Define Hindu Joint Family Property. State various modes of partition of joint family property. Can a partition of Hindu Joint Family property be reopened? If so explain the circumstances.

Question: Define Hindu Joint Family Property. State various modes of partition of joint family property. Can a partition of Hindu Joint Family property be reopened? If so explain the circumstances. [BJS 2006]

Find the question and answer of Hindu Law only on Legal Bites. [Define Hindu Joint Family Property. State various modes of partition of joint family property. Can a partition of Hindu Joint Family property be reopened? If so explain the circumstances.]

Answer

The term 'property' is derived from the Latin term 'Proprietary' and the French term 'Proprius' which means a thing that is owned. The concept of property has had a crucial place in human life since old times.

The joint and undivided family has hitherto been the normal condition of Hindu Society. The institution of a joint Hindu family is very old. It is a unique institution having no parallel in the whole world. It has evolved from the ancient patriarchal family which can be described as the earliest unit of human society.

The Joint family property consists of:

• Ancestral Property;
• Property jointly acquired by members of the joint family;
• Separate property of a member which is thrown into common stock;
• Property acquired by all or any of the coparcener with the aid of joint family funds.

The division of property into parts is known as Partition. Under Hindu Law, partition means the division of a Joint family to give the coparceners their respective parts of the undivided property. A partition is an act through which a coparcener severs his ties from the undivided joint family.

Modes of partition

The following modes of partition are important:

Partition by mere declaration - An unequivocal indication of desire by a single member of a joint family to separate is sufficient to effect a partition. The filing of a suit for partition is a clear expression of such an intention as was established in the case of Laxmi v. Krishnavenmma, AIR 1966 SC 825. The oral or written communications by a coparcener could be enough to sever the joint status but the communication could be withdrawn with the consent of other coparceners and with its withdrawal partition would not take place.

Partition by Will - Partition may be affected by a coparcener by making a Will containing a clear and unequivocal intimation to the other coparceners of his desire to sever himself from joint family or containing an assertion of his right to separate. In Potti Laxmi v. Potti Krishnamma, AIR 1965 SC 825, the Supreme Court observed,

"where there is nothing in the Will executed by a member of Hindu coparcenary to unmistakably show that the testator intended to separate from the joint family, the Will does not affect severance of status." An ineffective Will, sometimes though not always, if otherwise consented by all adult members may be effective as a family arrangement but as the father of a joint Hindu family has no power to impose a family arrangement under the guise of exercising the power of partition, the power which undoubtedly he has but which he had failed to effectively exercise, cannot in absence of consent of all members bind them as family arrangement".

Conversion to another faith - Conversion of a coparcener to any other religion or faith operates as the partition of the joint status between him and other members of the family. The coparcener, who has converted, no longer possesses the right as he ceases to be a coparcener from the moment of his conversion and he takes his share in the family property as it stood at the date of his conversion.

Marriage under Special Marriage Act, 1954 - Marriage of a Hindu under the Special Marriage Act, 1954 causes severance of joint status.

Partition by agreement - An unequivocal expression of the desire to use the joint family property in certain defined shares may lead the members of the joint family to enter an agreement to effect a partition. The two ideas, the severance of joint status and a de facto division of property are distinct. As partition under the Mitakshara law is effected on severance of joint status, the allotment of shares may be done later. Once the members of the joint family or heads of different branches of the coparcenary agree to the specification of shares. the same can be treated to result in the severance of joint status though the division by metes and bounds may take place later on. As was established in the case of Major Prem Nath Kaushik v. Rajinder Nath, AIR 1986 Del 121.

Partition by arbitration - An agreement between the members of a joint family whereby they appoint an arbitrator to arbitrate and divide the property, operates as a partition from the date thereof. The mere fact that no award has been made is no evidence of a renunciation of the intention to separate. Where all the coparceners jointly have referred the matter relating to the partition of their shares in the joint family to an arbitrator, this very fact expressly indicates their intention to separate from joint status. In such cases even if the award is not given, their intention is not dissipated. As was established in the case of Ramwati v. Khuman, 51 IA 1.

