Partition under Hindu Law

Introduction

A partition is an act by which a coparcener severs his relations with a joint family and loses his status as a coparcener and becomes an independent individual from the links of a joint family. An important consequence of such partition is that the share of coparcener or coparceners seeking partition which is till partition uncertain, fluctuating and unpredictable, becomes specific and definite, as a result of partition, and thus allotted to the respective members.

According to the Mitakshara Law, it is the adjustment of the diverse interests regarding the whole, by distributing them into particular portions of the aggregate. Therefore, Mitakshara partition is used in two distinct senses: firstly, the adjustment into specific shares of the diverse rights of the different members according to the whole family property; secondly; the severance of the joint status, with the legal consequences resulting therefrom. It has been defined as the crystallization of the fluctuating interest of a coparcenary into a specific share in the joint family estate.

According to Lord Westburn– there are two stages in partition under Mitakshara

1. Division of Right – Ascertaining and fixing with an intention to become separate, the share to which each coparcener is entitled.
2. Division of property – Actually making off, and assigning portions of the erstwhile joint estate to individual coparcener in portion to the share of each.

Under the Dayabhaga law, it means the division of property in accordance with the specific share of the coparcener. It means, splitting up joint possession i.e. parting or dividing the share among coparcener according to metes and bound. Division of property in accordance with the specific share of the coparceners. Under the Dayabhaga the essence of coparcenary is unity of possession, while in Mitakshara it is unity of ownership

Under Dayabhaga Law, every adult coparcener whether male or female is entitled to enforce partition.

Persons not entitled to enforce partition under the Dayabhaga Law are:

1. Sons, Grandsons, and great-grandsons have no birth interest in ancestor property against their father, so there is no right for partition.
2. It considers the illegitimate son of shudra to become a coparcener with legitimate sons when they inherit the property after the death of the father.
3. Father’s wife-no such right
4. Childless stepmother not entitled to a share after partition

Property liable for Partition

It is only the coparcenary property that is subject to the partition. The separate property is not liable to partition at all, as it belongs absolutely to the owner thereof.

Secondly, the property to which the law of primogeniture applies, cannot be divided, e.g., a Raj. Nor can family idols and place of worship can be divided. Similarly, the following properties are not liable to partition:

1. Impartible estate i.e., the property which descends to one member only, either by custom or under any provision of law or by terms of grant.
2. Property indivisible by nature, e.g., ponds, staircase, passage
3. Family idols and relies which are the object of warship
4. Separate property of a member
5. The places of worship and sacrifice or the property which has been dedicated to religious and charitable purposes.
6. The well and the right to draw water from the well
7. The ornaments and the dress materials are given to the wives of the coparceners
8. The headship of a Math

Manu says- the following properties are not subject to division

1. Properties are indivisible by nature like Dress, vehicles, Ornaments, Cooked food, Water, and female slaves, such as roads, gardens, utensils, documents, right to way, furniture, etc.
2. Properties meant for pious use or scarifies, objects for worship.
3. Separate property of a member

In respect of those properties, three methods of adjustment are available-

1. Maybe enjoyed by coparcenary by jointly or by turn
2. Maybe allotted to the share of a coparcener and its value adjusted.
3. Maybe sold and distributed the incident

Deductions and Provisions

Some provisions must be made out of the property liable to partition before any partition is affected.

1. Debts incurred for joint family.
2. Personal debts of the father are not incurred for illegal or immoral purposes.
3. Maintenance of dependent female members and disqualified heirs.
4. Marriage expenses of unmarried daughters of the last male holder but not of the collaterals.
5. Expenses for the funeral ceremony of the widow and the mother of the last male holder.

Persons who are entitled to Demand Partition

Every coparcener has a right to partition and entitle to share in the partition.

1. Father- he can impose a partition, partial or total between his minor son and himself with bonafide intention, else, it will reopen. In the case of a major son and father, it should be by mutual consent.
2. Sons and Grandsons, and a great-grandson. Under Bombay School, the son has no right to partition without the assent of his father, if the father joins with his own father, and in the case of Punjab Customary Law, as under Punjab Customary laws, the son has no right by birth.
3. Son Born after Partition- according to Vishnu and Yajnavalkya the partition should be reopened to give the share after the born son. However, Gautama, Manu, and Nerada say the after born son could get the share of his father alone

According to Mitakshara, we have a few rules for this-

1. Son conceived at the time of Partition but born after it – a person in the womb is equated to the person who exists. The tax lay down that if the pregnancy is known the partition should be postponed till the time childbirth if the other coparceners are not ready for this an equal share should be reserved if the child born son share should be allowed to them, in case female it should be expanded on her marriage.
2. Not in the womb when partition takes place if the pregnancy is not known and no share has been reserved then the partition should be reopened after childbirth.
3. Son begotten and born after partition- in this case, two general rules under Mitakshara
   1. When Father has taken his share in the partition- the son becomes the coparcener with his father.
   2. When Father has not taken his share in the partition – the son has a right to reopen the partition and get his share.
4. Adopted Son- he has the right if partition takes place after adoption, but if partition takes place before adoption he has no right.
5. Illegitimate Son- not entitled for partition and share but for maintenance only.
6. Son void marriage and annulled marriage-not entitle.
7. Minor Coparcener- no distinction between major or minor.

Persons not entitled to partition but entitled for share after partition

No female has a right to partition but if partition takes place, some female (father’s wife, mother, and grandmother) has a right to share in the partition. However, after the 2005 amendment, daughters are also entitled to it.

How Partition is Affected?

1. Severance of Joint Status or interest-expression of intention- one member of the joint family can express his intention to partition, even though no actual partition takes place.
2. by Notice
3. by Will
4. Conversion to another Religion.
5. Marriage under the special marriage act.
6. by agreement
7. by arbitration
8. by Father
9. by suit

Allotment of Shares

Sons are not entitled to any share in presence of father. The share of the deceased coparcener passes to his heir.

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