Partition

Partition Vibhajan (partition) is defined by the Mitakshara as the allotment of individuals of definite portions of aggregates of wealth over which many persons have joint ownership. Under Mitakshara the coparceners do not have a definite share and it is only on partition that a coparcener becomes entitled to a definite share. According to Dayabhaga, vibhajan means the indication of the ownership of one out of many by the casting of a ball or pebble on a definite part of the land or cash. It arises with reference to a portion only but which is indefinite because it is not possible to deal specifically with a particular portion since there is nothing to show for certain what portion belongs to whom. According to Dayabhaga there is no ownership by birth. Every son takes a defined share, the moment the ownership of the father ceases owing to death etc. Under Hindu law partition puts to end the joint status in Hindu Joint family. On partition the joint family ceases to be joint and nuclear family or families may come into existence. However, partition under the Dayabhaga and Mitakshara School is not the same. Since, under the Dayabhaga school the interests of the coparceners specified and certain, partition under Dayabhaga school means physical division of the property or what is called partition by metes and bounds. But it is not so under Mitakshara School, there is community of interests in the joint family property. When a partition is to be made among the Mitakshara coparceners, the first step will be severance of status. Thereafter actual physical division of property will take place. Severance of status may be arrived at by agreement, by arbitration, or by unilateral declaration of an intention to partition. With regard to partition, the main issues which arise are: a) What property is divisible on partition? b) Who is entitled to a share on partition? c) What kind of restraint acts on partition? d) How is partition affected?

Apart from the above mentioned questions, one very controversial issue has been the status of women under the Mitakshara law, and their rights to a share in property at the time of partition. The enactment of Hindu Succession Act, 1956 and especially the provisions of Section 6 thereof have helped in changing the situation only to a little extent. General Rules regarding Partition On a partition between the members of the joint family, shares are allotted according to rules prescribed in ancient Hindu texts. In case of a partition between a father and his sons each son is entitled to a share equal to that of a father. Thus, if a family consists of father and four sons, each one of them will take equal share in the property 1/5 each. This is the settled view now but various readings of the scriptures are not unanimous on this point. Even though all the Sutras and Smritis prescribe the rule of equal division among the sons of wives of the same class as the father but some of these also refer to the special share or provision given to the eldest son. On the death of a coparcener leaving male issue, his right to a share on partition is represented by his male issue, provided such issue is within the limits of coparcenery. But this must be read in the light of section 6 of the Hindu Succession Act. Every branch takes per stripes as regards every other branch, but the members of each branch take per capita as regards each other. In the ancestral property sons and grandsons equally have rights by birth, but in the case of the grandsons assignment of the shares is made to them through their fathers and not in their separate individual capacity. This may be illustrated by an example: A

B E

C F

D G

H

J

K

Suppose A, B, C, D, E, F, G, H, K, formed a joint family and that A,B,C,D all die without making a partition. B leaving one son E. C leaving two sons F, G, and D dying leaving three sons, H, J, K. if E, F, G, H, K want to partition, then these six will not take 1/6 each but the partition will be through their fathers i.e.

E the only son of B will take 1/3, F and G together will take 1/3 (each will take 1/6) and H, J, K will take 1/3 together, each taking 1/9. The same will be the result if only A, B, C die, leaving D, E, F, G, H, K. Here D, the uncle of E, F, G along with his three sons H, J, K will take 1/3 only. With regard to women, only three women are entitled to a share in the partition – a) Father’s wife, b) Mother, and c) Paternal grandmother.

