Hbgyjbhnznansbshshsbsbsbsbsbsbdhdndndhzksndhd

1. ■ FAMILY LAW-II
■ TOPIC
Partition

2. ■ Partition means to divide into parts or to separate – under Hindu law, division or splitting
of joint family property into smaller, separate and individual units, with conferment of
separate status on the undivided coparceners.
■ Partition is the adjustment of diverse rights regarding the whole, by distributing them or
particular portions of the aggregate.
■ Under Mitakshara School, partition means two things:
■ 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.
■ Partition is a matter of individual volition, and reduces the members to the position of
tenant-in-common requiring only a definite, unequivocal intention on the part of a
member to separate and enjoy his share in absolute severalty. As soon as the shares of the
coparceners are defined, the partition is deemed effected. It is not necessary that there
should be an actual division of property by metes and bounds.
Meaning and Concept

3. ■ Subject Matter of Partition
■ Entire Joint Family property is subjected to partition – does not include separate or self acquired
properties.
■ The existence of Joint family property must be proved by the person seeking partition (Janardan
Pandey v. Karoo Pandey, 1998).
■ If the property was purchased out of individual funds and it was not proved that joint family property
existed, no partition can be claimed from such property.
■ Mrutunjay Mohapatra v. Prana Krushna Mohapatra
■ The elder brother had purchased property from his independent income and it was held that such
property cannot be included in joint family property for partition at the instance of younger brother.
■ If a Joint family is in possession of property held by permanent lease, such property is also subjected
to partition
■ Properties which are capable of division
■ The general rule is that the entire joint family property is capable of being partitioned.
■ There are few exceptions to it – by their very nature, incapable of division, then such
properties cannot be partitioned.

4. ■ Manu: “A dress, a vehicle, ornaments, cooked food, water and female slaves,
property destined for pious use and sacrifices, and pasture ground, they declare
to be indivisible.
■ According to Vijnaneshwara: “Water or a Reservoir of it, as a well or the like,
not being divisible, must not be distributed by means of the value but is to be
used by co-heirs by turns”
■ Ashamulla v Kalli
■ If the property can be partitioned without destroying the intrinsic value of the
whole property, or of the shares, such partition ought to be made.

5. ■ Methods of adjustments of the property indivisible in nature:
■ 1. May be enjoyed by the coparceners jointly, or by turns. For example, wells, bridges, temples and
idols.
■ 2. may be allotted to the share of the coparcener and its value adjusted with the other property allotted
to other coparceners.
■ 3. May be sold and sale proceeds distributed among the coparceners.
■ Dwelling house –The dwelling house should not be partitioned and the court should also try to make
an arrangements which will leave the dwelling house entirely in the hands of one or more coparceners.
■ If no arrangement which is agreeable to the parties, or which is equitable can be possibly made, the
dwelling house may be sold and sale proceeds divided among the coparceners. (The Partition Act,
section 2)
■ Family Shrines, temples and idols
■ Such subjects can neither be divided nor be sold. The possession may be given to the senior-most
coparcener or to a junior member (if he happens to be more religious and suitable among others) with
the liberty to other coparceners to have an access for the purpose of worship (Damodar v. Utarmma,
(1893) 17 Bom. 271)
■ Staircases, wells, etc
■ Staircases, courtyards, wells, tanks, pastures, roads and the like things cannot be partitioned. In respect
of them, an arrangement should be made so that they can be used jointly.

6. ■ Deductions and Provisions
■ 1. Debts
■ 2. Maintenance
■ 3. Marriage expenses of daughters, and
■ 4. Performances of certain ceremonies and rites.
■ Debts
■ A provision for the payment of outstanding debts binding on the joint family should
be made.
■ Such debts may include:
– 1. debts taken by the Karta for a purpose binding on the joint family,
– 2. Untainted personal debts of the father, in case joint family consists of the father and
sons.
■ No provisions should be made for the individual debts of the coparceners.

7. ■ Maintenance
■ Apart from the coparceners, who have the rights in joint family property –
there are other members of the joint family, those having only the right to be
maintained out of the joint family funds – provision should be made for their
maintenance.
■ Such persons includes:
– 1. disqualified coparceners and their immediate dependents such as wife,
daughter, son and Illegitimate son (after Amendment Act 2005, daughters has
been conferred with the rights of being a coparcener).
– 2. Mother, stepmother, grandmother and other females (Commissioner of Income
Tax v. Bhagawati, 1947 P.C. 143);
– 3. widowed daughters of deceased coparceners.

