October 20, 2021

All about Partition under Hindu Law

Family Law

Introduction

Partition means a division of joint family property within two or more parts is known as partition. .i.e coparceners property, the individual property is not subject to the partition. It is a process by which joint family ceases to be joint family, and nuclear family come into existence. And automatically by law the joint status of the family come to an end.[1]

For example: –  ‘x’ ‘y’ ‘z’ are three brother in a joint hindu family, and their three sons ‘XS’ ‘YS’ ‘ZS’. If three brothers partition, their sons not partitioning from them it will come into existence of three joint family consisting of ‘X’ and his son ‘XS’, ‘y’ and his son ‘YS, ‘Z’ and his son ‘ZS’.

Under the dayabhaga school, partition means division of property in accordance with the specific share of the coparcener’s property. In simple words it means division of property in Metes and bounds, (The boundary lines of land so this basically means drawing up boundary lines and the physical act of dividing the property), and accordingly under mitakshara school it does not merely means division of property into specific share, In mitakshara school, the partition means two thing:

  1. Severance of status or interest of each coparcener i.e. When every single coparcener get their individual share in the property by mutual consent[2].
  2. Actual division of property in accordance with shares so specified, known as partition by meter and bounds. Means a physical and strict division of property and after that joint family will come into an end.

What Property is Divisible on Partition

There are two types of property, Self-acquired property and Ancestral property. Under Hindu law no coparcener in entitled to claim, His parental self-acquired property on partition during his parents’ life time, if father wants to gift by its will, they can give but no one can claim any self-acquired property during the life time of that person. But if it is an ancestral property the son, the grand son and the great grandson. All the coparceners of the joint hindu family have the right to claim partition at any time. So only the coparcenary property can be divided on partition, Coparcenary property is an ancestral property[3]. Also it is essential that if any property came into partition are divisible in nature, while there are many properties in certain circumstances, capable of division or some adjustment among the coparceners. Although the general law says that entire joint family property is divisible in nature, but there are some exceptions which by their nature, incapable of division this type of properties cannot be divided.  Manu ordained: ‘‘a vehicle, a dress, cooked food, water and female slaves etc. because this type on things cannot be in divisible nature only one person can use that so no one claim such things on partition which are not divisible in nature. Staircases wells etc.—staircases, wells, tanks[4], pastures, roads are also the exceptions. Which are by their nature incapable of division in these types of things an arrangement has been derived. Court will pass an order in which this type of things is remain in common use for all the coparceners. Hence it cannot be partitioned. [5]

Person Entitled to Claim Partition

After the amendment act of 2005 a daughter since would be a coparcener have a right to ask for a partition. According to mitakshara and dayabhaga school, all the coparceners have a right to claim for a partition in Hindu joint family. Coparceners are defined as an all the male member of the hindu joint family and daughter of the hindu joint family also a coparcener after 2005. Persons who have right to partition and entitled in the shares of joint family property are, father, son, grandson and great-grandson, son born after partition, son conceived at the time of partition but born after partition, son begotten and born after partition, adopted son, minor coparcener, alienee, absent-coparcener. Also, when a coparcener interest is dissolving by succession by the application under section 6, widow, daughter, mother, predeceased son’s daughter are the females who are entitled to claim for a partition under section 6 of hindu succession act, 1956.

Brief on some coparceners, for whom there are some exception take place.

Son begotten and born after partition: – In this case mitakshara rule applied, there are two circumstances from which the decision has been taken.

When at the time of partition father has taken his share on joint family property: –

In this case when father has al[6]ready taken the share on joint family property, after born son ceases to claim/ reopening of partition this after born son will become a coparcener of his father self-acquired property as well as his ancestor property automatically by the death of the father.

When at the time of partition father has not taken his share on joint family property: –

In this case after born son has a right to claim for a partition of his ancestor property,by re-opening of partition.

Person Who Are Entitled to A Share on Partition

People, as mentioned in the last head, have the right to entitle a share on partition. There are few others in the joint family who don’t have any right to partition but can be entitled to share if partition takes place. This list of few others includes three females: father’s wife, mother and grandmother.

Following observations are made:

1. As per Dravida school, no women are entitled to a share of partition.

2. In the case of widowed mother, a share of partition is given to her. However, if she has received some STRIDHAN (jewels, money or something of value) from her father-in-law, the value of her stridhan would be deducted from her share of partition.[7]

3. Before 1956, female’s share partition was her limited estate but now as per section 14, Hindu succession Act 1956, has made it her absolute estate.

4. None provisions can adversely affect women’s right to take a share on partition.[8]

Father’s wife: If a partition happens between a woman, her husband and his son then the father’s wife has right to be entitled to a share that’s equal to the share of the son. Incase of more than one wife, each wife would receive an equal share to that of the son. If no share has been allotted to the wife, she can get the case reopened. However, under Dayabhaga school, she has no such right.

Mother- in case of partition among sons, a widowed mother can take share as much as that of the son.

According to Mitakshara school, after the death of the father, the mother or even the step mother (even without a child) is entitled to a share. However, according to Dayabhaga school, a stepmother without a child isn’t entitled to a share on partition.

In Mulla’s Hindu Law, the law states: “On a partition between sons by different mothers when more than one mother is alive, the rule is first divide the property in as many shares as there are sons, and then allot to each surviving mother a share equal to each of her sons in the aggregate portion alloted to them. ” [(Raghavacharar, Hindu Law, (6th Ed.), 418] . This statement is confined to Dayabhaga school only.

