The present slides relate to the concept of Partition in the Hindu law. Useful for Law students and Professionals.

1. PARTITION
LAWS
IN
INDIA
-SHIVANI SHARMA
-ASSISTANT PROFESSOR
-SARDAR PATEL SUBHARTI INSTITUTE OF LAW

2. PARTITION EXPLAINED
• Partition, is an act by which a coparcener severs his relations with
joint family and loses his status of coparcener and becomes an
independent individual from the links of 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.

3. IN SIMPLE LANGUAGE
• Partition means a numerical division of property and
bringing a Hindu Joint family to an end.
• The joint family ceases to be joint and transforms into a
nuclear family after partition. In a coparcenary, the
coparceners hold the property as one common unit,
partition means the fixing of the shares of each coparcener.

4. TYPES OF PARTITION
PARTITION
TOTAL PARTIAL
SUCCESSIVE

5. PARTITION
UNDER
MITAKSHARA SCHOOL

6. • 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 into two distinct senses:
1. firstly, the actual division of the property in accordance with the
specified shares – partition by metes and bounds; - DE FACTO
2. secondly; the severance of the joint status, with the legal
consequences resulting therefrom. (desire to severe himself to enjoy
his share separately from others) – DE JURE

7. • 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.

8. • In State Bank of India v. Ghamandi Ram, the Supreme Court
observed:
“A coparcenary under the Mitakshara School is a creation of law
and cannot arise by act of parties except in so far that on adoption
the adopted son becomes a coparcener with his adoptive father as
regards ancestral properties of the latter”
• The partition under Mitakshara School has been defined as the
crystallization of the fluctuating interest of a coparcenary into a
specific share in the joint family estate.

9. FEATURES OF MITAKSHARA
COPARCENARY
1. First, the lineal male descendants of a person up to third generation,
acquire on birth ownership in the ancestral properties of such
person,
2. Secondly, that such descendants can at any time work out their
rights by asking for partition;
3. Thirdly, that as a result of such co-ownership the possession and
enjoyment of properties is common;

10. 4. Fourthly, that till partition, each member has got ownership
extending over the entire property conjointly with the rest;
Unity of Ownership- i.e., the ownership of property is not vested in a
single coparcener. It is vested in whole body of coparcenary. According to
the true notion of an undivided family governed by the Mitakshara law,
no individual member of that family whilst it remains undivided, can
predicate, of the joint and undivided property, that he has a definite
share.

11. • In Thammavenkat Subbamma v. Thamma Ratamma, the Supreme
Court affirming the above view held that the essential feature of
Mitakshara coparcenary is unity of ownership and community of
interest. No coparcener has any definite share in the coparcenary
property although his undivided share is existent there, which
increases with the death and decreases with the birth of any
coparcener. The coparcener acquires an interest in coparcenary
property by birth, which is equal to that of his father.

12. 5. Fifthly, no alienation of the property is possible unless it be necessity,
without the concurrence of the coparceners;
6. Sixthly, that the interest of the deceased member lapses on his death
to the survivors;
7. The interest of a coparcener in the coparcenary property is a
fluctuating interest which is liable to diminish with the birth and bound
in increase with the death of any coparcener in the family.
So long the family remains united; no individual coparcener can
predicate that he has a definite share in the property of the family.

13. • Recently, in Munni Lal Mahto and others v. Chandeshwar Malito and
others, the Court upholding the above view held that if any coparcener
of joint Hindu family transfer the coparcenary property by way of gift
without consent of other coparceners, it is void, because all the
coparceners are the owners of entire joint-family property and joint
family continues, and the coparcenary interest is an indeterminate. It
becomes determinate only when the states of jointness is broken.

14. 8. There is community of interest in the coparcenary property. The moment a
person is born in the family, he acquires an interest in the coparcenary
property in the sense that he has a right of common enjoyment and common
use of all the properties, because as soon as he is born as a son, he assumes
the membership of the community.
As it has been rightly observed by the Privy Council that “there is community
of interest and unity of possession between all members of the family.”
No coparcener can say with certainty that he is entitled to one half or one
fourth as it is the essence of coparcenary property that there is community of
interest and unity of possession.

