). The reason being there is no
coparcenery with only one male.

A similar ratio was held by the Allahabad High Court in the case of CED vs. Smt. S. Harish
Chandra [1987] 167 ITR 230 {All} that proviso to section 6 of the Hindu Succession Act does
not come into operation where there is no coparcenary in existence at the time of the death of the
male member.

Responsibility to pay Tax After partition of an HUF up to the date of partition:-

As per section 171 [6], every member of the HUF before partition shall be jointly and severally
liable for the tax on the income assessed of the HUF. The same section empowers the assessing
officer to recover the tax due on completion of the assessment on the disrupted HUF from every
person who was member of the HUF before partition.

Further, as per section 171[7], the several liability of the member shall be computed according to
the portion of the joint family allotted to him at the time of the partition.

It may however be noted that joint liability of the member is personal and distinct from the
personal and several liability as found by the Supreme Court in the case of Govindas vs. ITO
[1976] 103 ITR 123, 132 {SC}. As such a member of a HUF before partition is not personally
liable, after partition in respect the liability of HUF, ex-members liability is personal.

Also, unlike the several liability, the joint liability is not limited to the asset received by the
member on partition as noticed by the Supreme Court in the case of Addl. ITO vs. A.S.
Thinmaya [1965] 55 ITR 666, 671 {SC}.

Notional partition: –
Under the provisions of section 6 of the Hindu Succession Act, 1956, where a Hindu male dies
intestate on or after 17th June 1956, having at the time of his death an interest in a Mitakshara
coparcenary property leaving behind a female heir of the class I category, then his interest in the
coparcenary property shall devolve by succession under that Act and not by survivorship. The
interest of the deceased will be carved out for devolution as if a notional partition had taken
place before the death of the deceased. This is the concept of notional partition.

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Notional partition and destruction of the family:-
The notional partition only crystallises the share due to the female heir and does not disrupt the
joint family.

A direct authority can be found in the decision of the Supreme Court in the case of State of
Maharashtra vs. Narayan Rao Sham RaoDeshmukh, which is reported in [1987] 163 ITR 31
{SC}, wherein it was held that the purpose of section 6 is only for ascertainment of the share of
the female heir and unless the share is given away, the same cannot be excluded from the assets
of the HUF.

The Gujarat High Court in the case of CWT vs. Chandrasinhrao D. Gaikwad [1999] 237 ITR 875
came to the same conclusion without referring to the above decision of the Supreme Court.

In fact, the widow of a deceased coparcener is entitled to the share of the deceased in a Hindu
individual family governed by Mitakshara Law according to section 6 of Hindu Succession Act,
1956 continues to be member of HUF until she files suit for partition.

[GurupadKhandappaMagdum vs. HirabhaiKhandappaMagdum [1981] 129 ITR 440 (S.C.)

followed in Kishandas vs. CWT [2000] 243 ITR 307 (A. P.)]

Notional partition exist under the Income-tax Act:-

In order that a claim for partition has to be recognised under the Income-tax Act, the claim for
partition must fulfil the condition laid down in section 171.

A mere notional partition by operation of a statute like the Hindu Succession Act, 1956 is not
sufficient for recognising a partition under the Income-tax Act.

This is the dictum of the Patna High Court in the case of CIT vs. R.B. TunkiSahBaidyanath
Prasad [1991] 189 ITR 351 {Patna] approved on facts by the Supreme Court in 212 ITR 632
{SC}.

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HOW TO FILE A PARTITION SUIT IN INDIA

In this blog I shall be discussing about the process and procedure to file a partition suit in India.
Who can file a partition suit? What are the documents required while filing a partition suit? Time
taken to file a partition suit. Court fee required.

The following topics shall be covered

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1. What is partition

2. What is the governing law related to partition?

3. Who can file a Partition Suit?

4. What are the documents required to file a partition suit?

5. Is there any Limitation Period in a partition suit?

6. What are the procedure and process to file a partition suit in India?

7. What is the time taken to file a partition suit?

8. What is the Court Fee required?

WHAT IS PARTITION?

