RESEARCH PAPER OF FAMILY LAW

ON THE CONCEPT OF PARTITION

NAME- ADITI SINGH

ENROLLMENT NO. – 00316503518

BATCH- 2018-2023

COURSE- BBA LLB (2nd YEAR)

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INTRODUCTION

Partition, is an act by which a coparcener severs his relations with joint family and loses his
status of coparcener and becomes an independent individual from the links of joint family.
An important consequence of such partition is that the share of coparcener or coparceners
seeking partition which is till partition uncertain, fluctuating and unpredictable, becomes
specific and definite, as a result of partition, and thus allotted to the respective members.

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

According to Lord Westburn- there are two stages in partition under Mitakshara

1. Division of Right – Ascertaining and fixing with an intention to become separate, the
share to which each coparcener is entitled.
2. Division of property- Actually making off, and assigning portions of the erstwhile
joint estate to individual coparcener in portion to the share of each.

Under the Dayabhaga law, it means division of property in accordance with the specific share
of the coparcener. It means, splitting up joint possession i.e. parting or dividing the share
among coparcener according to metes and bound. Division of property in accordance with the
specific share of the coparceners. Under the Dayabhaga the essence of coparcenary is unity of
possession, while in Mitakshara it is unity of ownership. Under Dayabhaga Law, every adult
coparcener whether male or female is entitled to enforce partition.
Persons not entitled to enforce partition under the Dayabhaga Law are:

1. Sons, Grandsons and great grandsons have no birth interest in ancestor property

against their father, so there is no right for partition.
2. It considers the illegitimate son of shudra becomes a coparcener with legitimate sons
when they inherit the property after the death of the father.
3. Father’s wife-no such right

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 4. Childless step mother no entitle to a share after partition

PROPERTY LIABLE FOR PARTITION

It is only the coparcenary property which is subject to the partition. The separate property is
not liable to partition at all, as it belongs absolutely to the owner thereof.

Secondly, the property to which the law of primogeniture applies, cannot be divided, e.g., a
Raj. Nor can family idols and place of worship can be divided. Similarly, the following
properties are not liable to partition:

1. Impartible estate i.e., property which descends to one member only, either by custom
or under any provision of law or by terms of grant.
2. Property indivisible by nature, e.g., ponds, staircase, passage
3. Family idols and relies which are object of warship
4. Separate property of a member
5. The places of worship and sacrifice or the property which has been dedicated to
religious and charitable purposes.
6. The well and the rights to draw water from the well
7. The ornaments and the dress materials given to the wives of the coparceners

Manu says- following properties are not subject to in division

1. Properties indivisible by nature like Dress, vehicle, Ornaments, Cooked food, Water
and female slaves, as road, garden, utensils, documents, right to way, furniture etc.
2. Properties meant for pious use, or scarifies, object for worship.3.
3. Separate property of a member

In respect of those properties three methods of adjustment are available-

1. may be enjoyed by coparcenary by jointly or by turn

2. May be allotted to the share of coparcener and its value adjusted.
3. May be sold and distributed the incident

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DEDUCTIONS AND PROVISIONS

Some provisions must be made out of the property liable to partition before any partition is
affected.

1. Debts incurred for joint family.

2. Personal debts of the father not incurred for illegal or immoral purposes.
3. Maintenance of dependent female members and disqualified heirs.
4. Marriage expenses of unmarried daughters of the last male holder but not of the
collaterals.
5. Expenses for the funeral ceremony of the widow and the mother of the last male
holder.

PERSONS WHO ARE ENTITLED TO DEMAND PARTITION

Every coparcener has a right of partition and entitle for share in partition.