What property can be partitioned It is only the coparcenary property that can be subject matter of partition. Separate property cannot be the subject of partition, nor can property which by custom descends to one member of the family to the exclusion of other members. Coparcenary property is that property which belongs only to the joint family as a whole. Ancestral property which is another term for the same is property inherited by a male Hindu from his father, father’s father and so on. According to the Mitakshara law the essential characteristic of ancestral property is that sons, grandsons and great grandsons of the person acquires an interest and the rights attached to such property at the moment of their birth. If from the very nature of things, the property is not susceptible to partition, then also it cannot be partitioned. In other words, “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. If on the contrary, no partition can be made, without destroying the intrinsic value, money compensation should be given instead of the share which would fall to the plaintiff by partition”. Thus three methods of adjustment are available: 1) Some of the properties may be enjoyed by the coparceners jointly or in turns; 2) Some of the properties may be allotted to the share of a coparcener and its value adjusted with the other property allotted to the other coparceners; 3) Some of the properties may be sold and their proceeds distributed to other coparceners. Can dwelling houses, places of worship, right of way be partitioned?

In Nirupama v. Baidyanath, the court held that in case of dwelling houses, the effort shall be to effect an arrangement which will leave the house entirely in the hands of one or more coparceners, or kept for common use. Similarly with regard to family shrines, temples and idols, it was held in Pramatha v. Pradumma that they should be given to one coparcener with the liberty of the others to have access to them for the purposes of worship; holding the properties in turn, in proportion to their share in the property; in case the family makes a living out of the offerings, each coparceners would worship and take the offerings by turn. The right of way and other such indivisible property remains in the common use of all the coparceners. What are the principles regarding taking of account? The property that is available for partition has to be calculated through a detailed process of taking accounts where different factors including debts, the rights of those entitled to maintenance, etc are considered. Mitakshara law says that the sons are bound to pay off the debts of the father if these are not tainted with immorality or illegality if these have not been provided for at the time of partition itself. In case the provisions for the payment have not been made it has been held that the sons are liable to the creditors of the father to the extent of their interest in the property. In Deshpande v. Kusum it was held that where the father who was the karta of the family had borrowed money for the improvement of the land then the other coparceners in this case the sons would be liable for the same. Therefore the encumbrances on the estate which should be accounted for before the partition actually takes place are: a) The debts due or claims against the family; b) Charges on account of disqualified heirs, of female members and of others who are entitled to be maintained; c) Marriages and such other family ceremonies have to be provided for; Persons entitled to a share on partition Having given a basic overview of the rules regarding partition, let us now focus on specific questions relating to the entitlement of various persons to a share on partition of joint family property. It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. It is not necessary that there should be an agreement between all the coparceners for the

distribution of the joint status. It is immaterial in such a case whether the other coparceners give their assent to the separation or not. The jural basis of this doctrine has been expounded by the early writers of Hindu Law…………….there is no distinction between a partition during the life-time of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will) of a single (coparcener). Therefore, a suit for partition and separate possession of ancestral joint family properties by one of the coparceners is maintainable even if their father is joint with his brother and is not willing and does not consent to such a partition. The conflict of decisions referred to above has arisen from different readings of the same text of Mitakshara. Partition on behalf of minor coparcener Where a suit is brought on behalf of a minor coparcener for partition, the court does not pass a decree for partition, unless the partition is likely to be for the benefit of the minor by advancing his interests or protecting them from danger. It may however be noted that the minority of a coparcener is no bar to a partition between the coparceners. A partition by agreement, though entered into during the minority of the coparcener, is binding on the minor, unless it is unfair or prejudicial to his interests. Examples of situations where court may pass a decree for partition, include where an adult coparcener in possession of the family property is wasting the property, or sets up an exclusive title in himself, or denies the minor’s rights, or declines to provide for the minor’s maintenance. A son conceived before partition but born later entitled to a share in property En ventre sa mere Hindu law provides that a son conceived before partition but born after the partition of property takes place is entitled to a share, as if he was in existence at the time of the partition. If no share is reserved for him at the time of partition, he is entitled to have the partition re-opened and share allotted to him. Illegitimate son entitled to a right in the property An illegitimate son of a Hindu may be a son by a concubine. If the concubine is a dasi, the son is called a dasiputra. Section 16 of Hindu Marriage Act, 1955 provides that for the positions and rights in a Hindu coparcenary of a son born of a marriage, which is void or voidable is to be deemed to be a legitimate child of the parents.

