Partition under Hindu law

Introduction

Partition means to divide a joint Hindu Family into

smaller, separate and independent units, with the
conferment of separate status on the undivided
coparceners.

There are two categories under a partition that

is Division of Right and Division of Property–

De Jure Partition is a division of right, i.e. severance

of status here partition has taken place but actual
possession has not been given and De facto Partition
means when the partition has actually taken place by
metes and bounds, here ownership, as well as
possession of a property, has been transferred.

There are some other properties also which are

incapable to be partitioned as provided by section 2,
Partition Act, 1893 as such property lose their basic
value or get destroyed if partitioned. Some of those
properties are Wearing apparel, carriages, riding
horses, ornaments, water, pastures, animals, wells,
passages, ways, courtyards, staircases, utensils, family
shrines, temples and idols etc.

A property can only be partitioned after some of the

deductions in it such as joints family debts like debts
taken by Karta for any purpose regarding joint family
or father’s personal debt taken for the maintenance of
family, marriage and funeral expenses or to perform
rites and ceremonies.
Partition is the division of Hindu joint family which
brings the status of coparcener into an end and a
separate life initiates of it. In Mitakshara joint family
these both categories of partition works but In
Dayabhaga joint family partition of property by meets
and bounds work (De facto).

In Raghvamma v. Chenchemma (AIR 1964),

the supreme court held that it is settled law that a
member of the joint family can bring about separate
status by a definite declaration of his intention to
separate himself from the family and enjoyed their
share severally.
Essentials of Partition
 Formation of an intention to separate from the
family: At least one of the family member can
have the intention to partitioned from their family.
 An unequivocal, unilateral and
definite declaration of their intention to separate
 Communication of the declaration to all the
coparceners
Modes of Partition under Hindu Law

There can be several modes by which a

partition (Modes of partition under Hindu Law ) can
undergo such as

 Partition by father during his lifetime: the Karta of

the family take partition then it came into
existence.
 Partition by suit: from the moment the suit is filed
clearly indicates the intention to severance, then
partition was held when the suit was instituted.
  Partition by agreement: from the date of signing
the agreement, severance of status get started.
And one more type of partition includes the
agreement of arbitration in which all member of
the joint family come into an agreement in which
they appointed arbitrator that distributes or divide
the property.
 Partition by notice
 Partition by will
 Oral partition
 Partition by one coparcener through his unilateral
declaration.
 By conduct, when food, worship and business are
different.
 Partition on death also called Notional Partition
 Partition on conversion and or by marrying a non-
Hindu: if anyone converts their religion then
automatically severance of interest take place from
the date of conversion but they entitled to take
their share from that property, and if a person
married under special marriage act 1954 so then
automatically severance of interest took place from
the date of marriage but in this case also they
entitled to get their share.

Who all are eligible to demand Partition under

Hindu Law?

 Coparceners: Every coparcener in both Dayabhaga

and
Mitakshara have right to take partition.
Father, son grand son and great-grandson
also have the right to take partition.
 Alienee by way of gift, sale and will/ creditors
by way of paying off antecedent debts.
  Minor coparceners can sue through next friend
(Kakamanu Pedasubbhaya Akkamma,
AIR 1968 SC 618) in both schools even a
minor coparcener can take partition. Any
person can sue on behalf of that minor and a
minor can reopen the unfair partition and also
get their share if they have right.
 Convert cannot ask for partition but he is
entitled to a certain share for which he can
sue. Marriage of a coparcener with a non-
Hindu under SMA, 1954, cannot ask for
partition but he is entitled to a certain share
for which he can sue.
 A son born after partition: If a son born after
partition and they have in existence at the
time of partition in mother womb then they
have their share in the property and if the
child is not in the womb and not known then
also the partition can reopen after birth.
 A person who is allotted a share under a
family arrangement
 Adopted child after partition: Revansiddappa
and Ors. Malika Arjun, (2011) 11 SCC
1.   it was held that the word mentioned is
‘property’ and it is wide enough to include
both Joint Family Property and separate
property, therefore even an adopted son has
the right of partition.
 Illegitimate child: Not entitled for partition or
share but for maintenance only.
 After Amendment of 2005, Female has the
same right of partition as that of a male.

Reopening of Partition under Hindu Law
A partition can be reopened on the following
grounds-
 When any property was not known at the time of
partition and there is no possibility of distributing
the same without reopening the partition,
 When any property was concealed by fraud,
coercion, misrepresentation at the time of
partition,
 When the partition was unjust and unfair to any
coparcener who was min or at the time of a
partition or if Wife of Highest Coparcener, widowed
mother and paternal grandmother have not got
their share
 When a child is born after partition.
 If the father is not taking their share then, their
son has the right to reopen the partition.
 If A minor children that have not allotted his share
can also claim to reopen of partition.
 If an Adopted child cannot take their share then
they have also right to reopening the partition.

Reunion after Partition under Hindu Law

It is essential that parties have the intention to reunite
in estate and interest again. A reunion can be made
only between the parties who actually partitioned at
that time. A reunion can only take place between father
and sons, brothers and between paternal uncle and
nephew.

It is not required to have the existence of the similar

property which were separated since the reunion is for
love and affection of family members with the desire of
living together.
Effect of reunion: Once the agreement of reunion is
made it restores the family and Coparcenary,
coparceners have joint possession of a property.