PARTITION UNDER HINDU LAW

5.3 FAMILY LAW II

SUBMITTED BY-

DIWAKAR CHIRANIA

(SM0116018)

THIRD YEAR, FIFTH SEMESTER

FACULTY IN CHARGE-

MRS. GITANJALI GHOSH

(Assistant Professor of Law)

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

1st November, 2018

 CONTENT

Table of Cases………………………………………………………………………………………

List of Statutes………………………………………………………………………………………

Table of abbreviations………………………………………………………………………………

Abstract……………………………………………………………………………………………..

Introduction…………………………………………………………………………………………

Aims………………………………………………………………………………………………...

Objective……………………………………………………………………………………………

Scope and Limitations………………………………………………………………………………

Literature Review…………………………………………………………………………………...

Research Questions…………………………………………………………………………………

Research Methodology……………………………………………………………………………..

Mode of Citation……………………………………………………………………………………

Subject Matter of Partition………………………………………………………………………….

Persons who have a right to Partition and a share on Partition……………………………………..

How Partition is Effected?.................................................................................................................

Reopening of Partition………………………………………………………………………………

Reunion……………………………………………………………………………………………..

The position of female members in a Hindu Joint family………………………………………….

Conclusion………………………………………………………………………………………….

Bibliography………………………………………………………………………………………..
 INDEX OF AUTHORITIES

TABLE OF CASES

Brajananda Pradhan v. Sachinanda

Sadhuram v. Durga Prasad
Chinthamani Ammal v. Nandgopal Gounder
Ramalakshmi v. Sivamantha
Govind v. Trimbak
Champaklal Chimanlal v. Sodager Amubhai
Damodaras v. Uttamram
Venkareddi v. Venku Reddi
Rajagopala v. Venkataraman
Vaidyanatha v. Aiyasama

Raghunath v. Ramakant

Neelkant v. Ramchandra

Babuna v. Jagat Narain

Sachidanand v. Ranjan

LIST OF STATUTES

1. Hindu Succession Act, 1925

2. Hindu Succession (Amendment) Act,2005

TABLE OF ABBREVIATIONS

AIR All India Reporter

Art. Article
Anr. Another
J. Justice
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
UOI Union of India
Vol. Volume
v. Versus
 ABSTRACT

The institution of the Hindus has always been a unique one. A Hindu joint family plays a vital role
in the life cycle of Hindus. This Hindu joint family is composed of a common ancestor and all his
male lineal descendants together with their wives or widows and unmarried daughters up to any
generation. In the joint family, the idea of the son's birthright in the family property is discussed
by the mitakshara concept of the coparcenary. This birthright is not only enjoyed by the son, but
also the son’s son or such other connections in the family. The members who enjoy this birthright
are termed as coparceners. It can be however noted that all the members of the coparcenary have
the right to call for partition subject to certain exceptions.

The research paper infers shortly what partition is, how and who can affect a partition and claim
for a share in the property of the joint family. This paper also throws light on aspects which focuses
on how already affected partition can be reopened. It also discusses the role of female members
in the joint family.

INTRODUCTION

The division of the property thereby bringing an end to the Hindu joint family is what the concept
of partition deals with. There is a transformation from the family being a joint one to turning into
a nuclear one. Partition necessarily means to secure the shares of each coparcener. The coparcenary
adjoints the property as one unit.

According to the Mitakshara law, it is the adjustment of the diverse interests regarding the whole,
by distributing them into particular portions of the aggregate. Thus, partition implies the
crystallization of the fluctuating interest of a coparcenary into a specific share in the Hindu joint
Family.

• De jure Partition

The status of interest of severance is brought upon by De jure partition. This generally happens
when the common interest is broken by either by the agreement of all the parties involved or can
happen at the will of even one of the coparceners. After the partition takes effect, the shares of
each coparcener get clearly demarcated and are no longer in a state of fluctuation.
• De facto Partition

A partition by metes and bunds can be termed as a de facto partition. It takes effect only when the
unity of possession is broken. The respective shares of the coparceners become their exclusive
share only after the de facto partition.

The term “Partition” basically means the severance of status or interest according to the Mitakshara
school of law. The division of property in a specific share is not a necessity for the partition to be
affected. All it requires is a definite and unequivocal intention of any one of the members of the
joint family who is a coparcener to affect partition. Thus, it can be concluded that a partition can
be deemed to have been completed by the severance of the status that is a de jure partition.