Under Chapter 1, s 12, para 3 of Mitakshara, illegitimate sons of the three regenerate classes (Brahmin, Kshatraiya, Vaishya) are only entitled to maintenance and not to inheritance or to any share on partition. However, in case of a sudra, the illegitimate son is entitled to certain rights of inheritance and partition. The illegitimate son of a Sudra does not acquire by birth any interest in his father’s estate. He cannot, therefore, enforce a partition against his father in his lifetime. On the father’s death, however, he succeeds to his estate as a coparcener with the legitimate son of his father, with a right to survivorship, and he is entitled to enforce a partition against the legitimate son. However, the legal status of an illegitimate son of a Sudra was first recognised in Sadu v. Baiza, and it was held that after the death of his father such a son along with a legitimate son succeeded as a coparcener with right of survivorship to the property in his father’s hand, he, however, taking only half a share. On a partition between an illegitimate and a legitimate son, the illegitimate son takes only one-half of what he would have taken if her were legitimate, i.e. the illegitimate son gets one-fourth and the legitimate son takes three fourths. Therefore, it is well settled proposition that an illegitimate son of a Sudra is entitled to succeed to his separated father’s property, whether ancestral or separate in his hands. If the father was joint at his death with his collaterals, eg., his brothers or their sons, or his uncles or their sons, the illegitimate son is not entitled to demand a partition of the family property, but he is entitled as a member of the joint family to maintenance out of such property, provided his father left no separate estate. Disqualifications on account of disability Before the Hindu Succession Act, 1956 and the Caste Disabilities Removal Act, 1850 came into being both unchastity of a widow at the time of her husband’s death and the loss of caste or religion were valid grounds for the taking away their entitlement to any share in the property. The Caste Disabilities Removal Act, 1850 operates to remove the disability as far as the person who is undergoing conversion to another religion or has suffered a loss of caste is concerned and as far as his or her heirs are concerned the law of the religion that the individual has converted shall apply insofar as succession is concerned. The courts have also held that congenital and incurable deafness and blindness are also valid reasons for disqualification of heirs. Along with this impotence, lameness, and want of any limb which is also congenital also operate as physical disqualifications. Virulent leprosy as far as rendering a person unfit for social intercourse also acts as a bar.

This position has been changed by the Hindu Inheritance (Removal of Disabilities) Act, 1928 which removes the bars to succession for all heirs other than those who are since birth afflicted by either lunacy or idiocy. Purchaser of undivided interest and demand of partition A purchaser of the undivided interest of a coparcener, at a sale in execution of a decree can demand partition according to all schools. There is a conflict between the Bombay, Madras and Madhya Pradesh states on one hand and Bengal and Uttar Pradesh on the other with regard to the position of a purchaser of the interest of a coparcener by private contract. According to the former, the purchaser can claim partition, while according to the latter, he cannot do so. Status of Women and the law of Partition The persons who have no right to partition but who are entitled to a share if partition takes place include father’s wife, mother and grandmother. No female except those mentioned is entitled to a share on partition. Thus daughters, sisters etc. are not entitled to a share on partition. However, on a partition, provision must be made for their maintenance and marriage expenses. Now, let us discuss the rights of each of women separately. Nature of right of the wife at the time of partition The wife cannot herself demand a partition, but if the husband himself separates his sons during his lifetime or if the sons claim a partition during the father’s lifetime, the wife was entitled to a share equal to that of a son. If there be several wives each get a share equal to that of a son. She may either be mother or the step-mother of the sons. She can sue for her shares where there has been a partition and she has not been assigned any share, provided there was no waiver of her rights or acquiescence on her part. The father when separating from the sons should take for each of his wives a share equal to that of each son, but it is not meant that the husband is to carve out separate portions of the joint property and hand them over to his wives, since such a procedure would be opposed to the dictum “there is no partition between husband and wife” Position with respect to widow-mother Generally speaking, a widow mother cannot compel a partition so long as the sons remain united. If a partition does take place, she is entitled to a share equal to that of a son in the coparcenery property. Position with respect to the grandmother

A paternal grandmother or step-grandmother can not herself demand a partition but in the following situations she is entitle to a share on the partition: • When a partition takes place between her son’s sons, her own son being dead, she is entitled to a share equal to the share of a grandson. •

When partition takes place between her son and sons of a predeceased son, she is entitled to a share equal to the share of a grandson.

