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Partition

Vibhajan (partition) is defined by the Mitakshara as the allotment of individuals of definite portions of aggregates of wealth over which many persons have joint ownership. Under Mitakshara the coparceners do not have a definite share and it is only on partition that a coparcener becomes entitled to a definite share. According to Dayabhaga, vibhajan means the indication of the ownership of one out of many by the casting of a ball or pebble on a definite part of the land or cash. It arises with reference to a portion only but which is indefinite because it is not possible to deal specifically with a particular portion since there is nothing to show for certain what portion belongs to whom. According to Dayabhaga there is no ownership by birth. Every son takes a defined share, the moment the ownership of the father ceases owing to death etc. Under Hindu law partition puts to end the joint status in Hindu Joint family. On partition the joint family ceases to be joint and nuclear family or families may come into existence. However, partition under the Dayabhaga and Mitakshara School is not the same. Since, under the Dayabhaga school the interests of the coparceners specified and certain, partition under Dayabhaga school means physical division of the property or what is called partition by metes and bounds. But it is not so under Mitakshara School, there is community of interests in the joint family property. When a partition is to be made among the Mitakshara coparceners, the first step will be severance of status. Thereafter actual physical division of property will take place. Severance of status may be arrived at by agreement, by arbitration, or by unilateral declaration of an intention to partition. With regard to partition, the main issues which arise are: a) What property is divisible on partition? b) Who is entitled to a share on partition? c) What kind of restraint acts on partition? d) How is partition affected?

H. if a family consists of father and four sons. and D dying leaving three sons. and their rights to a share in property at the time of partition. The enactment of Hindu Succession Act. his right to a share on partition is represented by his male issue. This is the settled view now but various readings of the scriptures are not unanimous on this point. B.D all die without making a partition. one very controversial issue has been the status of women under the Mitakshara law. In case of a partition between a father and his sons each son is entitled to a share equal to that of a father.e. G. K want to partition. On the death of a coparcener leaving male issue. But this must be read in the light of section 6 of the Hindu Succession Act.B. In the ancestral property sons and grandsons equally have rights by birth. H. H. K. F. C. formed a joint family and that A. C leaving two sons F. Every branch takes per stripes as regards every other branch.C. Even though all the Sutras and Smritis prescribe the rule of equal division among the sons of wives of the same class as the father but some of these also refer to the special share or provision given to the eldest son. . then these six will not take 1/6 each but the partition will be through their fathers i. but the members of each branch take per capita as regards each other. General Rules regarding Partition On a partition between the members of the joint family. Thus. shares are allotted according to rules prescribed in ancient Hindu texts. E. This may be illustrated by an example: A B E F C G H D J K Suppose A. provided such issue is within the limits of coparcenery. K. 1956 and especially the provisions of Section 6 thereof have helped in changing the situation only to a little extent. J. if E. B leaving one son E. G. each one of them will take equal share in the property 1/5 each. F. D. G. but in the case of the grandsons assignment of the shares is made to them through their fathers and not in their separate individual capacity.Apart from the above mentioned questions.

K will take 1/3 together. or of the shares. G. then also it cannot be partitioned. J. 3) Some of the properties may be sold and their proceeds distributed to other coparceners. without destroying the intrinsic value. no partition can be made. C die. F and G together will take 1/3 (each will take 1/6) and H. and c) Paternal grandmother. right of way be partitioned? . only three women are entitled to a share in the partition – a) Father’s wife. 2) Some of the properties may be allotted to the share of a coparcener and its value adjusted with the other property allotted to the other coparceners. father’s father and so on. In other words. F. nor can property which by custom descends to one member of the family to the exclusion of other members. b) Mother. leaving D. the uncle of E. G along with his three sons H. K will take 1/3 only. places of worship. What property can be partitioned It is only the coparcenary property that can be subject matter of partition. grandsons and great grandsons of the person acquires an interest and the rights attached to such property at the moment of their birth. Ancestral property which is another term for the same is property inherited by a male Hindu from his father. E. Thus three methods of adjustment are available: 1) Some of the properties may be enjoyed by the coparceners jointly or in turns. Can dwelling houses. J. If from the very nature of things. such partition ought to be made. B. each taking 1/9. Here D. With regard to women. H. Coparcenary property is that property which belongs only to the joint family as a whole. If on the contrary.E the only son of B will take 1/3. According to the Mitakshara law the essential characteristic of ancestral property is that sons. K. the property is not susceptible to partition. Separate property cannot be the subject of partition. “if the property can be partitioned without destroying the intrinsic value of the whole property. The same will be the result if only A. F. money compensation should be given instead of the share which would fall to the plaintiff by partition”.