Partition by father - The father may cause severance of sons even without their consent. It is the remnant of the ancient doctrine of "Patria Potestas. The father during his lifetime is competent to effect such partition under Hindu law and it would be binding on his sons. According to Supreme Court's decision in Kalyani v. Narayanan, AIR 1980 S.C. 1173, a Hindu father under Mitakshara law can effect a partition among his sons even in the lifetime of Karta of a joint family and such partition would be binding on them.

Partition by suit - Mere institution of a partition suit disrupts the joint status and severance of joint status immediately takes place. A decree may be necessary for working out the resultant severance and for allotting definite shares but the status of a plaintiff as separate in the estate is brought about by his assertion of his right to separate whether he obtains a consequential judgment or not. As was established in the case of Girjabai v. Sadashiva, AIR 1916 PC 104.

Reopening of Partition

Under Hindu law, the partition is made only once, but there are some exceptions to this rule. The posthumous son can claim a re-partition and so can the heir of a disqualified and absent coparcener. The case of the adopted son also must be included among the exceptions. A partition may also be reopened on the grounds mentioned below:

A son conceived at the time of partition, though not born before partition, can reopen it if a share has not been reserved for him. On the other hand, if a son is begotten as well as born after partition, and if a share is allotted to the father, such an after-born son is not entitled to have the partition re-opened and he is only entitled to succeed to his father's share and his separate or self-acquired property to the exclusion of the other divided sons.

A son begotten as well as born after partition can demand re-opening of partition, if his father, though entitled to a share, has not reserved a share for himself.

A disqualified coparcener after the removal of disqualification or a missing coparcener on his return can reopen the partition.

A partition may be reopened by a person validly adopted to a deceased coparcener (who if existing at the time of the partition would have been entitled to a share) by his widow after the partition. As was held in the case of Sankaralingam Pillai v. Veluchami Pillai, 1943 Mad 309: 205 IC 1: AIR 1943 Mad 43.

A partition may be reopened, if any coparcener has obtained an unfair advantage in the division of the property by fraud upon the other coparceners, as was held in the case of Moro Vishwanath v. Ganesh, 1873 10 Bom HC 444. If in a suit for partition, no fraud is pleaded initially in the plaint, the plea cannot be changed belatedly that the partition was fraudulent. However, fraud vitiates everything, and even a belated plea of fraud cannot be discountenanced. In the case of Santosh v. Jagat Ram, 2010 3 SCC 251, where a consent decree of partition was sought and it was found that a widow was shown to have relinquished her rights, on evidence of fraud being adduced and accepted, the decree of partition was set aside.

Where, after a partition has been made, it is discovered that the property allotted to one of the coparceners did not belong to the family, but a stranger, or that it was subject to the coparcener to whom such property has been allotted is entitled compensation out of the shares of the other coparceners, and the partition may, if the mortgage, necessary, be reopened for readjustment of the shares. As was established in the case of Maruti v. Rama, 1895 21 Bom 333.

Where a partition of the joint property has been excluded from partition by mistake, accident, or fraud, such portion continues to be the joint property of the family, and it must be divided amongst the persons who took it under the partition. It is not necessary in such a case to reopen the original partition.

The law on the subject was very clearly summarised by the Supreme Court in the decision of Ratnam Chettiar v. Kuppuswami, AIR 1976 SC 1 in the form of propositions:

Where the partition is effected between the members of the family, which includes minor coparceners, it is binding on the minors also, if it is done in good faith, and a bona fide manner, keeping into account the interest of the minors.

Where, however, a partition is proved to be unjust and unfair and is detrimental to the interest of the minors, the partition can be reopened at any time. In such a case, the court must protect the interest of the minors. The onus of proof that the partition was just and fair is on the party supporting the partition.

Where there is a partition of immovable and movable properties and the two transactions are distinct and separable or have taken place at different times, it is open to the court to maintain that which is just and fair and reopen only that which is unjust and unfair.

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