15. 9. One of the distinctive features of coparcenary is that the coparcenary
interest of a coparcener in coparcenary property on his death does not
devolve on his heirs by succession but on the other hand it passes by
survivorship to the other coparceners. Thus right by birth and right of
survivorship are necessary incidents of community of interest and unity
of ownership, which signify joint possession not an exclusive possession.
10. In Mitakshara coparcenary no female can be its members, though
they are members of joint family. Even the wife who is entitled to
maintenance enjoys only the right to maintenance but she can never
become a coparcener.

16. 11. All the members of coparcenary are entitled to maintenance by birth
out of joint family property. They continue to enjoy this right so long the
coparcenary subsists. Where any member fails to get any share on the
coparcenary property even after partition he retains the right of
maintenance.
Some special provisions have to be made for them at the time of
partition. Female members and other male members who do not get a
share on partition such as unmarried daughters, idiots or lunatics, are
entitled to maintenance out of joint family property.
Unmarried daughters have a right to be married out of joint family
funds.

17. PARTITION
UNDER
DAYABHAG SCHOOL

18. • Under the Dayabhaga Law, it means 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. – Partition by metes and bounds

19. FEATURES OF DAYABHAG COPARCENARY
1. Under the Dayabhag law the sons do not acquire an interest by
birth
2. Under the Dayabhag each heir hold a determined share
3. Under Dayabhag law female could be a coparcener under certain
limited conditions.
4. Under the Mitakshara the ancestral property cannot be disposed of
by the father without the consent of the coparceners, whereas under
the Dayabhag such disposition is possible.

20. 5. Under the dayabhag, the sons do not enjoy any right to demand
partition even of ancestral property during the lifetime of the father
6. There is exclusiveness of possession over the joint family property
under the dayabhag law.
Under the Dayabhaga school every coparcener takes a definite share in
the property and he is the owner of that share which is defined
immediately only after the inheritance falls in.

21. • Commissioner Of Wealth Tax, West Bengal Vs. Bishwanath Chatterjee And
Others –
“The essence of a coparcenary under the Mitakshara law is unity of ownership. On
the other hand, the essence of a coparcenary under the Dayabhaga law is unity of
possession. Every coparcener takes a defined share in the property, and he is the
owner of that share. That share is defined immediately the inheritance falls in. It
does not fluctuate with births and deaths in the family. Thus if A dies leaving
three sons, B, C, and D, each one will be the owner of his one-third share. The
sons are coparceners in this sense that possession of the property inherited from A
is joint. It is the unity of possession that makes them coparceners. So as long as
there is unity of possession, no coparcener can say that a particular third of the
property belongs to him; that he can say only after a partition. Partition then,
according to the Dayabhaga law, consists in splitting up joint possession and
assigning specific portions of the property to the several coparceners. According to
the Mitashara law, it consists in splitting up joint ownership and in defining the
share of each coparcener.”

22. SIMILARITIES
BETWEEN
DAYABHAG AND MITAKSHARA

23. SIMILARITIES
1. According to the both systems, the true test of partition lies in the
intention to separate.
2. The purchaser of a fractional share in the property of the joint family may
sue for partition according to both schools.
3. According to both the systems, a grand-mother cannot herself demand a
partition.
4. Brothers take equal shares on partition in both the schools of Hindu law.
5. In both the systems each branch takes per stirpes as regards every other
branch but the members of each branch take per capita as regards each
other.

24. PROPERTY
LIABLE FOR PARTITION

25. PROPERTY THAT CAN BE PARTITIONED
• It is only the coparcenary property which 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.

