MODES OF PARTITION
A partition can be made by definite declaration of the intention by any member to separate himself from the family. If the partition is done after the declaration, it amount to be division of status, what type of mode is to be used for this. The partition can be effected by suit, by submitting the dispute as to division of the property to arbitration by a demand for a share in the properties, it also effected by the agreement for division of property.
If any member is living or has separate enjoyment does not means that they have division of the status.
PARTITION BY SUIT
When the coparceners file a suit for the partition, it amounts to an unequivocal intimation of the intention to sever. And consequently, severance of status take place from the date the suit is filed in court. The decision taking the view that the partition is effected by a decree of the court are wrong.
PARTITION BY AGREEMENT
The partition may be effected by an agreement between the parties of coparceners. In the case privy council in Approvier V. Rama, says that intention is a real test, an agreement between the coparceners parties to hold and enjoy property in defined shares as their separate owners operates as partition but it cannot clearly say that actual division of partition between parties might take place or not.
Under Hindu law, an agreement to partition need not be written. If it is written, it should clearly shows the parties intention for partition and severance of status date place at the time when the agreement to partition is signed. A written agreement is not need to be registered it merely records what happened. But, if properties are divided by the agreement, it is necessary to register. The property divided by the agreement may not be equal or may be equal, it not compulsory partition is unjust.
There is long line of cases holding the view that oral partition can be validly made. As early as in Privy council in Rewan Prasad V. Mst. Radha, said that it is undisputed that a division of joint property might be effected without an instrument in writing.
The severance of status can also be brought about by a unilateral exercise of power to partition. This, in other words, means that the consent of the other coparceners is not necessary. But this does not mean that intention need not be communicated. The communication of intention is necessary whatever the mode of partition one may use. An unambiguous and definite expression of intention by a coparcener to partition is sufficient to bring about a division in status, with all the legal consequences resulting therefore.
PARTITION BY ARBITRATION
The partition may be effected by the way of arbitration. When any member of a joint family enter into the agreement and appoint arbitrators for dividing the joint family property among themselves or coparceners. The severance of status takes place from the date entered into an agreement. The award is made when fact are immaterial. In case Chandra Kant V. Balkrishan, thse pervious suit for partition, the court passed a preliminary decree for partition on the basis of arbitration award made accordance with an agreement between the parties. A commissioner was appointed for dividing the property on the basis of the award. The arbitrator was awarded the property and parties take the possession of their separate property. The suit later on dismissed as the parties did not pay the fees of commissioner. After sometime another suit is filed in Supreme Court. The Supreme Court held that the second suit was not maintainable as severance of status and partition were already affected in the earlier suit on the basis of award.
PARTITION BY CONDUCT
The severance of the status may also take place by way of conduct. The conduct, like declaration of intention, must be unequivocal, explicit and definite. There can be number of circumstances which show the severance of status. For instance, separation in food, worship, separate living and enjoyment of the property, separate income or generate separation for separate purpose and other conducts which show that severance of the status from the joint family.
AUTOMATIC SEVERANCE OF STATUS
The conversion is a way for the automatic severance of the status, any coparcener conversion into the non-Hindu religion like Christian. Islam, parsi etc. those person automatically cease to the coparcener from when they convert their religion into any non Hindu religion and severance of status take place from the date of person conversion. Who converted their religion get some share from the join family property at the time when person get converted. Same rule is followed when, if any coparcener married with the non Hindu under the special marriage act, 1954.
REGISTRATION OF PARTITION
Under Hindu law, it is not necessary to register for the partition. It also may be oral partition between the parties. An unregistered memorandum of partition is inadmissible in evidence but it can be used for only collateral purposes, such as the intention of coparceners for the partition.
PARTIES TO PARTITION
In any suit for the partition, the essential parties for the suit are heads of the branches. No other member of the branch is essential need for parties of the suit.
PARTITION BY WILL
Before the enactment of the Hindu Succession Act, 1956, the undivided interest of a coparcener in the joint family property devolved on his death by the rule of survivorship. So, a coparcener cannot make an effective will for his coparcenary interest.
As we know there are different ways for getting the partition of the joint family property. These modes are for the coparcener to get their partition rights from joint family property. In the joint family property some property are that kind of property which is non dividable, this property are for the common usage of property.
These modes are applicable for the partition of coparcener property not on the separate property which is generated by their own income. Coparcener property is that property inherited from the ancestor.
Author: Manish Kumar,
Delhi Metropolitan Education( Affiliated to GGSIPU) 2nd year (BALLB)