However, in the case of Brajananda pradhan v. Sachinanda, the high court of Orrisa held that a
suit for the partition of the joint family property cannot be dismissed on a ground that a prior
partition of the property has already taken effect. Hence, the suit was decreed. 1 It shall also be
noted that the fact of the prior partition must be proved.2 If a plea for a partition is raised, it has to
be supported by the evidence because of the general presumption in that of a jointness. Even
separate possession by co-sharers may not, by itself, lead to a presumption of partition.3

AIM(S)

The aim of this project titled Partition under Hindu Law is to understand the concept of partition
and subject matter of partition. At the same time, it’s main aim is to study how the partition takes
effect and the safeguards that should be kept in mind by the coparceners and third parties.

OBJECTIVES

• To understand the concept of partition.

• To study the subject matter of partition.
• To study how partition is effected.
• To study what safeguards should be kept in mind by coparceners and third parties.

SCOPE AND LIMITATIONS

1
Brajananda Pradhan v. Sachinanda, AIR 1990
2
Sadhuram v. Durga Prasad, AIR 2006
3
(2007) 4 SCC 163
The scope of the paper is limited to the concept of partition under Hindu Law.

LITERATE REVIEW

Books:

1. Sir Dinshah Fardunji Mulla, PRINCIPLES OF HINDU LAW, 21st Edition, 2010, Lexis Nexis

This Book is one the most important and relevant book on Hindu Law. In this book the author
gives a detailed description of the various concepts related to hindu law and also provide
explanation of certain provisions with the help of examples and case law. This book covers almost
all the relevant information required for making this project.

2. Dr. Paras Diwan, FAMILY LAW, 10th Edition, 2013, Allahabad Law Agency

The author is this book has described hindu and muslim family law in this book. This book
provides us with valuable insight of the subject matter. The most important aspect of the book is
that every concept of Hindu Family law has been explained in a very simple manner in this book
which makes very helpful for getting a complete analysis of a various important concepts of hindu
family law.

RESEARCH QUESTIONS

1. What is the concept of Partition under Hindu law?

2. How can It be effected?

3. What are the different ways in which a partition can be initiated?

4. What is re-opening of partition?

RESEARCH METHODOLOGY

The project is doctrinal in nature that is further descriptive, comparative as well as analytical in
nature. However, the majority of the project is descriptive in nature. The sources of data used are
mainly primary in nature. Various books were referred to get the data essential for the project.
Also, several web sources were used to get a better insight of the topic.
MODE OF CITATION
The researcher has used the template given in the Research Template given in the National Law
University and Judicial Academy, Assam. The mode of citation is used according the the
template available on the Intranet NLUJAA.

SUBJECT MATTER OF PARTITION

The property owned the entire joint family excluding the personal property of the coparceners can
be subjected to partition.4 Also, certain properties which is in the possession of joint family by
obtaining a permanent lease is also available for partition although lease might get terminated
under certain circumstances.

Properties which are not capable of Division

There may exist certain types of property which are incapable of being divided due to their nature.
When the joint family owns a property of indivisible nature, for example- animals, furniture etc.
It may be valued and retained by one of the coparceners or exclusively and the total value of such
property can be credited from his share or the coparceners can choose to liquidate the property and
divide whatever amount it fetches according to their share in the joint family property. In the
presence of a will, such a property can be enjoyed the coparceners jointly or in turns.5 If a portion
of land is used as a common passage for the coparceners and such a land on reservation by a decree
in a suit for partition, in a situation none of the coparceners would be entitled for the partition of
such a piece of land.6

Family idols and places of worship cannot be partition as they are not divisible in nature. The
possession of such a property can be held in turns, or if the courts deems it fit it can direct any
senior member of the family to keep possession while allowing other members open access to such
properties.7

Property available for partition

4
(1872) 14 MIA 570
5
(1912) 36 Bom 275
6
(1944) Bom 619
7
(1893) 17 Bom 271
The first step in determining the amount of property available for partition, provisions for the debts
of the entire joint must be made which would be paid off using the joint family property, further
the debts of the karta which are not immoral in nature should also be accounted.8 Also a provision
should be created for dependent female members and for the marriage expenses of unmarried
daughters.

For the marriage of male members of the family, the judicial committee has stated that since a suit
for partition by any member of the family leads to the severance of the joint family status, an
unmarried male member of the joint family will not be entitled for a provision to be made for
covering his marriage expenses during partition even if he marries before a decree in the suit is
passed.