1. Father- he can impose a partition, partial or total between his minor son and himself
with bonafide intention, else, it will reopen. In case of major son and father, it should
be by mutual consent.
2. Sons and Grandsons, and grate grandson. Under Bombay School, the son has no right
partition without the assent of his father, if the father is joining with his own father
and in case of Punjab Customary Law, as under Punjab Customary law son have
no right by birth.
3. Son Born after Partition- according to Vishnu and Yajnavalkya the partition should be
re-open to give the share after born son. However, Gautama, Manu, Nerada says the
after born son could get the share of his father alone

According to Mitakshara we have few rules for this-

1. Son conceived at the time of Partition but born after it – person in the womb is
equated the person exist. The tax lay down that if the pregnancy is know the partition
should be postponed till the time child birth, if the other coparceners are not ready for
this a equal share should be reserve if the child born son share should be allowed to
them, in case female it should be expand on her marriage.

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 2. Not in the womb when partition take place if the pregnancy is not known and no share
has been reserved then the partition should be re-open after childbirth.
3. When Father has taken his share in the partition- son become the coparcener with his
father.
4. When Father has not taken his share in the partition – son has a right to reopen the
partition and get his share.
5. Adopted Son- he has right if partition take place after adoption, but if partition
take place before adoption, he has no right.
6. Illegitimate Son- not entitle for partition and share but for maintenance only.
7. Son void marriage and annulled marriage-not entitle.
8. Minor Coparcener- no distinction between major or minor.

PERSONS NOT ENTITLED TO PARTITION BUT ENTITLED FOR SHARE AFTER

PARTITION

No female has a right to partition but if partition takes place, some female (father’s wife,
mother and grandmother) has a right for share in partition. However, after 2005 amendment,
daughters are also entitled for it.

MODES OF PARTITION

It is not necessary under Hindu law’ that the partition should be executed by a registered
instrument. Even a family compromise between the coparceners would be sufficient to affect
a partition and by virtue of that they become entitled to individual share and use thereof.

 According to Supreme Court, partition may be partial or total. Partition could be partial with
respect to the members of joint family or joint family property. When a partition takes place,
the presumption is about the total partition. But where some members contend that the
partition was partial with respect to members or property, onus is on them to prove it.

A partition can be affected by the father even during his lifetime among his sons. A partition
could also take place by:

(i) agreement,
(ii) institution of a suit to that effect,
(iii) arbitration.

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It is not necessary for partition that the joint family property is divided by every bit of it. The
severance in the joint status could be brought about by any of the above mode and some
property could be used by the coparceners as joint tenants. The following modes of partition
are important: —

1. By 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 affect 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.

It is not necessary that there should be a partition by agreement. It can take place by an act or
transaction of coparcener, by which there could be an indication of the separation of his
interest. What type of act, conduct or expression of intention would disrupt joint status, will
be decided on the basis of facts in each case.

Where the communication of the intention to separate has been given with an intent to give
only a threat to it without any real desire to this effect and later on the intention is not
perused, it would not be enough for severance. There would be no separation on account of
the fact that some one of the members of joint family has filed a suit to get a declaration of
insolvency for himself. In absence of any joint property mere communication of the intention
to separate would be enough.

In Raghvamma v. Chenchemma1, the Supreme Court laid down that it is settled law

that a member of joint Hindu family can bring about a separation in status by a
definite declaration of his intention to separate himself from the family and enjoy
his share in severalty. Severance in status is brought about by unilateral exercise
of discretion.

1
1964 AIR 136, 1964 SCR (2) 933

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One cannot, however, declare or manifest his mental state in a vacuum. To declare is to make
known, to assert to others. ‘Others’ must necessarily be those affected by the said declaration.
Therefore, a member of a joint Hindu family seeking to separate himself from others will
have to make known his intention to the other members of the family from whom he seeks to
separate. The process of manifestation may vary with circumstances.

It is implicit in the expression ‘declaration’ that it should be to the knowledge of the persons
affected thereby. An uncommunicated declaration is not better than a mere formation or
harbouring of an intention to separate. It becomes effective as a declaration only after its
communication to the person or persons who would be affected thereby.