The term ‘partition’ means to leave or to part of with a whole. Partition generally means a
division. Ie.To give a part of something to someone. Or in other ways to divide a whole into part
of parts, each of which would be separate having its own existence is called partition.

The term ‘partition’ in law means:

To divide or to separate any real property by way of a court order or to divide any concurrent
estate into portions which are separated and each one of them represent the proportionate interest
of the owners of the property.

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WHAT IS THE GOVERNING LAW RELATED TO PARTITION?

The Law relating to property and partition of property is governed by the following Acts [in case
of Hindu’s

1. The Hindu Succession Act, 1956

In the case of partition in a Hindu Joint Family.

2. The Hindu Undivided Family [HUF] and The Hindu Partition Act of Property 1892

In case of partition of any property which is owned jointly by either two or more than two co-
owners.

WHO CAN FILE A PARTITION SUIT?

The law of India has not laid down any statutory guideline as to who can or who cannot file a
partition suit in India. Going by that logic there is no restriction imposed upon a person
restricting him or her to file a partition suit.

A partition suit can be filed by anyone [such person may or may not have any contingent or
vested interest in the property and still has the rights to file a partition suit].

Any or all the Co-Owners of the property in question can file a partition suit.

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Even if there are several heirs and not all of them are willing to take part in such partition suit it
is not required that all of the heirs need to participate. Any one of them or all of them can file a
partition suit.

It is also immaterial whether you have the documents of the property for which you are seeking
partition. You can obtain the certified copies of the same and a Market Value Certificate from
the Sub – Registrar’s office. You shall also require the death certificate of your
parents/grandparents from the concerned municipal authority.

HOWEVER, IT MUST BE NOTED THAT

A PARTITION SUIT CAN BE FILED ONLY WHEN A LEGAL NOTICE HAS BEEN SENT
FOR THE SAME AND SUCH LEGAL NOTICE HAS NOT BEEN ACCEPTED TO OR
REPLIED BACK WITH WHICH SHALL BE TREATED AS DISREGARDED IN THE EYES
OF LAW.

IT IS ONLY UNDER SUCH CIRCUMSTANCE THAT A PARTITION SUIT IS PROCEEDED

WITH.

WHAT ARE THE DOCUMENTS REQUIRED TO FILE A PARTITION SUIT?

As has already been mentioned above that for filing a partition suit there is no mandatory rule or
bye law which states that one should have the documents in hand to prove or to file a partition
suit. Even if a party does not have the relevant documents, he or she has the complete rights to
file a partition suit and it is after filing of the suit that makes the other co – sharer liable to prove
the following:

1. That such property upon which you have filed a partition suit does not belong to you.

2. That you have received your rightful part from such property and as such is not entitled to
any further partition rights.
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HOWEVER, TO BE ON THE SAFER SIDE

The party who files such partition suit is/are advised to keep the following documents in place
before filing a partition suit. They are:

1. Certified Copies/Original Copies of all the title deeds of the property/properties which you
are claiming to be as an ancestral property.

2. A proper description of the property/properties which shall include the following

i. Area

ii.Location

iii.Geographical Boundaries

iv. Survey Numbers

v. Any other property detail

3. Valuation of the property/properties upon which you have decided to file such partition suit.
[The valuation of the same must be done by the Sub – Registrar of these property/properties]

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IS THERE ANY LIMITATION PERIOD IN A PARTITION SUIT?

YES, the partition of a property is barred by the law of limitation and is governed by The
Limitation Act.

Accordingly, the limitation period to file a partition suit is 12 years.

Such 12 years shall begin when the adverse claim to the plaintiff or to the co-owners is notified
to the world at large.

The calculation of 12 years shall begin since then and not earlier than that.

However, it is the burden of the opposite party to prove that such partition suit is time barred and
they need to mention the same in their written statement.

Simply mentioning that the suit is time barred does not make any difference until and unless it is
proved by way of facts and evidence that such suit is time barred and the same is proved by way
of evidence.