However, in the case of unmarried daughter she is entitled to a provision being made in the decree
from the joint family property for her maintenance and marriage expenses.9

Funeral ceremonies of mother

According to the hindu law, it is mandatory for the sons to perform at their expense the last rites
of their widowed mother even if the mother has left behind stridhana, in which case the stridhana
will be passed on to her daughters. If during the partition no provision was made for covering the
expense of such ceremonies and in such circumstance if one of the son pays for the rituals by
himself then he would be entitled to get such contributions from his brothers.10

8
(1927) 50 Mad 535
9
(1947) 51 CWN 829 (PC).
10
(1909) 32 Mad 431.
 PERSONS WHO HAVE A RIGHT TO PARTITION AND A SHARE ON PARTITION

As a general rule, under both the Mitakshara and Dayabhaga schools, it is a right of every
coparcener to ask for partition and is hence entitled to a share in the property of the joint family.
A minor is also entitled to partition.11 Except the coparceners no one else has the power to seek
partition. After the amendment act of 2005, a daughter are also coparceners and has a right to seek
partition of the property. No other female has the right to ask for partition, but, if the partition takes
place, there are certain female members who are entitled to a share in the property such as father’s
wife, mother and grandmother. Under the Hindu Succession Act, when a coparcener’s interest
devolves by succession by virtue of the application of Section 6, widow, daughter, mother,
predeceased son’s daughters, and widow, predeceased son of a predeceased son’s widow and
daughter, pre-deceased daughter’s daughter are the females who are entitled to a share, and they
can get their share demarcated by partition. However, when the widow under the Hindu Women’s
Right to Property Act, or a female under S.6 Hindu Succession Act, 1956, or the alienee of
coparcener’s undivided interest files a suit for partition, such partition is entirely different than that
made at the instance of a coparceners. In such circumstances, the severance of status does not take
place.

Further, according to the general rule, the right of every coparcener to his share is subjected to two
exceptions: Firstly, an unqualified coparcener has no right to partition, and Secondly, in the
Bombay school, sons cannot ask for partition against their father is the latter in sharing a joint
property with his own father.12

Father

The father has not merely the right of partition between himself and his son but also has the power
to effect the partition among sons inter se. Under Mitakshara school father does not only have the
power to distribute his separate property but also distribute the joint family property. This is last
survival of the father’s absolute power. No other person has this type of power. The consent and
dissent of son is immaterial regarding this. He should act in a good intention, he should not be
unfair to anyone while partitioning the property.

11
AIR 1991 Pat 159.
12
Dr.Paras Diwan, FAMILY LAW, 10th Edition, 2013, Allahabad Law Agency, p.433
Son, Grandson and Great-Grandson

According to the mitakshara school, Son, Son’s Son, Son’s Son’s Son have a right to partition.
However, in the Bombay school the son has no right to partition without the agreement of his
father if the father is having property jointly with his father, brother or other collateral.13

Son born after partition

There are conflicting views regarding the status of share of a son born after partition. According
to Vishnu and Yajnavalka, a partition should be re-opened so that a share can be given to a after-
born. On the contrary Gautama, Manu and others had a view that the son could be given the share
of his father alone. The Mitakshara clears the air by stating that the latter text gives a general rule,
while the former lays down established rule which can be applicable to a son in the womb at the
time of the partition. On this basis, there are two rules, firstly for the son in the womb of his mother
during the time of partition and latter rule for the son which comes out of the womb after the
partition takes effect.

Adopted Son

The Dharmashastra talks about the position of adopted son in two different contexts. Firstly, when
there is a subsequently born (aurasa) natural son of his father. Secondly, where there is no such
son. According to the dharmashastra it is said that the status of the latter is same as that of a natural
born (aurasa). Thus, though he has the same rights to a partition but he takes a lesser share. The
amount of share varies from school to school.

The Hindu Adoptions and Maintenance Act, 1956, has codified and reformed Hindu law of
adoption. Section 12 of the Act lays down that an adopted child shall be deemed to be the child of
his or her adoptive father or mother for all purposes...It is submitted that this provision could be
marshalled to establish equality between the adopted son and the “aurasa” son in partition also.14

Illegitimate Son

13
AIR 1991 Bom 10
14
Paras Diwan, FAMILY LAW, 10th Edition, 2013, Allahabad Law Agency, p.435.
Illegitimate son can be further divided into two categories: (a) The Dasiputra or a son born to a
concubine, (b) an illegitimate son born from a women who is not a dasi.