26. • Similarly, the following properties are not liable to partition:
1. Impartible estate i.e., 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 object of worship
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 rights to draw water from the well
7. The ornaments and the dress materials given to the wives of the
coparceners
8. The headship of a Math

27. • Manu says- following properties are not subject to in division
1. Properties indivisible by nature like Dress, vehicle, Ornaments, Cooked
food, Water and female slaves, as road, garden, utensils, documents, right
to way, furniture etc.
2. Properties meant for pious use, or scarifies, object for worship.3.
3. Separate property of a member
• According to Vijneshwara – “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”
• Smritikars are of the view that Dwelling house shall not be Partitioned.
• 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”

28. • Section – 2- Partition Act, 1893 –
“Whenever in any suit for partition in which, if instituted prior to the
commencement of this Act, a decree for partition might have been
made, it appears to the court that by reason of the nature of the
property to which the suit relates, or of the number of the share holders
therein or of any other special circumstance, a division of the property
cannot reasonably or conveniently be made, and that a sale of the
property and distribution of the proceeds Would be more beneficial For
all the shareholders, the court may, if it thinks fit, on the request of any
of such shareholders interested individually or collectively to the extent
of one moiety or upwards direct a sale of the property and a distribution
of the proceeds.”

29. • In respect of those properties three methods of adjustment are available-
1. may be enjoyed by coparcenary by jointly or by turn
2. May be allotted to the share of coparcener and its value adjusted.
3. May be sold and distributed the incident
• 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 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 .

30. PERSONS WHO ARE
ENTITLED TO DEMAND
PARTITION

31. • Every coparcener has a right of partition and entitle for share in
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
case of major son and father, it should be by mutual consent.
2. Sons and Grandsons, and grate grandson- Under Bombay School,
the son has no right partition without the assent of his father, if the
father is join with his own father and in case of Punjab Customary
Law, as under Punjab Customary law son have no right by birth.
3. Son Born after Partition- according to Vishnu and Yajnavalkya the
partition should be reopened to give the share after born
son. However Gautama, Manu, Nerada says the after born son
could get the share of his father alone

32. • According to Mitakshara we have few rule for this-
1. Son conceived at the time of Partition but born after it – person in
the womb is equated the person exist. The tax lay down that if the
pregnancy is known the partition should be postponed till the time
child birth, if the other coparceners are not ready for this a equal
share should be reserve if the child born son share should be allowed
to them, in case female it should be expand on her marriage.
2. Not in the womb when partition take place if the pregnancy is not
known and no share has been reserved then the partition should be
reopen after childbirth.

33. Son begotten and born after partition- in this case two general rule under
Mitakshara
a) When Father has taken his share in the partition- son become the
coparcener with his father.
b) When Father has not taken his share in the partition – son has a right to
reopen the partition and get his share.
4. Adopted Son- he has right if partition take place after adoption, but if
partition take place before adoption he has no right.
5. Illegitimate Son- not entitle for partition and share but for maintenance
only.
6. Son out of void marriage and annulled marriage-not entitled.
7. Minor Coparcener- no distinction between major or minor.

34. 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 for share in partition.
However, after 2005 amendment, daughters are also
entitled for it.

35. HOW PARTITION IS
AFFECTED?

36. 1. Severance of Joint Status or interest-expression of intention- one member
of joint family can express his intention to partition, even though no actual
partition take place.
2. by Notice
3. by Will
4. Automatic severance of Status - Conversion to another Religion.
5. By Conduct
6. by agreement
7. by arbitration
8. by father
9. by suit
• Registration of Partition deed is compulsory for property more than Rs. 100

37. RULES
REGARDING
PARTITION

38. • RULE – 1 - DIVISION BETWEEN FATHER AND SONS: (not in Dayabhag)
A(1/4)
B(1/4) C(1/4) D(1/4)
• RULE – 2 - DIVISION BETWEEN BROTHERS:
A B C D
(1/4 each)

39. • RULE – 3 - DIVISION AMONG BRANCHES:
A (1/4)
S (1/4) S1 (1/4) S2
(1/4)
SS SS1 SS2 SS3 SS4 SS5
(1/12) (1/12) (1/16) (1/16) (1/16) (1/8)

40. PROBLEM
(P)
(B) (C)
D (E) (F) (G)
D1 D2 D3 E1 F1 F2 G1 G2 G3
G4

41. REOPENING
OF
PARTITION

42. • Under the Shastric law, Manu says ‘once a partition
is made, once a damsel is given in marriage and
once a gift is made is irrevocable and irretraceable.’
• A partition is generally irrevocable.
• The logic behind is that erstwhile coparceners hold
their shares as their separate and exclusive
property, they may enter into transactions relating
to them, so as to create valid titles in favour of even
third parties.

