Discuss the concept, meaning, and scope of partition under Mitakshara and Dayabahaga Schools. Further, examine the rights of a minor coparcener to claim partition. Decide with reference to case law.

Question: Discuss the concept, meaning, and scope of partition under Mitakshara and Dayabahaga schools. Further, examine the rights of a minor coparcener to claim partition. Decide with reference to case law.

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Answer

Mitakshara School

As per the Mitakshara School of thought, the partition of a joint Hindu family consists of

(a) severance of the joint status

(b) the actual division of property, which in simpler terms refers to partition by metes and bounds. The pre-requisite to a valid severance of joint status requires a clear, unequivocal, and definite expression of intention to partition.

In Giraja Nandani v. Bijendera, AIR 1967 SC 1124 the Supreme Court observed that,

“Partition can only happen by an unambiguous, definite declaration of intention by a coparcener to separate himself from the family. Once this is done, it would amount to the division of status. Whatever the mode may be, once the suit for partition is instituted, then the partition is affected.”

Dayabhaga School

The principle of partition and coparcenary in Dayabhaga School is quite distinct from that of Mitakshara School. As per the Mitakshara School, the coparcenary is formed at the birth of a son. However, as per the Dayabhaga School, the coparcenary starts at the death of the father. So, till the time the father is alive, there exists no coparcenary in the strict sense. The inception of the coparcenary only takes place once the father leaves behind two or more sons after his death.

The main idea behind the coparcenary under the Mitakshara School is the unity of ownership. However, the essence of the coparcenary under the Dayabhaga system is the unity of possession. Every coparcener has a definite share in the property and the share is defined as soon as inheritance falls into place. The birth or death of anyone in the family does not fluctuate the share of a coparcener.

According to the Dayabhaga school, each coparcener has, even whilst the family remains undivided, a defined and certain share in the joint property of which he is owner, though the possession is joint. Partition according to that law consists in separating the share or separating the joint possession as assigning to the coparcener his specific portion of the property.

Minor as a Coparcener

With respect to the rights of a coparcener, Hindu Law does not make any distinction between a minor and a major coparcener. Hence, the rights of a minor coparcener are the same as the rights of a major coparcener. However, there are certain limitations that come along with being a minor coparcener.

Case laws

Bishudeo v. Seogeni, AIR 1951 SC 180 – The Apex Court opined that a minor coparcener also has a right to partition. In this case, it was decided that a suit for partition can be filed on the minor’s behalf either by his guardian or a legal representative.

Pedosuhhaya v. Akkamma, AIR 1958 SC 1042 – The Apex Court held in this case by stating that a minor is an individual with immature intellect. Hence, the duty falls upon the courts to protect the interests of the minor, in a case where the interests of the minor are being squandered by the Karta of the family. Moreover, a guardian or a legal representative can file a suit for partition on behalf of the minor, and the court will initiate such a partition keeping into consideration the best interests of the minor.

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