8. ■ Marriage
■ A provision should be made for the marriage of unmarried daughters, when the
coparcenary consists of father and sons (Chandra v. Nanak, 1975 Del. 175.).
■ The scale of expenses must be commensurate with the wealth of the family (R.V.
Manika v. V.M. Thangavelu, 1964 Mad. 35).
■ No provision has to be made for
– the marriage of unmarried coparceners (Ramalinga . Narayan, 1922, 40 I.A.
168); or
– for the daughters of other coparceners, since the marriage is the responsibility
of their respective fathers (Ramlal v. Kanhaiyalal, 1972 M.P.L.J. 805).
■ Partition of ceremonies
■ Provisions should be made with respect to the ceremonies necessary after the death
i.e.,:
– Funeral expenses (Vaidyanatha v. Ayyaswami, 1909, 32 Mad. 191,
– Other essential ceremonies, such as upnayanana (Jairam v. Nathu, 1907 31 Bom. 54.).

9. ■ Persons who have a Right to Partition
■ Father
■ The father has absolute right to partition between himself and sons – can also
impose partition on his sons inter se.
■ Under Mitakshara School, this power of effectuating partition can be
exercised on his separate property as well as the joint family property.
■ Consent or dissent of sons is immaterial – however, it is necessary that such
acts on behalf of father must be done bonafidely, he should not be unfair to
anyone (Approra v. CIT, 1983 S.C. 409).
■ The partition can be re-opened by the coparceners if father has acted unfairly,
fraudulently or vitiated by favouritism (Venakatasubramania v. Eswara, 1966
Mad. 266).
■ An unequal partition may be binding on the sons as family arrangement if
acquiesced in by them.

10. ■ Persons who have a Right to Partition
■ Son, Grandson and Great-grandson
■ The general rule is that every coparcener has a right to partition – subjected to two
exceptions:
– 1. A disqualified coparcener has no right to partition, and
– 2. In Bombay School, sons cannot ask for partition against their father if the father is
joint with his own father or a collateral.
– Illustrations:
– a. A joint family consisting of A and his two sons B and C and two grandsons BS and CS.
– b. A joint family consisting of two brothers B & C and their sons, BS and CS.
■ Jaswant Lal v. Nichhabhai, 1964 Guj. 283 – In this case, the court has observed that
if the severance of status between father and his father or other collateral has taken
place, the sons can seek partition by metes and bounds.
■ K. R. Sudha v. P.R. Sasikumar – the application by mother to alienate the minor’s
property was approved by the court after recognizing her as minor’s guardian.

11. ■ Persons who have a Right to Partition
■ Minor Coparcener
■ Under Hindu law, no distinction is made between the coparceners, whether they are
major or minor, in respect of their rights in the joint family property.
■ Alongside major coparceners, a minor coparcener is also entitled to seek partition out of
the Hindu joint family property. A suit for partition may be filed on behalf of minor by
his next friend or guardian (Nilkanth v. Ram Chandra, 1991 Bom. 10).
■ In the cases of minors, the court plays an important role as parens patrie and has the
duty to protect the interests of the minors wherever there is any ill-treatment,
discrimination or unfavorable disposition of property towards minor by the Karta.
■ When the suit for partition has been filed by a next friend or the guardian, the court has
to be satisfied that the partition will be for the benefit of the minor; otherwise, the
partition will not be allowed.
■ With regard to the question that ‘from which date the severance of status takes place?’,
the Supreme Court in Kakumanu v. Kakumanu (1958 S.C. 1042) stated that it takes place
from the date of institution of the suit of partition.

12. ■ Persons who have a Right to Partition
■ Son born after partition
■ There is a conflict of views with regard to the position and right to partition of a son
born after the partition.
■ According to Vishnu and Yajnavalkya, the partition should be reopened to give share to
the after-born sons (Vishnu XVII, Yajnavalkya, II, 122).
■ Gautama, Narad, Manu and Brihspati took the view that the after-born son could get the
share of his father alone (Gautam XXVIII; Narad XIII; Manu, IX, 216; Brihspati, XXV,
18-19).
■ The Mitakshara reconciled the above-mentioned conflict of views and stated that the
views by Gautam, Narad, Manu and Brihspati lay down the general rule whereas Vishnu
and Yajnavalkya lay down the particular rule applicable to the son in womb at the time
of partition.
■ After considering the above-mentioned concerns, two situations may arise:
– 1. Son conceived at the time of partition but born after partition (Child in womb); and
– 2. Son begotten and born after partition.