There is position is explained below-

An illegitimate son of both the categories is not entitled to a partition or a share in partition among
the first three classes as he is not a coparcener, but he will be entitled to maintenance.

Among the sudhras, the dasiputra has a superior position. A dasiputra does acquire any interest in
the property of the joint family by birth, hence he cannot ask for a partition but the father has the
power to give him a share during his lifetime and that share can also be equal to that of a legitimate
child.

Persons entitled to share when a partition takes effect

A hindu joint family consist of several members who do not have any right to partition but are
entitled to a share when such a partition takes effect. Such members are father’s wife, mother and
grand-mother.

When there is a partition of joint family property between the coparceners, example- Partition
between father and the son; the father’s wife will be entitled to a share which is equal to that of his
son. In a scenario where there is more than one wife, then each of the wife will be entitled to a
share that is equal to that of a son. Also, such a right is conferred only in the Mitakshara school
whereas the wife does posses such a right under the Dayabhaga school.

Mother

A widowed mother gets the same share as her son during the partition of the joint family property.
Also, a stepmother who is childless who is childless will be entitled to same amount of share as
that of the son.

Grandmother

In the mitakshara school, the paternal grandmother and step grandmother are entitled to a share on
partition if her son is dead and the partition is taking effect between her grandson’s then she would
be entitled to a share equal to that of her grandson. Further, she is entitled to a share when a
partition takes place between her sons and the son of a deceased son.15 But there are contradicting
views regarding amoung the different high court regarding the allocation of share to grandmother
when there is a partition between her son and his sons, while the Allahabad and Bombay high court
are against the allocation of shares to the grandmother the Calcutta and Patna counterpart are have
held in separate cases that the grandmother must be allocated a share. The last decision proceeds
on a text of vyasa which allows her a share on such a partition.

HOW PARTITION IS EFFECTED

Partition basically means severance of status and division of property by metes and bounds.

Severance of Joint Status or interest

A clear and unequivocal expression by words or conduct of an intention to partition is necessary

to bring about a Severance of joint status. The severance of status takes place on the expression of
interest or agreement by the members of the joint family for the partition of property. In
Raghvamma v. Chanchamma,16 the supreme court said that there must be intention, indication or
representation of an intention to partition though in what form the manifestation of an intention is
made will depend upon the circumstances of each case. The reason for severance does not need to
be assigned by the coparcener asking for partition. Also the motive is irrelevant. However, an
expression of intention to partition must be a conscious and informed act.

Presumption of Non-Partition

It is a well-established rule that if a person alleges that the partition has already taken place then
he must prove it.17

Mode of Partition

partition can be made by a definite, unambiguous declaration of intention by any coparcener to

separate himself from the family. If this is done, it would amount to division of status, whatever
mode may be used, partition may be effected by institution of a suit, by submitting the dispute as
to division of the properties to arbitration, by a demand for a share in the properties, or by conduct

15
(1928) 50 All 532
16
AIR 1964 SC 136.
17
AIR 1979 SC 300
which evinces an intention to sever the joint family; it may also be effected by agreement to divide
the property. But separate enjoyment for the sake of convenience is not a partition. Thus, deepening
a well, laying underground pipes, getting a loan on the security of portion in one’s possession is
not adequate proof of partition.

Partition by suit

When a coparcener files a suit for partition, it amounts to an unequivocal intimation of the intention
to sever, and consequently, ' severance of status takes place from the date the suit is instituted. A
decree may be necessary for working out the result of severance, i.e., for the division of property
by mates and bounds, but severance has taken place as from the date of the filing of the suit and
not from the date of the decree. Decisions taking the view that the partition is effected by a decree
of the court are wrong.

Partition by Notice

This is another way in which severance of the joint family status can be effected. For such a
partition to happen a coparcener must send a notice to the other coparceners where he has to
mention his interest of enjoying a separate share of the property or in severalty.

Conversion to another faith

When a coparcener converts to any other religion, an automatic severance of status of that member
with others happens. This does not amount to severance of status amount other members inter se.
From such a date when the conversion takes place the person ceases to be a coparcener of the
family. The person will receive a share of the joint family property as it is stood on the date of the
partition.

