Before Hindu law was codified with Hindu Succession Act of 1956. There are 2 types of Hindu laws :
- Dayabhaga School : under this school, partition means only division of property by meters and bound.
- Mitakshra school: Under this school partition means severance of status and interest and actual division of property with the shares of meters and bound.
Partition is an incident of Hindu joint family where joint family status among the coparceners comes to an end.
There can be no partition unless there are at least two coparceners. It implies that unless and until a coparcenary within a family exist, a partition cannot be effected. Partition really means that joint ownership is transformed into separate titles of the individuals coparceners with several items of property allotted to them.
SUBJECT MATTERS OF PARTITION:
Joint family property subject to partition. Separate property of a member or members of the family can not be the subject of partition amongst all the coparceners in the family.
Principle of Partition : if property can be partitioned without destroying the value of all property or shares partition ought to be made . No partition can be made without destroying the value then the money compensation should be given instead of share which would fall. M L. Subbarayya Setty V/S Nagappa setty(AIR 2002 SC 2066) it was observed that if joint family property consist of moveable and immovable properties of both party must be given a share in all properties. No hard and fast rule can be laid. It depends upon the nature of property and number to whom it is required to be divided.
VARIOUS MODE OF PARTITION :
- By father during his lifetime
- By agreement
- By conduct
- By suites
- By notice
- By meditation or arbitration
- By conversion
- By marriage under special marriage act
- By adoption into another family
- By renunciation
- By will
RAGHAVAMMA VS CHENCHAMMA (1964)
In this case it was not established that either the minor coparcener or his guardian Chenchamma were aware of the content of the will before the testator died. The Plantiff has failed to discharge the burden of proof of partition after the death of minor coparcener upon his guardian Chenchamma appeal dismissed.
MINOR’S SUIT FOR PARTITION
It is quite settled that valid partition is made during minority of one or more party. Where there is disruption of joint family there will be no question with the right of Karta to act on the behalf of the minor. When minor is given an unjust and unfair treatment of partition he can be reopen on his demand. Ratnam vs Kuppuswami (1976) supreme court held that it is the duty of the court in such a case to protect the interest of a minor that a partition was just and fair is on the party supporting partition.
ALLOTMENT OF SHARE TO FEMALE MEMBER
If a partition takes place and she, though entitled, is not given a share, only is she empowered to reopen the partition and claim her share.
1.Father’s wife: A wife could never demand a partition during the life of her husband, from the time of marriage, she and he are united in religious ceremonies. But if Partition takes place between her husband and his sons, she is entitled to share equal to that of a son.
2.Widowed Mother: On the death of the father, when a partition takes place among the brothers, their widowed mother takes a share equal to the share of the brothers.
3.Paternal Widowed grandmother: She has no right to demand partition but on a Partition between the grandsons, entitled to a share equal to that of a grandson. So also she would be entitled on a partition between her son and the son of a predeceased son.
Author: kanika panwar,
IDEAL institute of management and technology & school of law, 2nd year/BALLB