The right of way and other such indivisible property remains in the common use of all the coparceners. Therefore the encumbrances on the estate which should be accounted for before the partition actually takes place are: a) The debts due or claims against the family. etc are considered. Mitakshara law says that the sons are bound to pay off the debts of the father if these are not tainted with immorality or illegality if these have not been provided for at the time of partition itself. Kusum it was held that where the father who was the karta of the family had borrowed money for the improvement of the land then the other coparceners in this case the sons would be liable for the same. b) Charges on account of disqualified heirs. Pradumma that they should be given to one coparcener with the liberty of the others to have access to them for the purposes of worship. It is not necessary that there should be an agreement between all the coparceners for the . What are the principles regarding taking of account? The property that is available for partition has to be calculated through a detailed process of taking accounts where different factors including debts. unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. in proportion to their share in the property. In Deshpande v. temples and idols. let us now focus on specific questions relating to the entitlement of various persons to a share on partition of joint family property. the rights of those entitled to maintenance. c) Marriages and such other family ceremonies have to be provided for.In Nirupama v. in case the family makes a living out of the offerings. it was held in Pramatha v. of female members and of others who are entitled to be maintained. Baidyanath. the effort shall be to effect an arrangement which will leave the house entirely in the hands of one or more coparceners. It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can bring about his separation in status by a definite. holding the properties in turn. the court held that in case of dwelling houses. or kept for common use. each coparceners would worship and take the offerings by turn. In case the provisions for the payment have not been made it has been held that the sons are liable to the creditors of the father to the extent of their interest in the property. Similarly with regard to family shrines. Persons entitled to a share on partition Having given a basic overview of the rules regarding partition.

Illegitimate son entitled to a right in the property An illegitimate son of a Hindu may be a son by a concubine. is binding on the minor. A partition by agreement. though entered into during the minority of the coparcener. The jural basis of this doctrine has been expounded by the early writers of Hindu Law……………. unless the partition is likely to be for the benefit of the minor by advancing his interests or protecting them from danger. or sets up an exclusive title in himself. Section 16 of Hindu Marriage Act. If no share is reserved for him at the time of partition. If the concubine is a dasi. It is immaterial in such a case whether the other coparceners give their assent to the separation or not. Partition on behalf of minor coparcener Where a suit is brought on behalf of a minor coparcener for partition. Therefore. Examples of situations where court may pass a decree for partition. A son conceived before partition but born later entitled to a share in property En ventre sa mere Hindu law provides that a son conceived before partition but born after the partition of property takes place is entitled to a share. or declines to provide for the minor’s maintenance. The conflict of decisions referred to above has arisen from different readings of the same text of Mitakshara. 1955 provides that for the positions and rights in a Hindu coparcenary of a son born of a marriage.distribution of the joint status. the court does not pass a decree for partition. a suit for partition and separate possession of ancestral joint family properties by one of the coparceners is maintainable even if their father is joint with his brother and is not willing and does not consent to such a partition. include where an adult coparcener in possession of the family property is wasting the property. which is void or voidable is to be deemed to be a legitimate child of the parents. he is entitled to have the partition re-opened and share allotted to him.there is no distinction between a partition during the life-time of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will) of a single (coparcener). unless it is unfair or prejudicial to his interests. . or denies the minor’s rights. the son is called a dasiputra. It may however be noted that the minority of a coparcener is no bar to a partition between the coparceners. as if he was in existence at the time of the partition.

