Study Material

B.A.LL.B (Hons) VIth Semester

Hindu Law-II
Name of the Subject Teacher- Shagufta Yasmin

Unit –II

PARTITION UNDER HINDU LAW

Introduction

Partition is an act by which a coparcener severs his relations with joint family and loses his status of coparcener. The
essence of coparcenary is unity of ownership. No undivided member in the coparcenary property has any specific
share in the property so long as the family is joint. 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.

Meaning of Partition

According to Webster’s Law Dictionary, the word “partition” means “a separation by a court of real estate owned
jointly into two or more separately owned parcels, so that each of the former joint owners may enjoy having his or
her own share in the estate”.

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.

Lord Westbury in Approvier v. Ram Subba Aiyer, held that “no individual member of the family, while it remains
undivided can predicate of the joint and undivided property that he, that particular member has a certain definite
share.

According to Dayabhaga, the partition consists in splitting up joint possession, i.e., separating the shares of the
coparceners or in others words dividing the property by metes and bounds among several co-sharers.

Subject matter of partition:

It should be understood that Coparcenary property is liable to partition. Separate property is not liable to partition at
all. It belongs absolutely to the owner there of. In Poonam Mishra vs Rajkumari Mishra, the High court has held that
property acquired subsequently even do with joint funds to be regarded as self acquired property and it has to be
excluded from partition.
Property incapable of division and rule of partition of such property
Properties to which the rule of primogeniture applies cannot be divided, e.g., a raj. Nor can family idols and places
of worship be divided. Certain kinds of properties are by their nature indivisible e.g., animals, furniture, etc. Their
value may be determined and distributed among the shares of some of those properties may be enjoyed by
coparceners jointly or by turns. Under this category properties like wells, idols and temples are included.
According to Manu, “a dress, a vehicle, ornaments, cooked food, water and female slaves, property distined for
pious use and sacrifices and a pasture land are indivisible.
Thus, there are several kind of kinds of properties indivisible by nature in respect of which an agreement has to be
reached so that they remain in the common use of all coparceners. For example, staircase, courtyards, tanks, roads,
right-of-way and the like are incapable of valuation or division.

Provisions to be made before a partition takes place

From the property liable to partition provisions must first be made for:-

1. debts incurred for joint family which are payable out of joint family property.
2. maintenance of dependent female members and disqualified heirs.
3. marriage expenses of unmarried daughters of the last male holder but not of the collaterals.

The amount of expenses must be commensurate with the wealth of the family there is no need for making
provision for the marriage of unmarried coparceners.

In Sankaranarayanan v. Official Receiver, Tirunelveli the Madras High Court has held that where the marriage
of a daughter is performed after filing the petition should but before the finalization of the said suit the amount
expended for the marriage of daughter is recoverable from the joint family property.
4. Expenses for funeral ceremony of the video and the mother of the last male holder.

After the above provisions as we have been made an account must be taken at the joint family property in the
hands of the manager and other members of the joint family it would also be noted that no charge will be made
against a coparcener, because a large share of the family income was spent on his family in consequence of his
having a large family to support.