•

When partition takes place between her sons and their sons, according to the Allahabad and Bombay High Courts she is not entitled to a share but according to the Calcutta and Patna High courts she is entitled to a share equal to the share of a grandson.

Reopening: According to the Hindu Joint Family, once the Partition is made, it can be irrevocable or re-opened.

A text of Manu, once the partition of inheritance made: Once is a damsel given in the marriage and once does a man say, "I give", these three are done for once and irrevocable. But, in some cases the partition can be re-opened: 1. Fraud: If the Partition is found any fraudulent, it can be re-opened. For instance, worthless assets are fraudulently misrepresented as valuable assets and are distributed to a coparcener, he has right to claim the re-opening of partition. 2. Son in Womb: When a joint family undergoes partition, each member of the family is entitled to claim his/her share. Under Hindu law, coparacenary share is the term that is used. When partition is being contemplated and any woman of the family is pregnant at the time, Hindu law recommends postponing the partition till the child is born. In Hindu law, a child in the womb also has the right to a share. However, if it is not possible to reschedule the partition, a share must be kept aside and that share must be equal to the coparcener’s share. If, in case, the partition takes place without keeping a coparcener share for the unborn child, the after born son has the right to get the partition reopened.At the time of partition, if a son is in Womb, and no share is allotted for him, it can be reopened. 3. Adopted Son:

If a widow of a coparcener adopted a son after the partition was take place. The adopted son has a right to re-open the partition. (Old law when doctrine of relation back was prevailing ) 4. Disqualified Coparcener: A disqualified coparcener is deprived of his share at the time of partition due to some technical constraint. After the disqualification is removed, he can get the partition removed. 5. Absentee Coparcener: At the time of partition is taken, where a coparcener is absent and there is no share is allotted to him, he can get the partition re-opened. 6. Minor Coparcener: A minor coparcener can claim the re-opening of the partition, if he can establish that the partition. During his minority was unjust, unfair and prejudicial. So, according to these cases a partition can be re-opened in the Hindu Joint Family. The following propositions emerge: (1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is bindig on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. (3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times. If it is found that only one of these transactions is unjust and unfair it is open to the Court to

maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.

Reunion of HUFs Even after a total partition, it is possible for the coparceners to reunite undoing the earlier partition among themselves. The effect of such reunion is to bring back to life, the former status of the HUF. A reunion can only take place between persons who are parties to the original partition. If a joint Hindu family separates, the family or any member of it may agree to reunite as a joint Hindu family. The condition precedents for a valid reunion under the Hindu Law are: • There must have been a previous state of union. Reunion is possible only among persons who were on earlier date members of the HUF. • There must have been a partition in fact. • The reunion must be effected by the parties or some of them who had made the partition. • There must be a junction of estate and reunion of property because reunion is not merely an agreement to live together as tenants in common. Reunion is intended to bring about a fusion in the interest and in the estate among the divided members of an erstwhile HUF once again. Therefore, reunion creates a right on all the reuniting members in the joint family properties which is the subject matter of partition among them to the extent they were not dissipated before the union. There should, however, be a proper agreement between the parties so that the intention to revert to the original status of the HUF is expressed clearly and unambiguously. The burden of proof of reunion is on the party asserting the reunion and must be discharged along with proof by the persons reuniting. It should also be remembered that if the partition comprising immovable properties was by a registered deed then the reunion, which follows if it is to be valid in law, must also be effected by a registered deed. In a reunion, a few of the properties of the former HUF and also a few members of the former HUF may remain out of the reunited HUF.

It is suggested to go through the class notes also.