Partition of Property under Hindu Law

 

Copyright by Legal Ladder

Partition

The division of joint family property is known as partition.
Example of joint property ➔ Coparcenary property
The partition has no impact on the individual property.

Partition is the procedure by which a coparcener breaks the ties with his joint family and ceases to be a coparcener.

Partition according to Mitakshara and Dayabhaga Schools:

Females, who have the right to partition and are entitled to get a share in partition!

Under both Mitakshara and Dayabhaga schools, every coparcener(male or female) has a right to partition, and every coparcener is entitled to a share on the partition.

After the commencement of Amendment Act 2005, the daughter is entitled to get a share in the partition.

1. No female except a daughter has a right to partition but there are certain females who are entitled to get a share.

Those females are:

Father’s wife, mother, and grandmother

2. Under the Hindu Women’s Right to Property Act, 1937, a Mitakshara coparcener’s widow can take the same interest which her husband had at the time of his death. She is entitled to have the right to partition.

3. Under the Hindu Succession Act,1956, when a coparcener’s interest devolves by succession, by virtue of the application of Section-6, widow, daughter, mother, predeceased son’s daughters, and widow, predeceased son of a predeceased son’s widow and daughter, pre-deceased daughter’s daughter are the females who are entitled to a share.

Exceptions for every coparcener having a right to partition:

1. An unqualified coparcener has no right to partition, and

2. In Bombay school(Mitakshara), sons cannot ask for partition against their father if the letter is joint with his father for collateral.

Rights of a Father

However, the father should not be partial during partitioning; if this occurs, the partition can be reopened.

Liabilities to be taken care of before partition

There are certain liabilities in a joint family that must be fulfilled before partition. 

These liabilities are:

1. Pending debts

2. Marriage expenses of daughters

3. Performance of certain ceremonies and rites

4. Maintenance

Pending debts

Debts of father or the Karta took on behalf, or for the purpose of the joint family.

In other words, All the loans taken for or on the behalf of the joint family have to be repaid before the partition.

Marriage expenses of daughters

If there is an unmarried daughter in the house, then the expenses of her marriage will have to be separated first, before the partition.

Performance of certain ceremonies and rites

There are some ceremonies and rituals in the family whose expenses have to be separated before the partition.

Maintenance

There are some members of the Hindu joint family, who are not coparceners but entitled to be maintained by the joint family property.

Some examples are:

1. Disqualified coparceners (insane etc.) and their immediate dependents.

2. Mother, stepmother, grandmother, and other females are entitled to be maintained under Joint Family Property.

3. Unmarried sisters.

4. Widowed daughter of a deceased coparcener.

Modes Of Partition

Partition is the division of status, and severance of joint status can be accomplished in a variety of ways, including:

1. Partition by father 

2. Partition by will

3. Partition by notice

4. Partition by arbitration

5. Partition by agreement

6. Partition by suit

7. Conversion to another religion

8. Marriage under Special Marriage Act

By Father (Head)

If the coparcenary consists just of father and sons, the father can make partition between himself and the sons with or without the expression of the intention of someone, or the father can also separate his sons from one another, with or without the consent of the sons.

By Will

Any Mitakshara coparcener can now make testamentary disposal of his interest in the joint family property under Section-30 of the Hindu Succession Act, 1956.

A solitary living coparcener can write a will for the entire family's property, but if any coparcener arrives before the death of the person who created the will then the will shall not affect the newcomer's interests.

By Notice

Partition necessitates the purpose of separation, which can be accomplished with a notice, whether or not it is followed by a suit.

By Arbitration

The partition begins on the day the agreement is made by members of a combined Hindu family who designate an arbitrator to split the property.

By Agreement

The partition can be done by an agreement between the coparceners. 

If a Hindu abandons his faith in the Hindu religion and converts to another religion then he is expelled from the joint family and he loses his coparcenary membership. However, he is entitled to receive a share from the property, but his conversion has no effect on the unity of others. 

By Legal Suits

When a coparcener files a claim for partition, it indicates that he or she intends to separate, and severance of status begins on the day the complaint is filed. 

A Decree is required to settle the share allocation.

By conversion to another religion

If a Hindu abandons his faith in the Hindu religion and converts to another religion then he is expelled from the joint family and he loses his coparcenary membership. However, he is entitled to receive a share from the property, but his conversion has no effect on the unity of others.

In case of Special Marriage done by a coparcener member

When a Hindu marries under the Special Marriage Act,1955,  the relationship between him and his other family members is severed from the day of marriage but he is entitled to receive his/her share from the property. 

Reopening of Partition

The usual rule is that once a partition is formed, it cannot be changed, and the properties can only divided once. 

The following are a few exceptions to this general rule:

1. Mistake

2. Use of malpractices

3. Disqualified coparcener

4. Son in womb

5. Adopted son

6. Absent coparcener

7. Minor coparcener

Mistake 

If a genuine error was made at the time of partition, and this error resulted in the loss of one coparcener, the partition might be reopened to compensate for the loss. 

Use of Malpractices

If Consent for the partition was taken by fraud, coercion, undue influence, or by other wrong ways then in these cases partition can be reopened. 

A partition effected by the consent of the family members cannot be reopened.

Disqualified Coparcener

A disqualified coparcener can file a suit to reopen the partition.

Example:

A person not having the mental ability or having some disability were not entitled as a coparcener during partition but in case if in future he gets his ability back or he recovers from the disability he was suffering from then he can file to reopen the partition to get his shares in the property.

Son in womb

A son who was in the mother's womb during the division but born after the partition, he is entitled to get his share; however, if no share was reserved for him at the partition, he is entitled to have the partition reopened and he can claim his share. 

Adopted Son

If a widow of a coparcener adopts a son after the partition, the adopted son has the right to reopen it. If such adoption is done under the Hindu Adoption and Maintenance Act, 1956, it will be related back to the date of death of the deceased husband, and such adopted son can reopen the partition. 

Absence of coparcener 

If a coparcener is absent for any justifiable cause during the partition and no share is assigned to him during the partition, that person might reopen the partition to get his share.

Example:

If the coparcener was out of the country or state for working or business purposes or for other valid reasons. 

Minor Coparcener

If a coparcener is not allotted his share at the time of partition due to his minority then he can claim for reopening the partition after attaining the age of majority.

Reunion

1. If members of the family want to get together and join their respective shares of states back again, then they can do it by reunion.

2. Reunion is the only way by which the original joint status can be re-established.

3. Reunion can be only between those members who were parties to the original partition.

4. According to Mitakshara Law- Reunion can only take place between father, son, between brothers and paternal uncle.

In reality, reunion is practiced very rarely.

Effects Of Reunion

Reunion restores the separated family members to their prior position as Hindu joint family members, and it also returns the separated family members' possessions to the pool of joint Hindu family members. 

Reunification restores the family's former status. They reclaim their position as undivided coparceners.

Partial Partition

Partial as to property

When a joint family has many properties and one of them is to be divided, this type of partition is known as partial as to property. 

Partial as to a person

When only one member of the family wishes to be separated from the others, this is referred to as partial division as regards individuals.

Property under Hindu Succession Act, 1956

In the case of Hindus, the Hindu Succession Act of 1956, determines property division. According to this Act, anybody who changes to a different faith can still claim their portion of the family property. However, unless the descendants of the converted individual were Hindus at the time the succession was opened, they had no claim to the ancestral property.

The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.

Reach him at Instagram @shivaanshvermaa