43. • However, there are certain exception to the principle
that “shares are divided only once.”
• It may become imperative in certain situations to have
redistribution of the properties in order to prevent gross
injustice to the members of the family.
• However, a plea that the partition was unfair cannot be
countenanced when the facts show that it has been
undertaken after due and proper deliberations.

44. WHEN CAN PARTITION BE REOPENED
1. 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. A coparcener
may conceal the Joint Family Property at the time of partition, to gain an unjust
and undue advantage over the others; the partition can thus be reopened on the
discovery of fraud.
2. The partition should be postponed till the birth of the child if the pregnancy is
known, but if the coparceners do not agree with the delay, then the share equal to
the share of the coparceners should be reserved. But in cases where no share of
the posthumous child is reserved, then he can demand for the reopening of
partition after his birth through any representation.

45. 3. According to Section 12 of the Hindu Adoption and Maintenance Act, 1956
adopted sons have the same right to partition as that of the natural son.
Even if after his adoption, a son is born to a father, then also shares of
adopted sons and natural sons will be equal. Thus, an adopted son is
entitled to reopen the partition.
4. Persons suffering from any defect which disqualifies them from inheriting
are equally disentitled to a share on partition, but once cured can reopen
partition. Various grounds of disqualification were recognised by the
Hindu law, such as congenital and incurable blindness, insanity, deafness,
dumbness, virulent and incurable leprosy and other incurable diseases
that made sexual intercourse impossible. All these grounds except
congenital lunacy or insanity have now ceased to exist as a part of the
Mitakshara law by virtue of the Hindu Inheritance (Removal of
Disabilities) Act,1928.

46. 5. A coparcener absent at the time of partition, who has a share
in the coparcenary, has a right to call for the reopening of the
partition if the partition has taken place in his absence.
6. If minor’s interests are prejudiced by the Karta by
squandering the Joint Family Property, the minor’s guardian
or the next friend of the guardian may file the suit for partition
on behalf of the minor.
7. The reopening of partition can also be affected when some
properties were left out, either by mistake or deliberately or
when some properties which have been earlier lost or seized
were discovered.

47. REUNION OF JOINT
FAMILY

48. REUNION EXPLAINED
• The leading text on re-union is the text of Brihaspati which says, “He
who, being once separated, dwells again through affection, with
father, brother or a paternal uncle, is termed reunited with him.”
• A re-union can take place between persons who were parties to the
original partition [Bala Bux v. Rukhma Bai (1913) 130IA 130; B.C.
Naik v. Bhaba Bewa A.I.R. 1972 Orissa 72],
• According to Mitakshara, re-union cannot take place with any person
indifferently but with father, a brother or a paternal uncle. According
to Dayabhaga also, a re-union is valid only with a father, brother or
paternal uncle.

49. • According to Mithila and Mayukha Schools of Hindu Law, the words
“father”, “brother” and “paternal uncle” are used in an illustrative
sense and a reunion can be effected between others provided they
were parties to the original partition.
• The Supreme Court in Bhagwan Dayal v. Reoti Devi held that “if a
joint Hindu family separates, the family or any member of it may
agree to reunite as a joint Hindu family, but such a reuniting is for
obvious reasons, which would apply in many cases under the Law of
the Mitakshara, of very rare occurrence, and when it happens it must
be strictly proved.”
• According to the Privy Council, the parties to the re-union should have
been parties to the original partition also and that subject to this
there may be a re-union. [Ram Narain v. Mst. Pan Kuer, AIR 1935 PC

50. • No writing is necessary for a reunion. It may take place by verbal
arrangement but there must be an intention to reunite. Mere living
and carrying on business together is not conclusive evidence of
reunion. [Bhabgati v. Murlidhar, 1943 A.L.J. 328 P.C].
• To constitute a reunion there must be an intention of the parties to
reunion is estate and interest.
• There can be no reunion unless there is an agreement between the
parties to reunite in estate with the intention to remit them their
former status as members of a joint family.
• But possession of family properties at the time of reunion is not
essential. A minor cannot reunite because he is not competent to
contract.