Partition means to divide a joint Hindu Family into smaller, separate and independent units, with the conferment of separate status on the undivided coparceners.
There are two categories under a partition that is Division of Right and Division of Property-
De Jure Partition is a division of right, i.e. severance of status here partition has taken place but actual possession has not been given and De facto Partition means when the partition has actually taken place by metes and bounds, here ownership, as well as possession of a property, has been transferred.
There are some other properties also which are incapable to be partitioned as provided by section 2, Partition Act, 1893 as such property lose their basic value or get destroyed if partitioned. Some of those properties are Wearing apparel, carriages, riding horses, ornaments, water, pastures, animals, wells, passages, ways, courtyards, staircases, utensils, family shrines, temples and idols etc.
A property can only be partitioned after some of the deductions in it such as joints family debts like debts taken by Karta for any purpose regarding joint family or father’s personal debt taken for the maintenance of family, marriage and funeral expenses or to perform rites and ceremonies.
Partition is the division of Hindu joint family which brings the status of coparcener into an end and a separate life initiates of it. In Mitakshara joint family these both categories of partition works but In Dayabhaga joint family partition of property by meets and bounds work (De facto).
In Raghvamma v. Chenchemma (AIR 1964), the supreme court held that it is settled law that a member of the joint family can bring about separate status by a definite declaration of his intention to separate himself from the family and enjoyed their share severally.
Essentials of Partition
- Formation of an intention to separate from the family: At least one of the family member can have the intention to partitioned from their family.
- An unequivocal, unilateral and definite declaration of their intention to separate
- Communication of the declaration to all the coparceners
Modes of Partition
There can be several modes by which a partition can undergo such as
- Partition by father during his lifetime: the Karta of the family take partition then it came into existence.
- Partition by suit: from the moment the suit is filed clearly indicates the intention to severance, then partition was held when the suit was instituted.
- Partition by agreement: from the date of signing the agreement, severance of status get started. And one more type of partition includes the agreement of arbitration in which all member of the joint family come into an agreement in which they appointed arbitrator that distributes or divide the property.
- Partition by notice
- Partition by will
- Oral partition
- Partition by one coparcener through his unilateral declaration.
- By conduct, when food, worship and business are different.
- Partition on death also called Notional Partition
- Partition on conversion and or by marrying a non-Hindu: if anyone converts their religion then automatically severance of interest take place from the date of conversion but they entitled to take their share from that property, and if a person married under special marriage act 1954 so then automatically severance of interest took place from the date of marriage but in this case also they entitled to get their share.
Who all are eligible to demand Partition?
- Coparceners: Every coparcener in both Dayabhaga and Mitakshara have right to take partition. Father, son grand son and great-grandson also have the right to take partition.
- Alienee by way of gift, sale and will/ creditors by way of paying off antecedent debts.
- Minor coparceners can sue through next friend (Kakamanu Pedasubbhaya Akkamma, AIR 1968 SC 618) in both schools even a minor coparcener can take partition. Any person can sue on behalf of that minor and a minor can reopen the unfair partition and also get their share if they have right.
- Convert cannot ask for partition but he is entitled to a certain share for which he can sue. Marriage of a coparcener with a non-Hindu under SMA, 1954, cannot ask for partition but he is entitled to a certain share for which he can sue.
- A son born after partition: If a son born after partition and they have in existence at the time of partition in mother womb then they have their share in the property and if the child is not in the womb and not known then also the partition can reopen after birth.
- A person who is allotted a share under a family arrangement
- Adopted child after partition: Revansiddappa and Ors. Malika Arjun, (2011) 11 SCC 1. it was held that the word mentioned is ‘property’ and it is wide enough to include both Joint Family Property and separate property, therefore even an adopted son has the right of partition.
- Illegitimate child: Not entitled for partition or share but for maintenance only.
- After Amendment of 2005, Female has the same right of partition as that of a male.
Revocation of Partition
- Can be done only before communication
- Cannot be done after three essentials are met,
- Can be done provided, if there is a mutual agreement between all the members then it can be revoked later after the third stage
Reopening of Partition
A partition can be re-opened on the following grounds-
- When any property was not known at the time of partition and there is no possibility of distributing the same without re-opening the partition,
- When any property was concealed by fraud, coercion, misrepresentation at the time of partition,
- When the partition was unjust and unfair to any coparcener who was minor at the time of a partition or if Wife of Highest Coparcener, widowed mother and paternal grandmother have not got their share
- When a child is born after partition.
- If the father is not taking their share then, their son has the right to reopen the partition.
- If A minor children that have not alloted his share can also claim to reopen of partition.
- If an Adopted child cannot take their share then they have also right to reopening the partition.
Reunion after Partition
It is essential that parties have the intention to reunite in estate and interest again. A reunion can be made only between the parties who actually partitioned at that time. A reunion can only take place between father and sons, brothers and between paternal uncle and nephew.
It is not required to have the existence of the similar property which were separated since the reunion is for love and affection of family members with the desire of living together.
Effect of reunion: Once the agreement of reunion is made it restores the family and Coparcenary, coparceners have joint possession of a property.
Author: RAHUL SHARMA,
Ideal Institute of Management and Technology affiliated to GGSIPU/ 2nd Year/ Law Student