Persons having Right to partition/ Entitled to a share on Partition

Every coparcener has right to partition and entitled to a share on partition:
1. Father: In exercise of this power the concept of son is immaterial. However, father must act bona fide. If
division made by him is unequal or fraudulent or vitiated by favoritism, partition can be reopene. the father
can’t exercise this power by ‘will’ except the son's consent.
2. Son grandson and great grandson: They have a right to partition. But, in Bombay school the son has no
right to partition without the assent of father if father is joint with his own father, brothers and other collaterals.
Under Punjab customary law also sons have no right to partition against their father.
3. After born sons and after born daughters of a coparcener -
After born sons we considered into two sets. Firstly, those born as well as begotten after the partition, and
secondly, those born after partition but begotten before it or those in their mothers womb at the time of
partition. A son in his mother's womb at the time of partition is treated, in point of law in existence and is
entitled to reopen the partition to receive share equal to that of his brothers. In the case of a son born as well as
begotten after the partition his father has taken a share for himself and separated from the other sons, then the
after born son is entitled to his father share at the partition and also his separate property to the exclusion of the
separated sons and is not entitled to reopen the partition. The same principle would now apply in case of a
daughter of a coparcener, who is a coparcener in her own rights after the commencement of the Hindu
Succession (Amendment) Act, 2005.
4.Illegitimate sons: An illegitimate son among three regenerate classes, having no vested interest in the
property, cannot demand a partition but he is entitled to maintenance out of his father's estate. The Madras and
Allahabad High court have held that the legitimate son of Sudra may enforces a partition against his legitimate
brothers but not against his father or father’s coparceners, as for instance, his father's brother or their sons. In
Bombay case also the same view was expressed. But the Calcutta High court has taken an opposite view. The
share of illegitimate son according to some is half of what it would have got had he been a legitimate son and
according to others his share is half of that of a legitimate son.
5. Widows: Widow though not a coparcener under Mitakshara law is entitled to obtain a share when the
property is made between the coparceners. However, she cannot demand for a partition.
6. Alienee: An alienee of coparcener’s interest, whenever such an alienation is valid, has also right to partition
in Smt. Kailashpati Devi v. Smt. Bhubaneswari Devi, the Supreme court held that the purchaser of joint
family property from a member of a joint hindu family may have the right to file a general suit for partition
against the members of joint family and that may be the proper remedy for him to adopt to effectuate is
purchase.
7.Female Sharers: The term female shares into three types of female members of coparcenary, namely (i) the
wife, (ii) widowed mother and (iii) paternal grandmother. These female shares cannot demand a partition nor
can they claim share upon a mere severance of a joint family status. They are, however, entitled to get their
share only when the joint family property is actually divided not on every partition but on some partitions only.
According to Mitakshara law except (Madras), a wife is entitled on a partition between her husband and his son
to share equal to that of a son, but she cannot enforce partition According to Mitakshara law, when a partition
takes place after the father's death between the son and the mother or step mother is entitled to share equal to
that of a son or stepson. Under Dayabhaga law, sonless widow is not entitled to a share on partition not nor a
stepmother entitled to a share if she has no son.
8. Adopted children an adopted children is treated as a natural born child and therefore he would be entitled to
demand partition anytime after adoption. Now, under the Hindu Adoption and Maintenance Act, 1956 and
adopted child is entitled to a share equal to that of a natural born child on partition.

Under Dayabhaga, every adult coparcener whether male or female has the right to enforce partition.
Sons, grandsons and great grandson of Hindu governed by Dayabhaga law do not take interest by birth in the
ancestral property and therefore not entitled to partition of ancestral property against him. For the same reason
no question of wife taking any share in ancestral property arises. The rights of a widowed mother under the
Dayabhaga law are the same as those and other Mitakshara law except in the following respects:
1. Under Dayabhaga law mother may inherit both in her own right as well as heirs of her deceased sons.
2. Under the dayabhaga law a sonless step mother is not entitled to a share on a partition between her step sons.

Who can sue for partition

1. Every adult coparcener- Every coparcener is entitled to sue for partition and is entitled to have a share on
partition. No other person has such right. Prior to the Hindu Succession (Amendment) Act 2005, females had no
right to demand partition. This Amending act has made the daughter of coparcenar, a coparcener in her own
rights and therefore she is now entitled to demand partition of the Mithakshara Coparcenary property and she
would get share equal to that of a son, when a partition takes place. Some other females (father's wife, mother
and grandmother) are also entitled to a share on partition. In Bombay, a son is not entitled to sue his father for
partition against his will .
In Ahar Hamir Duda v. Ahar Duda Arjan, the Gujarat High Court declared that in the case when the sun was
asking not only for severance of status but also for partition of the properties by metes and bounds without the
assent of his father, his father not having separated from his grandfather, the son was not entitled for partition
by his father.
2. A Purchaser of a coparcenary interest of a coparcener at a sale in execution of a decree- such a purchaser can
demand a partition.