Partition by Agreement

A partition can be affected between the members of the joint family by agreement. The privy
council in the case of Approvier v. Rama, said that an agreement between the coparceners to hold
and enjoy the property in definite shares as separate owner operates as a partition although there
might not been an actual division of shares.
Oral Partition

The fact that oral partition can be validly made has been established by a long list of cases. Also,
in one of the landmark cases of Privy council, Rewan Prasad v. Mst. Radha, it was established that
a division of joint family property can be effected without having any instrument in writing.

Partition by arbitration

Another mode of partition is a partition by arbitration. An agreement between the members of a

joint family whereby they appoint an arbitrator to arbitrate and divide the property among
themselves, the severance of the joint family status takes place from the date such an agreement.18

REOPENING OF PARTITION

According to the Shastric law, Manu has once said ‘Once a partition is made, once a damsel is
given in marriage and once a gift is made is irrevocable and irretraceable.’

A partition is considered in general as irrevocable. The reason for such a though is such that each
coparcener holds their shares separate and as an exclusive property and they might enter into
individual transactions relating to such property, further creating titles in the name of third parties.

However, there exists certain exceptions to the principle that shares can only be divided once. In
certain cases it becomes a necessity to redistribute the properties such as to prevent gross injustice
from happening. But such a plea claiming the partition to be unfair must be supported by facts and
evidence to show that there was some mal intention in the severance of the joint family status and
further partition of the joint family property. Thus, entire partition must be reopened when there is
no scope of readjustment.

REUNION

To constitute a reunion, there must be an intention of the events to reunite in estate and interest. It
is implicit within the thought of a reunion that there might be a contract between the events to
reunite in an estate with an intention to revert to their former popularity. No writing is essential for
a reunion. Humans who were parties to a registered partition deed may reunite by way of an oral
contract. Considering that a contract to reunite is integral, coparcener cannot be deemed to be

18
https://www.braineryadviser.com/2018/02/partition-modes-partition-Hindu-law.html
reunited through the mere withdrawal of the unilateral statement of the intention to separate which
had resulted within the division of status. When a reunion is tried to be centered by using implied
agreement, the behavior must be of an incontrovertible character and the burden lies closely on the
person who asserts reunion. “The merely undeniable fact that parties who've separated, are living
together or exchange collectively after the partition, just isn't ample to set up reunion.” The burden
of proof whether or not reunion has taken situation is on the person who alleges reunion.

THE POSITION OF FEMALE MEMBERS IN A HINDU JOINT FAMILY

From the date of the commence of the Hindu Succession Amendment Act, 2005; the daughters
shall become coparceners by the virtue of their birth in the joint family, she would be entitled to
the same rights as conferred by other coparceners and would also be subjected to same liabilities
as that of a son.

Also, she would be a coparcener irrespective of her marital status. However, this amendment also
has a limitation that the amendment is prospective in nature and hence doesn’t apply to cases where
an undivided coparcener has died prior to the amendment.19

19
http://www.legalserviceindia.com/articles/hsa_w.htm
 CONCLUSION

After studying the topic “Partition Under Hindu Law” the researcher has concluded that the
severance of the joint family property leads to partition. Such a partition is irrevocable in nature.
However, if an injustice occurs during the time of partition then for the purpose of equity and
justice of other coparceners it is advisable to reopen the partition already effected. Even, in the
ancient Manusmriti it is recommend the additional distribution of property which has been added
subsequent to the partition. The reason given behind this is to prevent gross injustice to the
members of a joint family.

Further, the amount of shares of a coparcener is always in a state of fluctuation till the partition of
the joint family is effected owing to the rules laid down in sec 6. Of the Hindu Succession Act.

This research paper tries to cover almost every important aspect related to the partition under hindu
law.
 BIBLIOGRAPHY

Books:

• Saxena Poonam Pradhan, Family Law II, Lexis Nexis, 3rd Edition, 2011
• Desai Satyajeet A., Principles of Hindu Law, Lexis Nexis, 21st Edition, 2010
• Narayana P.S., Hindu Law, Asia Law House, 1st Edition, 2011
• Diwan Paras, Family Law, Allahabad Law Agency, 10th Edition, 2013

Web Sources-

• https://blog.ipleaders.in/reopening-of-partition/
• https://www.braineryadviser.com/2018/02/partition-modes-partition-Hindu-
law.html
• http://shodhganga.inflibnet.ac.in/bitstream/10603/189726/6/chapter%202.pdf
• http://14.139.60.114:8080/jspui/bitstream/123456789/63/1/014_1965_Hindu%20Law
.pdf