it is well settled proposition that an illegitimate son of a Sudra is entitled to succeed to his separated father’s property. enforce a partition against his father in his lifetime. On the father’s death. and he is entitled to enforce a partition against the legitimate son. eg. Virulent leprosy as far as rendering a person unfit for social intercourse also acts as a bar. and it was held that after the death of his father such a son along with a legitimate son succeeded as a coparcener with right of survivorship to the property in his father’s hand. in case of a sudra. 1956 and the Caste Disabilities Removal Act. he succeeds to his estate as a coparcener with the legitimate son of his father. The Caste Disabilities Removal Act. however. the illegitimate son is not entitled to demand a partition of the family property. or his uncles or their sons. The illegitimate son of a Sudra does not acquire by birth any interest in his father’s estate. However. and want of any limb which is also congenital also operate as physical disqualifications. he. 1850 came into being both unchastity of a widow at the time of her husband’s death and the loss of caste or religion were valid grounds for the taking away their entitlement to any share in the property.. He cannot. i. The courts have also held that congenital and incurable deafness and blindness are also valid reasons for disqualification of heirs. Vaishya) are only entitled to maintenance and not to inheritance or to any share on partition. the illegitimate son takes only one-half of what he would have taken if her were legitimate. s 12. however. whether ancestral or separate in his hands. . his brothers or their sons. the legal status of an illegitimate son of a Sudra was first recognised in Sadu v. the illegitimate son gets one-fourth and the legitimate son takes three fourths.e. the illegitimate son is entitled to certain rights of inheritance and partition. Therefore. illegitimate sons of the three regenerate classes (Brahmin. 1850 operates to remove the disability as far as the person who is undergoing conversion to another religion or has suffered a loss of caste is concerned and as far as his or her heirs are concerned the law of the religion that the individual has converted shall apply insofar as succession is concerned. If the father was joint at his death with his collaterals. with a right to survivorship. Baiza. para 3 of Mitakshara.Under Chapter 1. Kshatraiya. taking only half a share. On a partition between an illegitimate and a legitimate son. provided his father left no separate estate. but he is entitled as a member of the joint family to maintenance out of such property. lameness. therefore. However. Along with this impotence. Disqualifications on account of disability Before the Hindu Succession Act.

According to the former. but it is not meant that the husband is to carve out separate portions of the joint property and hand them over to his wives. the purchaser can claim partition. She may either be mother or the step-mother of the sons. Madras and Madhya Pradesh states on one hand and Bengal and Uttar Pradesh on the other with regard to the position of a purchaser of the interest of a coparcener by private contract. he cannot do so. the wife was entitled to a share equal to that of a son. Position with respect to the grandmother . a widow mother cannot compel a partition so long as the sons remain united. but if the husband himself separates his sons during his lifetime or if the sons claim a partition during the father’s lifetime. sisters etc. 1928 which removes the bars to succession for all heirs other than those who are since birth afflicted by either lunacy or idiocy. at a sale in execution of a decree can demand partition according to all schools. on a partition. provided there was no waiver of her rights or acquiescence on her part. she is entitled to a share equal to that of a son in the coparcenery property. She can sue for her shares where there has been a partition and she has not been assigned any share. The father when separating from the sons should take for each of his wives a share equal to that of each son. If a partition does take place. No female except those mentioned is entitled to a share on partition. Status of Women and the law of Partition The persons who have no right to partition but who are entitled to a share if partition takes place include father’s wife. Now. provision must be made for their maintenance and marriage expenses. Thus daughters. while according to the latter. However. Purchaser of undivided interest and demand of partition A purchaser of the undivided interest of a coparcener. let us discuss the rights of each of women separately. If there be several wives each get a share equal to that of a son. mother and grandmother.This position has been changed by the Hindu Inheritance (Removal of Disabilities) Act. Nature of right of the wife at the time of partition The wife cannot herself demand a partition. There is a conflict between the Bombay. since such a procedure would be opposed to the dictum “there is no partition between husband and wife” Position with respect to widow-mother Generally speaking. are not entitled to a share on partition.