Suit by Minor-
The Hindu law makes no distinction between a minor and major coparcenary so far as their rights to join
properties are concerned. A minors rights at partition are precisely those of a major. According to Gujarat High
court in K. Bankey Lal v. Babubhai, where any coparcener is minor he is still entitled to get partitioned from
joint family property if the minor has got any complaint he can reagitate the entire partition on ground that it is
inequitable or fraudulent.
At this stage it is necessary to examine the nature of the jurisdiction with the courts exercise when they decide
whether a suit is for the benefit of the minor or not. The theory is that the sovereign as parens patrie has the
power and is indeed under a duty to protect the interest of minors and this function has devolved to the courts.
In discharge of that function, therefore, they have the power to conduct all proceedings before then where in
minors are concerned. They can appoint their own officers to protect their interest and stay proceedings if they
consider that they are vexatoius. When, therefore, the Court decides that the suit has been instituted for the
benefit of the minor and partition is decreed by it, it is done so in the exercise of jurisdiction which is inherent
in it and which extends over all minors.
When the division in status takes place- The division in status takes place when there is unambiguous
declaration by a coparcener of his intention to separate and the very institution of a suit for partition constituted
the expression of such an intention. In a case where the suit is filed by a major coparcener, there is no difficulty
and intention to separate is clear when such suit is filed. The Supreme court in the case has held that this
principle can also be applied when the suit for partition is instituted by minor acting through his next friend.
Effect of the death of the minor during pendency of suit-
A suit for partition brought on behalf of minor coparcener in joint mitakshara family does not abate on death of
the minor before trial but it is open to his legal representatives to continue the suit and satisfy the court of the
institution of the suit was for the benefit of the minor, in which case, there would be division status from the
date of the plant and the interest of the minor in the joint family properties would devolve on his heirs.
Benefit to the minor-
Where the transactions, which adversely affected the interests of the minor entered by the karta of joint hindu
family prior to the birth of the minor a suit for partition on behalf of the minors on the basis of those transaction
which your pre judicial to minor's interest can be filed and such an action in seeking the partition would be for
the benefit of the minors.
Special power of father to effect partition- The father possesses a special power to affect partition between
himself and his sons even without their consent and he has also the power to affect a partition among the sons
inter se. It seems that the same right the father has now against the daughter also after the commencement of the
Hindu Succession (Amendment) Act 2005. The father has the power to divide the family at any time during his
lifetime without the consent of his sons and if he makes a division it has the effect of separating, not only the
father from the sun but also son also inter se.
The right is peculiar to the father alone, the grandfather has no power to bring about a separation among his
grandsons. The partition so made by him binds his sons, not because the sons are a consenting party to it, but
because it is the result of a power enforced by the father. The father can exercise this power only in his lifetime,
he cannot by his will direct a partition amongst his sons. No such power is vested in any other coparcener. The
father in exercise of this power can affect partial partition between his minor sons and himself. However, it is
necessary that he must exercise this power bonafide. If the partition effected by father is fraudulent, unfair,
unequal or vitiated by favoritism, it can be reopened

Modes of partition

1. Partition by mere declaration to separate: Partition under Mitakshara Law is a severance of joint status
and such it is a matter of individual volition. All that is necessary to constitute partition is a definite
unequivocal indication of his intention by a member of joint family to separate himself from the joint
family and enjoy his share in severalty. In Roopchand v. Indradur, the Madhya Pradesh Highcourt held
that mere admission that the four brothers were living separately in the same house and doing separate
business does not permit raising a presumption that there was a family settlement to deal with the property
independently of their shares.The communication of intention to sever must be communicated to all
 interested parties.
2. Partition by Notice: A severance of joint status may be affected by serving notice by a coparcener on
the other coparceners including his intention to separate and enjoy the property in several to your
demanding partition of the property
3. Partition by Will: Partition may be effected by a corparcener by making a will containing a clear and
unequivocal intimation to his coparceners of a desire to sever himself from the joint family or containing an
assertion of his right to separate.
4. Conversion to another faith: Conversion of a coparcener to any other religion operates as partition of
the joint status between him and other members of the family.
5. Marriage under special marriage act 1954: Marriage of Hindu under Special Marriage Act causes
severance between him and the other members of the family.
6. Partition by Agreement: The true test of partition being the intention of the member of joint family to
become separate owners, it follows that an agreement between the members of the joint family to hold
and enjoy the property in certain defined shares as separate owner operates on partition, although the
property itself has not been actually divided by metes and bounds.
7. Partition by arbitration agreement: An agreement between the members of a joint family whereby
the appoint an arbitrator to arbitrate and divide the property operates as a the partition from the date
thereof. The mere fact that no award has been made is no evidence of the renunciation of the intention
to separate.
8. Partition by father : The father may also cause the severance of the sons without their consent. It is
remnant of the ancient doctrine of ‘Patria Potestas’ (paternal power). Hindu father under Mitakshara
Law can demand for partition along with his sons in presence of the karta of the family and thus can
bind the sons by partition.
9. Partition by Suits: The institution of suit for partition ipso facto effects severance of joint family
status and as such the institution of such a suit effects immediate severance of joint status. A decree
may be necessary for working out the resultant severance for allotting definite share but the status of
the plantiff as separate in estate is brought about on his assertion of his right to separate whether he
obtains a consequential judgement or not. Their lordships of the Supreme court held in Girjanandani v.
Brijendra that partition may ordinarily be affected by the institution of suit.Iin case of suit for partition
in joint status father’s consent to the suit for partition is no longer necessary that the sun is fully
eligible to file a suit for partition even during the lifetime of his father .
The modes of partition provided here are not exhaustive there may be other circumstances which if
indicated unequivocal intention of partition will be admissible .

