PARTITION

INTRODUCTION
- Partition means to divide into parts or to separate and under Hindu law, it
generally means a division or splitting of a Joint Hindu Family into smaller,
separate and independent units, with conferment of separate status on the
undivided coparceners.
- No partition is possible unless there are at least two coparceners in a joint family
as it is the disruption of the undivided coparcenary in a joint family.
- Partition means fixing the share of each coparcener, which was not fixed before
the partition as the coparceners hold the coparcenary property as one/common
unit.
- Joint tenants become tenants in common.
 JOINT TENANTS AND TENANTS IN
COMMON
- Relates to ownership in the property
Joint tenancy:
i. 100% ownership by all and no divided interest
ii. Deceased’s interest not distributed upon legal heirs
iii. Doctrine of Survivorship
Tenants in common:
i. Either own equally or in some other proportion
ii. Deceased’s interest devolves upon legal heirs
iii. Doctrine of Succession
 DE- JURE AND DE-FACTO PARTITION

- Coparcenary has two basic incidents, viz,

i. community of interest
ii. unity of possession

- Community of interest indicates that the ownership of the

coparcenary property is joint and
- Unity of possession signifies its common physical enjoyment.
 DE-JURE PARTITION

- In an undivided coparcenary, all the coparceners have a joint ownership of the coparcenary property and till a
partition takes place, no one can specify the exact share that he owns.
- Further due to the application of the doctrine of survivorship the interest keeps on fluctuating. At any given
time, the interest can at the most be called a probable share.
- Where this community of interest is broken or divided either at the instance of one of the coparceners or by
mutual agreement among all the coparceners and the shares are clearly specified or demarcated, it means that
the probable share is now converted into a fixed share.
- Unity of Possession might be retained but the moment community of interest is broken or specified in a law,
a partition has taken place.
- The extent of ownership and the shares are now fixed, and are no longer probable or fluctuating, with no
scope of the application of the doctrine of survivorship.
- De-jure Partition is also called simple Severance of status.
 DE-FACTO PARTITION

- Unity of Possession signifies common possession and the enjoyment of property by the
coparceners together with all the Joint family members, that may continue even after the
division of the community of interest or severance of status.
- The shares might become fixed, but no copartner can lay his hands on a specific item of
property claiming it as his exclusive share.
- It would be clear only when unity of possession is broken and is replaced by exclusive
possession.
- Unity of possession is maintained even after a severance of status has taken place. This
breaking up of or division of this unity of possession is effected by an actual physical division
of the property and is also called Partition by metes and bounds.
 SUBJECT MATTER OF PARTITION

Property Capable of Being Partitioned:

- A partition refers to a severance of the joint status of coparceners and a division of the
coparcenary property only.
- The separate property of a coparcener cannot be subjected to a partition as by its very
nature, no one else except the owner can claim any right over it.
- Property that is impartible, either because of the application of the rule of
primogeniture or otherwise under a valid customs cannot be partitioned.
- Primogeniture- an exclusive right of inheritance belonging to the eldest son.
PERSONS ENTITLED TO GET A SHARE
AT THE TIME OF PARTITION
1. Coparcener
2. Son born of a Void or Voidable Marriage
3. Illegitimate son
4. After-born son
5. Alienee
6. Female members
i. Father’s wife
ii. Mother
iii. Paternal grandmother
Coparcener

- All coparceners, whether major or minor, are entitled to get a share

at the time of partition.

- Since they had an undivided interest in the property, a partition

merely divides title and gives them exclusive ownership.
Son born of a Void or Voidable Marriage

- A child born of a void or voidable marriage is a legitimate child of

the parents and statutorily entitled to inherit their separate property,
yet they cannot inherit from any other relation of the parents.