13. ■ Persons who have a Right to Partition
■ Son conceived at the time of partition but born after partition (Child in womb)
■ The son who was in the womb of his mother at the time of partition and was
subsequently born alive, is treated as if he was in existence at that time (Jagat Krishna v.
Ajit Kumar, AIR 1964 Ori 75).
■ The attempts should be made to postpone the partition till the birth of the child who was
in the womb at the time of partition and such pregnancy was known to others – if the
coparceners do not agree to the postponement, then a share equal to the share of son
should be reserved for the child in the womb.
■ If the child is born a son, he takes the share so reserved and if the child born is daughter
then – maintenance with regard her marriage shall be made out of that reserved share –
After Amendment Act 2005, she will take that reserved share as a coparcener.
■ In case no share is reserved for the child in womb, then re-opening can be demand after
his birth (Yekayamain v. Aganiswarian, 1870 Mad. H.C.R. 307).
■ If the pregnancy was not known and a child was born subsequent to partition, such after-
born child can get the partition re-opened (this rule applies to the partition between
father and sons).

14. ■ Persons who have a Right to Partition
■ Son begotten and born after partition
■ In the situation where the child was begotten and born subsequent to the partition, the
rights of such child to demand partition depend upon whether had taken a share himself or
not.
■ In the first situation, where father has taken or reserved his share for himself, the after-
born child will become the coparcener with the father. After the death of the father he
takes not only this estate by survivorship but he also inherits the entire separate property
of his father to the exclusion of divided sons (Kalidas v. Krishan, 1869, 2 B.L.R. 103
F.B.).
■ But after HSA, 1956, the rule of exclusion stands abrogated under section 8.
■ In the second situation where father has not reserved his share for himself, the after-born
child has a right to get the partition re-opened and get the estate redistributed as it then
stood (Chennagamma v. Munisami, 1897, 20 Mad. 75).
■ In the case of renouncement by a coparcener, the child born after the renouncement
cannot claim the status of a coparcener with the remaining members of the undivided
family (Anjaneyulu v. Ramayya, 1965 A.P. 177 F.B.)

15. ■ Persons who have a Right to Partition
■ Adopted Child
■ On adoption, the adopted child becomes the permanent part of the adoptive
family – all the rights as to that of natural born child started flowing – severed all
the ties from the natural family.
■ He has the right to survivorship in the adoptive family – entitle to takes his share
in the event of the death of the father.
■ Under Dayabhaga law, an adopted son, in comparison to the natural son, takes
one-third share(1/3); in Bombay and Madras, one-fifth share(1/5); and in
Banaras, one-forth (1/4) of the share of natural born son.
■ After the enactment of HAMA-1956, distinction between both has been cleared, section
12 lays down that “an adopted child shall be deemed to be the child of his or her
adoptive father or mother for all purposes…”.

16. ■ Persons who have a Right to Partition
■ Illegitimate Child
■ Illegitimate sons can be categorized into two ways:
– The Dasiputra or a son born to a concubine exclusively and permanently kept by a
Hindu, and
– An illegitimate son born of a woman who is not a dasi.
■ General rule with regard to the illegitimate child is the same i.e., an illegitimate child
does not have any right to demand a partition and further, they are not entitled to a share
on partition. Though, illegitimate child is entitle to maintenance and provision with
regard to the same should be made.
■ Among the Sudras, the dasiputra has somewhat a superior position. The Mitakshara
states the position as: “A dasiputra obtains a share by the father’s choice or at his
pleasure, but after the death of father, if there be sons of wedded wife, let these brothers
allow dasiputra to participate for half a share as to that of one brother’s allotment”.
(Mitakshara 1, XII, 2).
■ During the lifetime, the illegitimate son can take only such share as his father may give
him (Singhali Ajit Kumar v. Ujayar Singh A.I.R. 1961 S.C. 1334).