The Supreme Court in Puttorangamim v. Rangamma2, reiterated that

“it is, however, necessary that the member of the joint Hindu family seeking to
separate himself must make known his intention to other members of the family
from whom he seeks to separate. The process of communication may vary in the
circumstances of each particular case. The proof of a formal despatch or receipt of
the communication by other members of the family is not essential, nor its absence
fatal to the severance of the status.

It is of course, necessary that the declaration to be effective should reach the person or
persons affected by some process appropriate to the given situation and circumstances of the
particular case”.

“It is, of course possible for the members of the family by a subsequent agreement to reunite,
but the mere withdrawal of the unilateral declaration of the intention to separate, which
already had resulted in the division in status, cannot amount to an agreement to reunite.”

The Patna High Court laid down that for separation a division of property by metes and
bounds is not necessary, there must be unequivocal declaration by a member to show that he
separated from the rest of the family.

There is no need of giving a written notice by one coparcener to the other coparcener. The
expression of the desire of a coparcener to separate can be inferred from the cognate

2
1968 AIR 1018, 1968 SCR (3) 119

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circumstances. An undivided coparcener cannot merely by declaration and definition of his
share in a deed of transfer executed by him validly make a transfer of a share to which he
would have been entitled if he had affected a partition before making the transfer.

The unequivocal intention to separate has to be communicated to the other coparceners in

order to affect a partition by severance of status. A severance of status is not brought about by
transferring a certain specific share in joint family property.

(2) Partition by Will:

Partition may be affected 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. Potti
Krishnamma3, 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 affect severance of status.”

An ineffective will, sometimes though not always, if otherwise consented by all adult
member’s may be effective as a family arrangement but as the father of a joint Hindu family
has no power to impose a family arrangement under the guise of exercising the power of
partition, the power which undoubtedly he has but which he had failed to effectively exercise,
cannot in absence of consent of all members bind them as family arrangement”.

Where partition takes place on an unilateral will of a coparcener, it cannot be brought to an

end by revocation of the will. The same consequence will follow where a desire to severance
has been expressed by the guardian of a minor coparcener and the court has upheld its
propriety.

(3) Conversion to another Faith:

Conversion of a coparcener to any other religion or faith operates as partition of the joint
status as between him and other members of the family. The coparcener, who has converted,

3
1965 AIR 825, 1965 SCR (1) 26

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no longer possesses the right of survivorship as he ceases to be a coparcener from the
moment of his conversion and he takes his share in the family property as it stood at the date
of his conversion. Reconversion of the convert to Hinduism does not ipso facto bring about
his coparcenary relationship in absence of subsequent act or transactions pointing out to a
reunion.

(4) Marriage under Special Marriage Act, 1954:

Marriage of a Hindu under the Special Marriage Act, 1954 causes severance of joint status. If
a Hindu marries a Hindu under Hindu laws, he will be the part of the family but if married
under special marriage act 1872 then the person was severed from the family. Later came into
force the special marriage act 1954 here also if a Hindu marries a Hindu under Hindu law and
subsequently gets registered under the special marriage act then he will be severed from the
family. Later in 1976 more importance was given to the religion of the person being married
and not the way the marriage takes place.

(5) 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 affect 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 affected 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.

In Approver v. Ram Subba Iyer4 the Privy Council had observed

that no coparcener can claim any defined share in the joint family property in a joint
family, but where the coparceners enter into an agreement to the effect that every
member will have a specific and defined share in future, the joint status is affected and
every coparcener acquires a right to separate his specific share and use the same to
exclusion of others.

4
AIR 1972 Mad 398

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(6) 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 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.

(7) Partition by Father:

The father may cause a severance of sons even without their consent. It is the remnant of the
ancient doctrine of ‘Patria Potestas’. The father during his lifetime is competent to effect such
partition under Hindu law and it would be binding on his sons.

It would be binding on the sons not because they have assented to it but because the father
has got the power to do so, although this power is subject to certain limitations on the basis of
its utility and general interest of the family. It has to be considered as to whether it is lawful
in accordance with the spirit of Hindu law or not.