Grandmother- As mentioned by Mitakshara school, both the paternal grandmother and step-grandmother have right to be entitled to a share on partition. Some situations are listed below for this:

A. After her son’s death when partition takes place among her grandsons, a grandmother can be entitled to a share equal to the share of a grandson. [9]

B. Incase of partition between one son and sons of predeceased son, she can be entitled to to equal share of that of her grandson.

C. When the partition is happening between her son and his sons then there are 2 circumstances:

According to Allahabad and Bombay HCs, she can’t get any share.

However, according to Calcutta and Patna HCs she can get equal share of that of her grandson.

Partition How Effected

Partition can be effected, orally or by agreement it is not necessary that every partition has been mandatory to be done in written agreement, but it is suggested to make a agreement while partition. It is beneficial for everyone no dispute will arise in future if partition in done in written form.

Communication of intention to serve- The intention to serve partion has been communicated to the other coparceners, it is necessary that the intention to partition opf the joint family has been communicated to the other coparceners. Without which no partition has been valid it is a essential element.[10]

There are many ways by which partition has been effected:-

  1. Partition by suit:-By instituting a suit in court of law, the intention for partition has been communicated by filing a case it is not essential to make every member of the joint hindu family as a essential parties in the suit.
  2. Partition by will:- Anyone can make a will for his or her descendents and divide the property among them, it is called as partition by will
  3. Partition by arbitration:- Partition by arbitration means an arbitrator has been appointed by the court, that arbitrator is a senior/ retired advocate who have a very good experience in law, that arbitrator will meet both the parties in some place together and help in finding some solution and by mutual consent of all the parties partition has been take place and joint family property has been divided among themselves.
  4. Oral partition;– By oral communicate the intention of the partition and by orally decided the partition between all the coparceners.
  5. Partition by agreement:-By a written agreement between every coparceners. [11]
  6. Unilateral declaration:- Consent of the other coparcener is not necessary, but that does not been the intention has not been communicated to the other coparceners, any one can claim his own partition but by communicating his intention to other coparceners.
  7. Partition by conduct:-When the member of the family divide the joint family property in metes and bound, and each coparcener is in separate possession and enjoyment of the share allotted to them, it is called as partition by conduct.
  8. By notice:- A partition merely require a intention to partition it may be effected  even by a notice, whether followed by suit or n.

Case laws on partition how effected

K.radhakrishna v. Satyanarayan[12], where all the defendants in the partition suit were served with the summons and issues were settled one of the defendants  died whereupon the plaintiff sought to withdraw the suit, the madras high court said that a division of status had already been brought about by the plaintiff and therefore it was not open to him to revoke the intention this decision has been approved by the supreme court inputtrangamma v. Ranganna in our submission in such a suitable parties are free to recruit.

Re-Opening of Partition

A partition case can be reopened incase of fraud, mistake etc. This matter can be looked upon from two different angles:

1. Readjustment of assets

2. Reopening of partition 

1. Readjustment of Assets: Sometimes, one might face a situation where there is a discrepancy during the partition and it may cause a loss to the inheritor. Also, if there is slight inequities in partition which can be adjusted with small changes.  

Thus, readjustment can be made in such cases and partition need not to be opened.

2. Reopening of partition: There are situations when readjustment isn’t possible so the partition needs to be reopened. The situations when partition can be reopened are listed below:[13]

A. Fraud: An inheritor has the right to reopen a partition if he feels that there is some malpractice that has been used. In this case, full idea about the fraud is required to appeal in court. 

B. Son in womb: If a son in the womb at time of partition, and no share has been entitled to him for any reason then he has the right to reopen the partition. 

C. Son conceived and born after partition: If a son is born after partition, and he want to get a share, he can reopen the partition. 

D. Absentee inheritor: If the partition has taken place in absence of a inheritor and he wants to get an entitlement in the property, he can reopen the partition.

E. Adopted son: If a son is legally adopted even after the partition, he can get the partition reopened.

Case law on reopening of partition

Venkata subramania v. Easwara , [14] the madras high court held that, when in a partition one member gets an excess share, out of the income of the excess share, he acquire fresh property he does not hold the fresh property for the benefit of other sharers when the partition is subsequently re-opened on the ground of unequal partition. however he will be liable to account for the co-ownership funds used by him a family arrangement the enforcement of which become impracticable can be re-opened


[1] www.google.com

[2] Nayak chand and ors. V.chander kishor, 1982 del 520

[3] Dr.paras diwan modern hindu law

[4] Partition of property of hindu law https://youtu.be/_Ef0x0O0TrU

[5] Mitakshara 1 iv, 21

[6] Kalidas v. Krishan(1869) 2 B.L.R. 103 (F.B.),

[7] Dr. Paras diwan modern hindu law

[8] https://www.shareyouressays.com/knowledge/persons-who-are-entitled-to-demand-the-partition-of-a-hindu-joint-family-property/117712#:~:text=1.,the%20consent%20of%20the%20others.

[9] Unique hindu law bare act.

[10] www.google.com

[11] https://www.shareyouressays.com/knowledge/11-ways-by-which-a-partition-of-property-may-be-effected-under-hindu-law/117191

[12] 1949 mad, 173

[13] Dr. Paras diwan modern hindu law

[14] (1966) 1 maD 468

Author Details: Sparsh Bagga (Amity Law School, Noida)

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