17. ■ Illegitimate Child
■ In Vellaiayappa v. Natarajan (I.L.R. 16 Bom. 29 F.B.), the judicial committee has observed as:
■ “The Illegitimate son of a sudra by a continuous concubine has the status of a son, and that he is
a member of the family; that the share of inheritance given to him is not merely in lieu of
maintenance, but in recognition of his status as a son; that where the father has left no separate
property and no legitimate son, but was joint with his collaterals…the illegitimate son is not
entitled to demand a partition of the joint family property in their hands, but he is entitled as a
member to maintenance out of that property…”
■ It was approved by the Supreme Court in Gur Narain Das v. Gur Jahal Das (1952 S.C.J. 305: A.I.R.
1951 S.C. 225) that an illegitimate son is the member of his father’s HUF and highlighted the well settled
three principles:
– Firstly, the illegitimate son does not acquire, by birth, any interest in his father’s estate and he
cannot, therefore, demand partition against his father during his lifetime,
– Secondly, On his father’s death, the illegitimate son succeeds as a coparcener to the separate estate
of the father along with the other legitimate sons and is entitled to enforce partition against them,
and
– Thirdly, on a partition between a legitimate and illegitimate son, the illegitimate son takes only one-
half of what he would have taken if he was a legitimate son.
■ After HSA-1956, an illegitimate son is not recognized as a heir of his putative father – Hence, such rule
is not valid.

18. ■ Illegitimate Child
■ In Revanasiddappa v. Mallikarjun (2011 (86 ) ALR 450), it was held by the Supreme
court that:
■ Child born in illegitimate relationship/void marriage is innocent and is entitled to all
rights to property to which his parents are entitled whether ancestral or self-acquired
property…such children are only entitled to the property of their parents and not of any
other relation.

19. ■ Partial Partition
■ There is a general presumption that every presumption is the total partition. The person who is
asserting that the partition is otherwise, is under obligation prove such (Divakar v. Prabhakar,
1985 All. 133).
■ On partial partition, the family does not cease to be joint family and the joint business continues
to be joint (Narasingh v. Adikanda, 1972 1 CWR 977). When the property comprised of an
agricultural land and a house, both can be partitioned at different times (Dhapibai v. Tejubai,
AIR 2013 MP 149).
■ A partial partition may be:
– Partial as to property, or
– Partial as to persons.
■ Partial Partition with respect to property
■ In the case of Ramalinga v. Narayan (1992 P.C. 90), the Privy Council stated that it is open to the
coparceners to sever their interest in respect of part of joint property, while retaining the status of joint
family in respect of the other properties.
■ Illustration: A HUF consisting of 3 brothers, owns 30 acres of land and a house. They may divide the land
with 10 acres for each and may maintain the undivided status with respect to the house.
■ If some coparceners want partition, while the others do not, those who want partition may take their share
and the rest will continue to remain joint.

20. ■ Partial Partition
■ Partial as to coparceners
■ If one coparcener or a group of coparceners want to separate, they cannot impose separation on
others inter se. In Palani v. Muthuvenkataohala (1925 P.C. 126), it was stated by the Privy
Council that there is no doubt that a coparcener can separate himself from the others and no
coparcener is entitled to have his share in the joint family property ascertained and portioned
off for him, and the remaining coparceners without any special agreement among themselves,
may continue to be coparcener and enjoy the joint family status.
■ No express agreement to remain joint on the part of the remaining coparceners is necessary. It
will be inferred from the conduct of the remaining coparceners as the way they carried out their
joint business after the separation of the other coparceners.
■ In Meva Devi v. Om Prakash Jagannath Agarwal (AIR 2008 CHG 13), a HUF comprised of a
father, his wife and three sons. He was the Karta of huge JFP and as well as having separate
property. In 1949, two major sons S1 and S2 expressed their interest to be separated. A partition
was effected and they took their respective shares. Now, joint family remains with the father,
his wife and the third minor son. One of the outgoing son requested father to allow him to
reside in the joint family hose in the absence of his own pacca house. Upon the death of the
father, the youngest son inherited the whole property and filed a suit for eviction against the
elder resident brother. The Court accepted his proposition and held that once partition had taken
place and the son was given and accepted his share, he had no further claim on the rest of the
property and only youngest brother was entitled in law to reclaim the possession of this
property from his separated elder brother.

21. ■ Modes of Effecting Partition
■ Severance of Joint Status or Interest
■ Formation of Intention
■ Every coparcener has a right to seek partition at any time even without the consent of other
coparceners. All that the coparcener has to do is to form an unequivocal intention to separate
himself from the joint family.
■ He must be clear about his demand and that he no longer believes in living jointly but to
separate from the joint family.
■ Communication of such Intention
■ After the formation of intention of partition, the same must be communicated to others and the
most appropriate person to whom it should be communicated is, the Karta. In his absence, such
communication can be brought to the notice of other coparceners.
■ The formation and declaration must be clear and unambiguous. There should not be any ifs and
buts about it, nor should there be any hesitation. It should be free from any ambiguity or
uncertainty and the fact that the coparcener wants a partition should be evident from his words.
■ A simple ‘I want a partition from joint family and want to lead an independent life’; ‘I want a
partition and demarcation of my share’, etc. are enough to indicate a clear intention to effect a
severance of status.