According to Supreme Court’s decision is Kalyani v. Narayanan5,

a Hindu father under Mitakshara law can affect a partition among his sons even in
the lifetime of Karta of joint family and such partition would be binding on them. In
such a case he can define and specify his share along with his sons and
thus effectuate a separation among them. But in no case ho can divide the joint
family property among the different members by virtue of a Will, although he could
do it with their consent.

Where the father has divided the property unequally amongst his sons, then too it would be
binding. But no person can give his consent to the unequal share on behalf of a minor. The
sons have the right to challenge the unequal division of shares or an act of unilateral division
of shares by the father, but it will have no bearing on the severance of their joint status.

5
AIR 1980 SC 1173, 1980 Supp (1) SCC 298, 1980 2 SCR 1130

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Where the father has divided his self-acquired property unequally among his sons, it could
not be challenged by them, nor is there any need of a registered deed to this effect.

(8) 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.

When the plaintiff files a suit for partition the share which he received in the earlier partition
would not be free from charges and liabilities. If the creditors have obtained the decree
against the joint family property, then even that share of the plaintiff which he did not
receive, would also be liable in the same manner as that of the other coparceners.

The above nine modes of partition are not exhaustive. There may be other situations as well
which, if expressed in equivocal intention for partition, will be admissible.

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.

Mere institution of a suit for partition by a minor followed by abatement of the suit by death
of the sole defendant does not affect the severance of the joint status.

(a) Re-union:

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The leading text on re-union is the text of Brihaspati which says, “He who, being once
separated, dwells again through affection, with father, brother or a paternal uncle, is termed
reunited with him.”

A re-union can take place between persons who were parties to the original partition [Bala
Bux v. Rukhma6.

According to Mitakshara, re-union cannot take place with any person

indifferently but with father, a brother or a paternal uncle. According to
Dayabhaga also, a re-union is valid only with a father, brother or paternal uncle.

There is a difference of opinion between the different schools on the question whether any
two persons who were parties to the partition may reunite. According to Bombay and Mithila
schools any two persons who were parties to the original partition can reunite. According to
Banaras, Bengal and Madras schools reunion can take place only with the father, the brother
or uncle who has been expressly named in the text of Brihaspati.

No writing is necessary for a reunion. It may take place by verbal arrangement but
there must be an intention to reunite. Mere living and carrying on business together
is not conclusive evidence of reunion. [Bhabgati v. Murlidhar,7).

To constitute a reunion there must be an intention of the parties to reunion is estate and
interest. There can be no reunion unless there is an agreement between the parties to reunite
in estate with the intention to remit them their former status as members of a joint family. But
possession of family properties at the time of reunion is not essential. A minor cannot reunite
because he is not competent to contract.

EFFECT OF RE-UNION

The effect of reunion is to remit the reunited members to their former status as members of a
joint Hindu family. [Pran Krishan v. Mathur Mohan8],

The question is whether the property, which was formerly joint but was later on parted
as a result of partition will pass by survivorship or by inheritance. The majority of
6
(1903) 30 Ind App 130 ILR 30 Cal 725 (PC)
7
1943 A.L.J. 328 P.C.
8
(1865) 10 M.I.A. 403

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 High Courts are of the view that property will pass by survivorship like any other joint
family property.

There is no difference in coparcenary by birth and coparcenary by reunion. The special rules
of inheritance are applicable only to the separate property of the reunited members.

CONCLUSION

Partition is a concept under Hindu law and is regulated by mainly two schools of thought, i.e.
Mitakshara and Dayabhaga. Partition amongst a joint Hindu family means severance of status
of jointness and unity of possession among the members of the family. The partition can take
place by various methods like via agreement, arbitration, notice, will etc. Under Mitakshara
school, the partition may take place by stripes or by branch, however under Dayabhaga
school, partition takes place only after the death of the Karta, the dayabhaga school follows
no concept like coparcenary.

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