PROCEDURE AND PROCESS TO FILE A PARTITION SUIT IN INDIA

To file a partition suit or so to say to file any kind of suit in India, there is a process which is
required to be followed. If such procedure is no followed then due to failure of not following
such procedures the suit may be dismissed on the grounds that the procedure was not followed.

The steps to be followed are given below.

1. Filing of Suit/Plaint – A plaint in a normal man’s language is the complain or the

allegations which are made. They are then typed and printed in the format prescribed by the

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court and also aligned accordingly. Such plaint needs to be filed before the limitation period
comes into play or else such suit shall be time barred. All the relevant details such as

Ø Name of the Court

Ø Name of the Parties to the suit

ØAddress of the parties

Ø Nature of such complain etc

Must be mentioned in the Plaint.

2. Vakalatnama/Power of Attorney – A Vakalatnama or as is more precisely called “Power of

Attorney” in the State of West Bengal is a power which is required by an Advocate from its
client to represent them in their matter. A Power of Attorney is a power which entitles the
Advocate to fight out your case and represent himself as your duly assigned agent. It is a must
required document without which no Advocate has the permission to represent his client.

3. Payment of Court Fee – Every suit which is entertained in a court requires the full payment
of proper court fee before it is submitted. Therefore, the payment of proper and accurate court
fee is another major criterion. The amount of the court fee varies in different cases and differs
from state to state. Henceforth, proper and accurate court fee shall be submitted and pasted
wherever necessary.

After all the above process are over the court shall fix up a date for “Hearing” on such date the
court shall entertain the suit and decide whether it has merits to proceed further or not. Based on
the merits and discretion of the court the court shall either

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Ø Allow the Suit

Ø Disallow the Suit

If in case the court finds that there are merits in the suit then it shall allow the suit to be
entertained. However, if the court finds no merits then it shall dismiss such suit without calling
the opposite party/respondents.

4. On the day of hearing only if the court feels that the case has merits then it shall upon its
own discretion issue notice to the opposite party and ask them to appear in the court on such next
date which is fixed by the court itself.

5. The plaintiff in the meanwhile is required to do the following

Ø He should file the proper amount of court fee

Ø File the proper copies of the plaint in the court [Remember for every defendant, 2 copies need
to be submitted one which will go by Speed Post and one by Ordinary Post.

6. Filing of Written Statement [W.S.] – Upon the receipt of notice the Opposite
Part/Respondent is required to appear in the court and in the meanwhile is also required to file
his Written Statement. Such written statement is a reply to the plaint and in other words can be
called as a defense of the Opposite Party. Such written statement shall be filed within 30 days of
the receipt of the notice which can be further extended to a period of 90 days [only if the court
permits]. Such Written Statement shall explicitly deny the false allegations in the Plaint. Any
such allegation which is not explicitly denied will be deemed to be accepted.

7. Replication – A replication is a reply of the written statement submitted by the opposite

party/parties. Such replication shall also explicitly deny all the allegations which are falsely put
by the Opposite Party/Parties and any such allegation which is not explicitly denied shall be
deemed to be admitted. Once a replication is filed, the pleadings are said to be complete.

8. Filing of other relevant documents – Once the pleadings are over both the parties are given
an opportunity from the court to file all relevant and necessary documents to justify their claims.

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Both the parties have an option to object documents with relevant reasons.

Every document which is rejected or not admitted is returned to the party who was filing it.

All such documents which have been filed shall be served to the other party/parties as
photocopy/xerox.

9. Framing of Issues – Once the above process is complete, the court frames certain issues
upon which the subject matter of the case is decided. These issues are the basic problems and the
solution of those will give a clear picture to the court as to decide the matter. The court upon
passing the final order shall deal with each issue separately

10. List of Witness/Examination of Witness

11. Final Hearing – On the day fixed for the final hearing, both the sides shall argue and put
forward their views. Such arguments shall be strictly related to the issues framed by the court.