Partial Partition

A partition effected between coparceners by mutual agreement may be partial, either in respect of the property
or in respect of the persons making it.

I. Partial as to property: It is open to the members of a joint family to make a division and severance of interest
in respect of a part of the joint property, while retaining their status as a joint family, and holding the rest as the
properties of a joint and undivided family. But, once it is shown that the parties intended to sever themselves,
the joint status comes to an end, and even the property which remains undivided would lose its joint nature, and
the members of the family would hold it as tenants-in-common, unless there is a special agreement to hold it as
joint tenants.

II. Partial as regards persons:

 Just as a partition may be partial as regards the property, so it may be partial as regards the persons separating.
The rules of presumption regarding partial partition or otherwise, as laid down in several important decisions of
the Privy Council and the Supreme Court may be summed up as follows:

(i) The general principle is that every Hindu family is presumed to be joint, unless the contrary is proved.

(ii) But once it is proved that one member of the joint family has separated from the others, there is no
presumption that the rest continue to live jointly. The Privy Council has observed in Balabux v. Rukmabai,
(1903) 30 I.A. 130: “There is no presumption when one coparcener separates from the others, that the latter
remain united. An agreement amongst the remaining members of the joint family to remain united or to re-unite
must be proved like any other fact.”

But no express agreement is necessary for this purpose. The intention to remain joint may be inferred from their
conduct indicating such an intention.

The Supreme Court also has approved these principles in Bhagabati Prasad v. Dulhin Rameshwari, [(1951)
S.C.R. 603].

(iii) When there has been a separation between members of a joint family, there is no presumption that there
was a separation between one of the members and his descendant. (Haribaksh v. Babulal, (1924) 51 I.A. 153)

(iv) A Hindu father may be separated from his sons, and the sons may remain joint, or he may be separated
from his sons by one wife, and remain joint with his sons by another wife.

(v) In a suit for partition, the decree for the partition is the evidence to show whether the separation was only a
separation of the plaintiff from his coparceners or was a separation of all the members of the joint family from
each other. (Palani Ammal v. Muthuven Katacharla, (1925) 52 I.A. 83)

(vi) A renunciation, by a member, of his interest in the family property does not lead to the presumption that the
other members are separated.

Though a partition may be partial by mutual agreement of the parties, no coparceners can enforce a partial
partition against the other coparceners.

In K.T. Prasad v. C.I.T. [(1982) 1 S.C.C. 447)], the Supreme Court reiterated following basic principles of
partition and partial partition:

(i) When there is a partition, it is presumed that it was a total partition, both as to parties and property.

(ii) When there is a partition between brothers, there is no presumption that there has been a partition between
one of them and his descendants.

(iii) However, it is open to any person who alleges that a partition has been partial (either as to persons and as to
property), to establish that fact.

(iv) Hindu law does not require that, in every case of partition, the property must be partitioned by metes and
bounds. A declaration of intention by a coparcener to become divided brings about a severance of status, and it
is open to the parties to thenceforth enjoy their respective shares of the property as tenants-in-common.