- His rights are better than those of an illegitimate child but inferior to
those of a child born of a valid marriage.
 Illegitimate son
- Presently, an illegitimate son inherits only from the mother and not from the father.
- An illegitimate son is neither entitled to ask for a partition, nor to get a share if the father was joint
with his collaterals.
- Where the father was separated from his collaterals, he has no right to demand a partition from him,
nor to claim a share if a partition takes place between the father and his legitimate sons, but he can
be validly given a share by his father. It is the total discretion of the father which he can exercise at
his pleasure.
- But if the father is dead and the coparcenary comprises only the brothers, the illegitimate son is not
only entitled to enforce a partition but he can also get a share in his own right and not merely at the
discretion of the other brothers.
- The extent of his share would be 1/4th of what the other brothers (legitimate sons of his father)
would take.
- If the brother dies before a partition has been effected, he would take the whole of the property
under the doctrine of survivorship.
 After-born son
- A son who is born after a partition has been effected in the family can be a son conceived
and born after the partition, or born after the partition, but conceived before the partition.
- The rule is that if the pregnancy is known, then either the partition should be deferred till
the birth of the child, or a share should be kept apart for it, to be given to him when he is
born.
- If a female child is born, the share could be redistributed among all the members. (prior to
2005 amendment)
- When the son is conceived and born subsequent to the partition he becomes a coparcener
with his father provided he has taken a share.
- Under Hindu Succession Act,1956, a divided and undivided son are treated equally in
matters of inheritance.
Alienee
Where coparcener has the right to give his interest and
such interest is bought by alienee via court sale or private
sale, such person can demand shares as he is now in the
shoes of a coparcener.
Female members:
- Three categories of females who are entitled to get a share:
1. Father’s wife

2. Mother

3. Paternal grandmother
Father’s wife

- Where a partition takes place between a father and his sons, the
father’s wife or wives (prior to 1955) are entitled to a share, which is
equal to the share of a son.

- Where the father has more than one wife (before 1955), each wife is
entitled to a share equal to the share of the son.

- It would be irrespective of whether she has a son of her own or not.

Widowed mother:

- On the death of the father, where a partition takes place between or

among brothers, the widowed mother is entitled to share that is
equal to share of brother.

- The expression ‘mother’ includes a stepmother also.

Paternal grandmother:

- A paternal grandmother gets a share equal to the share of a

grandson, where the sons are dead and a partition takes place among
the grandsons.

- The expression ‘grandmother’ includes a ‘step grandmother’.

 Persons entitled to ask for Partition

General Rule: Only the Coparceners.

Exceptions:
i. A widow
ii. Alienee (in the execution of a decree of court pertaining to coparcener’s undivided
share)
iii. Minor coparcener through next friend.

Note: There has to be at least two coparceners present, for partition to happen i.e., there
can be no partition if only sole-coparcener is present. e.g. no partition between widow of
father and son (if he is a sole-surviving coparcener).
 Rules for calculation of shares in a Partition by
Metes and Bounds
(i) A partition has to be effected between two generations as the first step, e.g. – between a father and his sons.
(ii) The shares are to be so calculated that the share of the father on the one hand, and the share of each of the son on the
other are absolutely equal.
(iii) The father takes the share as his exclusive or separate property with respect to the sons, while the son takes it as
coparcenary property when he has male issues. In the absence of any male issues, he takes the property as a sole
surviving coparcener.
(iv) Where one son dies during the lifetime of the father and leaves behind male issues, the branch of the deceased son takes
the share that he would have taken had he been alive.
(v) Where a joint family comprises only brothers, each of them takes an equal share. This is called a per capita distribution.
(vi) Each branch takes the property as per stirpes (according to the stock), but the members of each branch will take per
capita as regards each other.
(vii) When female members, who are entitled to get a share are present, they must be given a share at the time of partition.
The father’s wife takes a share equal to that of a son, the mother’s (widowed) share is equal to that of the brothers and
paternal grandmother’s share is equal to that of the brother and the paternal grandmother’s share is equal to that of a
grandson.
 Modes of Effecting Partition
- A major coparcener of sound mind has a right to demand a partition at his pleasure by expressly manifesting this
demand to other coparceners.
- A demand in order to bring a severance of status must comprise:
(i) Formation of an intention to separate from Joint Family.
(ii) A declaration of this intention
(iii) Communication of this intention to the Karta and if he is unavailable to other coparceners
- A partition is a matter of individual volition. All that the coparcener has to do is to form an unequivocal intention
to separate himself from the joint family and then to communicate it.
- The formation and declaration of intention must be clear and unambiguous.
- An uncommunicated intention is no intention and does not result in a partition.
- The form of expression will vary depending upon the facts and circumstances of each case. It can be verbal or in
writing, through an informal letter or a formal notice, or even by instituting a suit for partition in a court of law.
 Communication of Intention through a Will