After hearing the arguments of both the sides the court shall pass a “Final Order” either on that
very day or else the

12. Taking the Certified Copy of the Order

WHAT IS THE TIME TO TAKEN TO END A PARTITION SUIT?

A minimum time period of 3 years is required to for passing of the decree/judgement.

It will take a minimum of 2 years’ time to get a preliminary decree and thereafter another one
year is allowed by the court to get the share in the property.

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This makes the minimum time period as 3 years. However, depending upon the complexity of
the matter such time period can extend.

The above-mentioned time period is the minimum and holds no guarantee. I have mentioned this
in my blog so that people who are reading the same get an idea of the minimum time period
which may be required to end a partition suit.

WHAT IS THE COURT FEE REQUIRED?

The determination of Payable Court Fee is not standardized and differs from state to state basis.

The amount of court fee to be paid also differs upon the amount of the partition suit.

Thus, Court Fee is determined on the following basis

1. Amount of the Suit [it may vary from certain fixed court fee per
100/1,000/10,000/1,00,000etc] OR

2. A fixed amount per certain sum [Say 50,000/- for 25 lac] OR

3. A fixed percentage per certain sum [Say 2% of total suit value]

4. Court Fee also varies from to state to state as they have various amendments for the same.

For the purpose of a partition suit one needs to pay court fee of Rs. 500/-

If there is an injunction sough for, then, additional court fee of Rs. 50/- is required to be paid.

@Once the Judge has delivered the Order, every shareholder has to pay a sum of Rs.500/- as
court fee contributing to their share.

@In a suit for partition where

@There is separate possession of a share of any joint family property or of any property owned
@Whether jointly or in common by the plaintiff whose title to such property is

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@Either Denied

@ Has been excluded from the possession of the property

In such cases the court fee shall be calculated upon the Market Value of the share of the plaintiff.

@ Whereas In a suit for partition and separate possession of joint family property or property
which is

@Owned Jointly OR

@In Common

Who is:In joint possession of such property

Then, the court fee shall be paid on the following basis:

Plaintiffs Share [In Rs]

Rs. 3000/- or Less

Rs. 15/- [Court Fee]

Plaintiffs Share [In Rs]

Rs. 3000/- to Rs. 5000/-

Rs. 30/- [Court Fee]

Plaintiffs Share [In Rs]

Rs. 5000/- to Rs. 10,000/-

Rs. 100/- [Court Fee]

Plaintiffs Share [In Rs]

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Above Rs. 10,000/-

Rs. 200/- [Court Fee]

Conclution

A partition is generally irrevocable. However as mentioned above there could be situations

where a reopening may be advisable. It may be imperative to have a redistribution of the
properties in order to prevent gross injustice to the members of the family. An additional
distribution was also advised by Manu where more property was subsequently added or
discovered.

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The researcher has tried his level best to dig deep into the project topic and do justification to it.
The Researcher has also acknowledged and cited all the source authentically as far as possible.

It was really an enriching experience to work on the above dimensions of Family Law, which the
researcher is quite sure to have led to opening of new windows for thought , and rejuvenation of
the grey cells. He requests to encourage such endeavours even in future.

Hope you have liked the project, and any deterrence to the enjoyment due to the researcher’s
fault is deeply regretted.

BIBLOGRAPHY

 Davis, Jr. Donald R. 2004. “Dharma in Practice: Ācāra and Authority in Medieval
Dharmaśāstra,” Journal of Indian Philosophy
 Creese, Helen. 2009a. Old Javanese legal traditions in pre-colonial Bali. Bijdragen tot de
Taal-, Land- en Volkenkunde
 Fuller, C.J. 1988. "Hinduism and Scriptural Authority in Modern Indian Law."
Comparative Studies in Society and History

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  Hooker, M.B., ed. 1986. The Laws of South-East Asia. Volume 1: The pre-modern texts.
Singapore: Butterworth & Co.
 Jain, M.P. 1990. Outlines of Indian Legal History. 5th Ed, Nagpur, Wadhwa & Co.

Aggarwal,RK. Hindu law, Central Law Agency

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