• When partition takes place between her son and sons of a predeceased son.At the time of partition. a child in the womb also has the right to a share. each member of the family is entitled to claim his/her share. if it is not possible to reschedule the partition. When partition is being contemplated and any woman of the family is pregnant at the time. However. Hindu law recommends postponing the partition till the child is born. once the Partition is made. • Reopening: According to the Hindu Joint Family. For instance. Under Hindu law. he has right to claim the re-opening of partition. these three are done for once and irrevocable. it can be reopened. When partition takes place between her sons and their sons. she is entitled to a share equal to the share of a grandson. In Hindu law. her own son being dead. in some cases the partition can be re-opened: 1. But. if a son is in Womb. it can be re-opened. once the partition of inheritance made: Once is a damsel given in the marriage and once does a man say. a share must be kept aside and that share must be equal to the coparcener’s share. according to the Allahabad and Bombay High Courts she is not entitled to a share but according to the Calcutta and Patna High courts she is entitled to a share equal to the share of a grandson. worthless assets are fraudulently misrepresented as valuable assets and are distributed to a coparcener. the after born son has the right to get the partition reopened. she is entitled to a share equal to the share of a grandson. If. Fraud: If the Partition is found any fraudulent. A text of Manu. Son in Womb: When a joint family undergoes partition. 3. "I give". in case. and no share is allotted for him. 2.A paternal grandmother or step-grandmother can not herself demand a partition but in the following situations she is entitle to a share on the partition: • When a partition takes place between her son’s sons. it can be irrevocable or re-opened. coparacenary share is the term that is used. Adopted Son: . the partition takes place without keeping a coparcener share for the unborn child.

In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. Minor Coparcener: A minor coparcener can claim the re-opening of the partition. During his minority was unjust. Disqualified Coparcener: A disqualified coparcener is deprived of his share at the time of partition due to some technical constraint. 5. he can get the partition re-opened. (Old law when doctrine of relation back was prevailing ) 4. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is bindig on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. The adopted son has a right to re-open the partition. 6. unless it is shown that the same is obtained by fraud. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. The following propositions emerge: (1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened. After the disqualification is removed. he can get the partition removed. (4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times. misrepresentation or undue influence. Absentee Coparcener: At the time of partition is taken. (3) Where. where a coparcener is absent and there is no share is allotted to him. according to these cases a partition can be re-opened in the Hindu Joint Family. unfair and prejudicial. If it is found that only one of these transactions is unjust and unfair it is open to the Court to . if he can establish that the partition. So.If a widow of a coparcener adopted a son after the partition was take place. however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. coercion.

If a joint Hindu family separates. the family or any member of it may agree to reunite as a joint Hindu family. • The reunion must be effected by the parties or some of them who had made the partition. Reunion is intended to bring about a fusion in the interest and in the estate among the divided members of an erstwhile HUF once again.maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair. The burden of proof of reunion is on the party asserting the reunion and must be discharged along with proof by the persons reuniting. A reunion can only take place between persons who are parties to the original partition. Therefore. Reunion is possible only among persons who were on earlier date members of the HUF. a few of the properties of the former HUF and also a few members of the former HUF may remain out of the reunited HUF. • There must be a junction of estate and reunion of property because reunion is not merely an agreement to live together as tenants in common. There should. In a reunion. . the former status of the HUF. It is suggested to go through the class notes also. must also be effected by a registered deed. which follows if it is to be valid in law. It should also be remembered that if the partition comprising immovable properties was by a registered deed then the reunion. The effect of such reunion is to bring back to life. be a proper agreement between the parties so that the intention to revert to the original status of the HUF is expressed clearly and unambiguously. however. it is possible for the coparceners to reunite undoing the earlier partition among themselves. reunion creates a right on all the reuniting members in the joint family properties which is the subject matter of partition among them to the extent they were not dissipated before the union. Reunion of HUFs Even after a total partition. The condition precedents for a valid reunion under the Hindu Law are: • There must have been a previous state of union. • There must have been a partition in fact.