Partition of joint family

property
 Meaning of partition
It means bringing the joint status to an end.
On partition, the joint family ceases to be joint and
nuclear families or different joint families comes into
existence.
For e.g., if a partition takes place in a joint family
consisting of A and his two sons, B and C, there will come
into existence three separate families of A, B and C.
Suppose a joint family consists of three brothers A, B and
C and their three sons AS, BS and CS. If three brothers
partition, their sons not partitioning from them, there will
come into existence three joint families, consisting of A
and his son AS, B and his son BS and C and his CS.
Partition under Dayabhaga School
When coparceners partition, it means division of property in
accordance with the specific shares of the coparceners, since
the Dayabhaga coparceners have ascertained and specified
shares.
Partition under Mitakshara School
Under Mitakshara school, partition does not merely mean
division of property into specific shares, it also means
division of status or severance of status or interest. It is
because the interest of the Mitakshara coparceners are
unspecified.
Thus under the Mitakshara school, partition means –
i. Severance of Status or interest
ii. Actual division of property in accordance with the shares
so specified, known as partition by metes and bounds
Severance of status is quite distinct for the de facto division
into specific shares of the joint property. The former is a
matter of individual decision, the desire to sever himself and
enjoy his undefined and unspecified share separately from
others;
While the latter is a resultant consequent of his declaration of
intention to sever but which is essentially a bilateral action.
It may be arrived at by agreement, by arbitration or by suit.
I. Subject matter of partition
II. Persons who have a right to partition and who are
entitled to a share on partition
III. How partition is effected and mode of partition
IV. Rules relating to the allotment of shares
V. Reopening of partition
VI. Reunion
 Subject matter of partition
Entire joint family property
However, some properties may be held jointly by two or
more coparceners, such as when there exists a
coparcenary with a coparcenary, and if a general partition
takes place, these properties may also be divided among
such coparceners, though other coparceners might claim
a share in them.
Properties which are not capable of division by their
very nature
According to Manu- A dress, a vehicle, ornaments, cooked
food, water and female slaves, property destined for pious
use and scarifies, and a pasture ground were indivisible.
Acc to vijnaneshwara-Water or a reservoir of it, as a well
or the like not being divisible and is to be used by the co
heirs by turns. The common way, road to ingress and
egress and from the house, garden or the like is also
indivisible.
Three methods of adjustment are available:
1. Some of these properties may be enjoyed by
coparceners jointly, or by turns (like wells and bridges,
temples and idols)
2. Some of these properties may be allotted to the share
of coparcener and its value adjusted with the other
property allotted to other coparceners, or
3. Some of these properties may be sold and sale
proceeds distributed among the coparceners.
Dwelling house
Family shrines, temples and idols
Deductions and provisions (liabilities)
i. Debts
ii. Maintenance
iii. Marriage expenses of daughter
iv. Performance of certain ceremonies and rites