22. ■ Modes of Effecting Partition
■ Communication of such Intention
■ If there are various coparceners living at different places, far from each other in remoter
areas. What will be the date of severance when the letter by one coparcener has been
sent to all of them through post and received by them at different dates?
■ The same scenario was adjudged by J. Madhavan Nair in Rama Ayyar v. Meenakshi
Ammal (1931 MW.N. 527). It was held that even if it should be claimed that the receipt
of the notice by the other coparcners is material, the severance of status related back to
the date when the communication was sent.

23. ■ Modes of Partition
■ Partition by suit
■ When a coparcener files a suit for partition, it amounts to the unequivocal intimation of the
intimation of separation and consequently, severance of status takes place from the date of
institution of suit.
■ A decree may be necessary for the working out the result of severance i.e., division of property
by metes and bounds, but severance has taken place as from the place of filing of suit and not
from the date of decree.
■ The person who has filed the suit, is having the burden to prove the property in question is the
joint family property (Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade,
2007 S.C. 218).
■ In Kedar Nath v. Ratan Singh (190 37 I.A. 161), it was stated by the Privy council that if the
suit is withdrawn before trial, the plaintiff not desiring separation, there is no severance of
status (before trial here means before summons are served on defendants).
■ In K. Radhakrishna v. Satyanarayan (1949 Mad. 173), the Madras High Court has denied to
approve the withdrawal of the partition suit by the plaintiff in the event of death of one of the
defendant after summons have been served. The HC said that a division of status had already
been brought about by the plaintiff and therefore its was not open to him to revoke the
intention.

24. ■ Modes of Partition
■ Partition by Agreement
■ Intention being the real test, it follows that an agreement among coparcener to hold and
enjoy the property in defined shares as separate owners operates as partition although
there may have been no actual division of the property by metes and bounds (Grijabai
v. Sadashiv, 43 Cal. 1031; Appovier vs Rama, 1866 11 M.L.A. 75). In such cases, the
interest is divided though the property remains undivided.

25. ■ Reopening of Partition
■ “Once is a 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 for all irrevocably.” (Manu, IX, 47)
■ Certain exceptions are recognized against this rule. According to Manu, “If after all the debts
and assets have been duly distributed according to the rule, and property be afterwards
discovered, one must divide it equally” (Manu, IX, 218)
■ Yajnavalkya: “the settled rule is that co-heirs should again divide on equal terms that wealth
which being concealed by one co-heir from another is discovered after partition”. (Yajnavalkya
II, 126).
■ The matter of re-opening of partition can be looked at from two angles:
– 1. Readjustment of properties,
– 2. Re-opening of partition.
■ Readjustment of properties
■ If any property is discovered after partition by metes and bounds had taken place, readjustment
should be made. Some properties may be left out from the partition by mistake or oversight, or
some lost properties may be recovered later on, or because some of the properties were given in
mortgage.
■ In all such cases, where readjustment is possible, a partition need not be opened (Krishnak v.
Janki, 1951 T.C. 38).

26. ■ Reopening of Partition
■ Re-opening of partition
■ Where readjustment of properties is not possible, the entire partition has to be reopened.
Generally a partition can be re-opened if it was obtain by fraud, coercion,
misrepresentation or undue influence.
■ When the valueless property has been given to one of the coparcener as valuable
property or where property which does not belong to the joint family has been allotted
to some coparcener (M. Sheshanna v. M Shankarayan, 1953 S.C. 2795).
■ If no share has been reserved for the child who was in the womb at the time of partition,
the partition can be re-opened at his instance (Hammant v. Bhimacharya, 1976 S.C. 1).
■ When the child was conceived and born after the partition whereby father has not taken
the share at the time of partition, such partition can be re-opened at the instance of after-
born child (Satyabadi v. Sankiratan, 1974 40 C.L.T. 568).
■ If a coparcener was absent at the time of partition and no share was allotted to him, he
can get the partition re-opened (Umakantha v. lalithaban, 1988 2 H.L.R. 37 Kant.).