Deemed Partition

Section 6(3) of the Hindu Succession Act, 1956 (as amended) provides as follows:
Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the
property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be
deemed to have been divided as if a partition had taken place
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the
time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have
got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of
the pre-deceased son or a pre-deceased daughter, as the case may be.
For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share
in the property that would have been allotted to him if a partition of the property had taken place immediately before
his death, irrespective of whether he was entitled to claim partition or not.
The explanation to Section 30 of the Hindu Succession Act, 1956 (as amended) also clearly states that the interest of
a male Hindu in a Mitakshara co-parcenary property shall notwithstanding anything contained in the Hindu
Succession Act, 1956 (as amended) or in any other law for the time being in force, be deemed to be property capable
of being disposed of by him.
Therefore, on the death of a member of a joint Hindu family, his share in the family property will not pass on to the
other members but will devolve as per the bequests made in his will or as per the rules of intestate succession that
would govern him. So, a member’s share in a joint Hindu family property can be bequeathed on the basis of a
notional partition.
Technically, no one should be able to claim against such a bequest, unless such bequest is challenged and an order is
decreed in favour of the person challenging it. In terms of the provisions of the Hindu Adoptions and Maintenance
Act, 1956, one cannot by will, so dispose of his property so as to defeat the legal rights of his wife or any other
person to maintenance.
Settling an important aspect of the Hindu Succession Act, a Division Bench of Justices B.N. Agrawal and P.P.
Naolekar said in an order "the operation of the notional partition should be only for the purposes of devolution of
interests of the deceased in the coparcenary property".

One Nagar Mal adopted Nemi Chand as his son. Mal died in 1989 without a will and his two daughters claimed
equal share along with the adopted son Chand. Courts below accepted one-third partition of the properties amongst
all the three wards of the deceased.

On appeal, the Supreme Court said since Mal and Chand had formed the coparcenary, a notional partition should be
done as it having been effected just before the death of Mal.

The apex court concluded that 50 per cent of the property would have to be notionally partitioned between Mal and
his adopted son Chand on 50-50 basis and after the death of Mal his share of the 50 per cent property should be
divided equally amongst the three heirs.

In other words, the two daughters would be entitled to one sixth each of the suit property.

Re-opening of partition

According to Manu, "Once only a partition made". If the partition is once made, it is final and irrevocable and
hence, it cannot be re-opened. To this principle, there are the following exceptions. A partition can be re-
opened on the grounds of Mistake, Fraud, Son in Womb, Adoption, Disqualified coparceners, Son conceived
 and born after partition, Absentee coparcener; and Minor coparcener.
1. Fraud - In case the partition is found fraudulent, it can be set-aside and the person injured can claim to
reopen of the partition. For instance, Worthless assets are fraudulent misrepresented is valuable assets and are
distributed to a coparcener, he has a right to claim the reopening of partition.
2. Son in womb -At the time of partition, if a son is in the womb, and not share is reserved for him, he can get
the partition reopened.

3. Adopted son -In case if a window of a coparcener adopted a son after the partition, the adopted son is
entitled to re-open the partition.
4. Disqualified coparcener -A disqualified coparcener is one, who is deprived of his share at the time of
partition due to some disqualification/technical constraint. After the disqualification is removed, he can get the
partition removed.
5. Son conceived and born after partition - Where a father does not take share on the partition and a son is
begotten and born to him, the son can reopen the partition.
6. Absentee coparcener -Where a coparcener is absent at the time of partition and no share is allotted to him,
he can get the partition reopened.
7. Minor coparcener - When at the time of partition a coparcener is a minor if his interests are not properly
safeguarded he may reopen the partition.
Even when there is no fraud, misrepresentation or undue influence, a partition can be reopened at the instance of
a minor coparcener. if the partition was unequal, unfair or prejudicial to the interest of the minor.
8) Mistake - If by mistake some of the joint family properties had been left out of partition they may be
subjected to partition later on

Re- Union

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. Rukhma Bai (1913) 130IA 130; B.C. Naik
v. Bhaba Bewa A.I.R. 1972 Orissa 72].
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, 1943 A.L.J. 328 P.C.).
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 reunion:
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 Mohan (1865) 10 M.I.A. 403], 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 High
Courts are of the view that property will pass by survivorship like any other joint family property. There is no
difference in coparcenaries by birth and coparcenaries by reunion. The special rules of inheritance are applicable
only to the separate property of the reunited members.