Persons who have a right to partition and who are

entitled to a share on partition
As a general rule every coparcener under Mitakshara
as well as Dayabhaga schools has a right to partition
and every coparcener is entitled to share on
partition.
Apart from coparceners, no one else has a right to partition.
No female has a right to partition, but if partition takes
place there are certain females who are entitled to a share
like Father’s wife, Mother and grandmother.
Under Hindu women’s Right to Property Act, 1937- A
Mitakshara coparcener’s widow took the same interest
which her husband had at the time of his death. She was
given the right to partition.
Under Hindu Succession Act, 1956- When a coparcener’s
interest devolves by succession by virtue of the application
of section 6- widow, daughter, mother, predeceased son’s
daughter, predeceased son’s widow, pre deceased son’s son’s
widow, predeceased son of a predeceased son’s daughter,
predeceased daughter’s daughter are the females who are
entitled to a share and they can get their share demarcated
by partition.
Alienee of coparcener’s interest
Exceptions to the rule that every coparcener has right
to partition
a. An unqualified coparcener has no right to partition
b. In Bombay school, sons cannot ask for partition against
their father if the latter is joint with his own father or a
collateral. Father’s right to partition is superior to the
right of partition of all others.
Persons who have a right to partition and entitled to a
share-
i. Father
ii. Son, grandson and great grandson
iii. Son born after partition (a) son conceived at the
time of partition but born after partition,
(b) son begotten and born after partition (i) when the
father has taken his share in a partition, (ii) when the
father has not taken any share
iv) Adopted son- (a) when there is a subsequently born
natural son of his father, (b) when there is no such son.
v) Son of void marriage or annulled voidable marriage
vi) Illegitimate son- a) son of a dasiputra, b) son born of a
woman who is not dasi.
vii) Minor Coparcener-
viii) Alienee-
ix) Absent coparcener-
Persons who are entitled to a share if partition takes
place
Father’s wife- if a partition takes place between her
husband and his son, the father’s wife is entitled to a
share equal to the share of a son. She can hold it and
enjoy it separately from her husband. If there are more
than one wife, each wife is entitled to a share equal to
the share of a son. It is immaterial that a wife has no
son of her own. If no share is allotted to her she can get
the partition re opened. No such right under
Dayabhaga school.
Mother- A widowed mother has a right to take a
share equal to the share of a son if a partition takes
place among the sons. When a partition takes place
after the death of the father among the sons, the
mother, including a step mother even if she is
childless, is entitled to a share.
Under Dayabhaga school a childless stepmother, is not
entitled to a share.
Grandmother- In Mitakshara school the paternal
grandmother and step grandmother are entitled to a share on
partition in the following situation-
a. When partition takes place between her grandsons, her son
being dead, she is entitled to a share equal to the share of a
grandson.
b. When partition takes place between her son and sons of a
predeceased son, she is entitled to a share equal to the share
of a grandson.
c. When partition takes place between her sons and their
sons, acc to Allahabad and Bombay HC she is not entitled
to a share, but according to the Calcutta and Patna High
courts she is entitled to the share equal to the share of a
grandson.
Coparcener’s widow- when two or more widows succeed
to the property of their husband, either widow has the
right to partition and put an end to joint status.