- Two things necessary for effecting a severance of status:

(i) Declaration of intention
(ii) Communication of it to the others effected thereby
- A statement in the Will, by a member of HJF, that he regards himself as a separate member,
or that he has been a separate member all along or that through this Will he is expressing his
clear intention to effect a severance of status, will not be effective at all and will not result
in a partition.
- But where he makes a Will expressing in it a clear unequivocal declaration of his intention
to separate and brings it to the notice of others who are affected by it, a severance would
take place.
- A. Raghavamma v. A. Chenchamma
 Severance of status through a suit

- A suit demanding a partition is a clear cut evidence of declaration of his intention to separate
himself from the family, and unless it is a sham proceeding, it will effect a severance of the status
from the date of its institution in a court of law, irrespective of whether he gets a decree from the
court or not.

- If he dies during the pendency of the suit, he dies as a separate member and his legal representatives
can continue the suit. This is because the court is held to be in same position as the Karta, and its
role is confined to helping the members in working out their shares in accordance with the
provisions of law.

- The court is not empowered to go into the reasons behind the coparcener’s seeking a partition, nor
is it competent to advise him against it.
 Severance of Status in case of Minor

- A suit for partition can be filed in a court of law by a minor through his next friend.
- Unlike a suit filed by a major coparcener in case of minors the court has to play a decisive role. It has to decide
the case not merely divide the property.
- The court has to actually find out whether the situation was such that it would have adversely affected the
interests of the minor, whether the Karta and the other coparceners were acting in a manner so as to deprive the
minor of his rightful share in the property and whether the minor’s interests can be protected by effecting a
partition.
- In case of minors-the court acts as parens partria.
- Where the suit is filed by a minor through his next friend, and the court comes to the conclusion that effecting a
partition would be in the interests of the minor, the severance of his status would relate back to the date of the
institution of the suit and he would be deemed to be separate member from the date when the petition was present
in the court.
- Severance is conditional upon the court coming to the conclusion that a partition would have been beneficial to
the interests of the minor and till the court examines the issue, the status of the minor remain uncertain.
- Kakumamu Pedasubhayya v. Kakumanu Akkamma.
 Effective Date of Severance of Status

- Depends upon the manner of communication of the intention to separate.

- The declaration to separate can be communicated verbally through a written notice, an informal letter or
through the medium of a friend or relative. It can also be done via a telephone or sent through a fax, or an
e-mail.
- Where the communication and its coming to the knowledge of Karta or other coparceners is instantaneous, the
severance of status is also instantaneous.
- Once the demand is made, it cannot be subverted at the instance of any family member and operates as an
immediate severance.
- The actual shares can be worked out at a later stage, but as far as the status is concerned, that is demarcated
immediately and from an undivided coparcener, he takes the label of a separate member.
- However, where there is a gap between the time when the coparcener expresses his intention, puts it in course
of transmission and when it comes to the knowledge of the Karta, the same rule cannot be applied. The rule
that severance of status takes place only when it comes to the knowledge of the Karta is applied strictly.
 Effective Date of Severance of Status

- The doctrine of Relation back do not apply to the severance of status, in the manner it applies to
adoption since valid right or title in favour of third party would have been created in between the
date of formation of intention and date of communication which is indeed a vested right and is
binding on all coparceners.
- For the application of doctrine of relation back, it is necessary that the communication of
intention is complete during the lifetime of the coparcener.
- Where the communication is sent by the coparcener but before it reaches the Karta, he dies, his
interest will be taken by the surviving coparceners and no severance of status would take place.
- Therefore, where a coparcener communicates his intention to separate to the Karta through a
letter, and executes a Will of his share in favour of his friends, the ‘Will’ will be valid if he is
alive on the day the Karta receives the communication but void, if he dies before its receipt by
the Karta.