III- How Partition is Effected

Severance of joint status
Mode of Partition
Division by Metes and Bounds
Severance of Joint status-
i. Expression of intention- clear and unequivocal
expression, by words or conduct of an intention to
partition.
ii. Once members of the joint family agree or express an
intention to partition, severance of status takes place.
Case- Raghvamma v. Chenchamma 1964 SC 136- the SC
said that there must be intimation, indication or
representation of an intention to partition, though in what
form the manifestation of an intention is made will depend
upon the circumstances of each case. It is a settled law that
any adult coparcener may sever his interest by an unequivocal
communication of intention of intention to partition.
A coparcener expressing an intention to sever need not assign
any reason. Motives are also irrelevant. Nor does it matter, in
what form and what manner communication of an intention
is made.
Case- P. Periasami v. Periasami, 1980 mad 33. It was held
that mere separation from commonness does not necessarily
amount to severance of status if not unaccompanied by
unequivocal declaration of intention to partition.
Case- Girjanandini v. Bijendra 1967 SC 1124- The SC
said that merely because one member of a family severs
his relations there is no presumption that there is a
severance between the other members. The question
whether there is a severance between the other members
is one of fact, to be determined on a review of all the
attendant circumstances. Where there is severance
between two difference branches of a joint family,
severance between the members of the branches inter se
may not in the absence of expression of an unequivocal
intention, be inferred.
Communication of Intention to sever- Though
intention to sever may be expressed in any mode , it is
necessary that intention to sever must be communicated
to other coparceners.
Conscious and informed act of the coparcener
When should the communication of intention to sever
be deemed effective: from the date on which the
communication is put into transmission or from the
date on which it reaches the coparcener?
Case- Kama v. Meenakshi 1931 Mad 278- it was laid
down that the severance of status is effective from the
date on which communication is put into
transmission. For e.g., a letter or a notice or a telegram
is despatched say or March 31, the severance of Status
takes place from March 31.
Mode of partition
Partition by suit- when a coparcener files a suit for
partition, it amounts to an unequivocal intimation of the
intention to sever, and consequently, severance of status
takes place from the date the suit is instituted. A Decree
may be necessary for partition by metes and bounds
Partition by agreement- An agreement between the
coparceners to hold and enjoy property in defined shares
as separate owners operate as a partition, although actual
division of properties might not have taken place.
Oral partition-
Unilateral declaration- This means that the consent of
the other coparceners is not necessary. intention is
necessary what ever mode of partition one may use.
An unambiguous and definite expression of intention by a
coparcener to partition is sufficient to bring about a
division in status, with all the legal consequences
resulting there from.
Partition by arbitration- It is the case where members
of joint family enter into an agreement under which they
appoint arbitrators for dividing the joint family property
among themselves, the severance of status takes place
from the date of the agreement.
Partition by conduct- conduct must be unequivocal,
explicit and definite. E.g., separation of food, worship,
dwelling, separate enjoyment of property, etc are
instances of conduct from which inference of severance
may be drawn.
Automatic severance of Status- conversion of a
coparcener to a non-Hindu religion.
Partial partition- partial as to property
Partial as to persons
Division of property by metes and bounds- The
physical division of Joint family property
Taking of account
Rules relating to division of property-
Ancient Hindu law- Putra bhaga
Patni bhaga
At present patni bhaga is obsolete.
Another concept of jyeshta bhaga- eldest son or
brother- double share
Jyeshta bhaga also obsolete now.
Rules for partition by metes and bounds
Division between father and son-
Division between brothers-
When division takes place among branches-
Doctrine of representation
Under the Dayabhaga school
Rule 1- is not applied as there cannot be a partition
between father and sons.
Rule 2- applies as it is. The share of a brother is dead,
is taken by his heir, devisee or assignee.
Rule 3 and Rule 4 apply with some modifications
 Reopening of partition
Acc to Manu- Once is the partition of inheritance made,
once is a damsel given in marriage and once does a man
say, “I give” these three are by good men done once and
irrevocably.
Acc to this text, a view has been propounded that if
partition is once made, it is final irrevocable and it cannot
be reopened.
Another text of Manu- If after all the debts and assests
have been distributed according to the rule, any property
is afterwards discovered, one must divide it equally.
This text does not explicitly talk of re-opening of
partition, but of distribution of the discovered property.
Acc to Yajnavalkya- the settled rule is that co-heir again
divide on equal terms wealth which being concealed by
one co-heir from another is discovered after partition.
Katyayana also ordained that the property of which an
unequal distribution has been made contrary to law or the
property recovered after being seized or lost, should be
redistributed.
The courts have taken the view that though a partition
once effected is final, yet it can be reopened in case of
fraud, mistake or subsequent recovery of property.
The matter may be looked at from two angles:
Readjustment of properties.
Reopening of partition.
Readjustment of assets: In case some properties may be
left out from the partition by mistake or oversight,
Some lost properties may be recovered later on,
There may be some items of property whose distribution
has to be postponed because they were in the possession of
a third person,
Thus, the general rule is that when readjustment can be
made, a partition need not be re-opened.

Reopening of partition: Where adjustment of properties

is not possible, the entire partition has to be re-opened.
Case Ratnam v. Kuppuswami AIR 1976 SC 1- it was held
by the SC that a partition can be re-opened if it was
obtained by fraud, coercion, misrepresentation or undue
influence.
1. Fraud- when worthless assets have been given to some
coparceners as valuable assets
or when a property which does not belong to the family
has been allotted to some coparcener.
When it is unjust and unfair or detrimental to the
interest of minors, partition will be reopened.
2. Son in womb-
3. Adopted son-
4. Disqualified coparcener-
5. Son conceived and born after partition-
6. Absentee coparcener-
7. Minor coparcener- if partition was unfair, prejudicial or
unjust.
 Reunion
Acc to Brihaspati- He who being once separated, dwells
again, through affection, with father, brother or a paternal
uncle, is termed reunited with him.
In the Mitakshara, Dravida, Benaras and Dayabhaga Schools
for reunion, two conditions must be satisfied-
1. A reunion can be made only between the parties to partition
2. A reunion can take place only- i) between father and son, ii)
between the paternal uncle and nephew, iii) between
brothers.
3. It is also well settled that to constitute a reunion there must
be an intention of the parties to reunite between the parties.
4. It is implicit in the concept of reunion that there should be
an agreement to reunite between the parties. Need not be
writing it may be implied from the conduct.
Bombay and Mithila Schools- only condition (1) is
to be satisfied.
Reunion how effected-
Effect of reunion-