Partition is one of the most important concepts in Hindu family law. It refers to the process by which the Hindu Undivided Family (HUF) comes to an end and the joint family property is divided among the coparceners, each taking his or her separate share. Partition transforms joint family property into separate, individual property of each coparcener. After partition, each person becomes the absolute owner of his or her share and is free to deal with it as he or she pleases.
The law relating to partition of Hindu joint family is primarily governed by:
- The Hindu Succession Act, 1956 (particularly after the 2005 Amendment)
- The Partition Act, 1893
- Customary Hindu law as developed through judicial decisions
- The Code of Civil Procedure, 1908 (for suits for partition)
The concept of partition is rooted in the ancient Hindu legal texts including Manu Smriti, Yajnavalkya Smriti, and the commentaries of Mitakshara and Dayabhaga schools of Hindu law.
Meaning of Partition
Partition in Hindu law has two meanings:
1. Partition in the Wider Sense — The division of status, i.e., the disruption of the joint family. Once partition takes place, the HUF ceases to exist as a joint family unit.
2. Partition in the Narrower Sense — The actual physical division of joint family property by metes and bounds (i.e., by fixing specific boundaries and allotting specific portions to each coparcener).
The Supreme Court in Raghavamma v. Chenchamma (1964) held that partition in the true sense means severance of joint status and the actual physical division of property is a consequence of such severance.
Who Can Demand Partition?
Coparceners
Under the Mitakshara school of Hindu law, any coparcener can demand partition of the joint family property. A coparcener is a person who has a right by birth in the joint family property. Traditionally, only male members up to three generations (son, grandson, and great-grandson) were coparceners.
After the Hindu Succession (Amendment) Act, 2005, daughters are also coparceners by birth and have an equal right to demand partition.
Minor Coparcener
A minor coparcener can also demand partition through his guardian or next friend. The court can order partition on behalf of a minor if it is in the minor's best interest.
Females
After the 2005 Amendment, daughters have a statutory right to demand partition as coparceners. Additionally, widows and other female members are entitled to receive their share upon partition even though they are not coparceners.
How Partition Can Be Made — Modes of Partition
1. Partition by Agreement
The most common and simplest method. All coparceners agree to divide the joint family property among themselves. The agreement can be oral or in writing. If the agreement is in writing, it should be registered if it relates to immovable property.
2. Partition by Notice
A coparcener can bring about a severance of joint status by giving a clear and unequivocal notice to the other coparceners of his intention to separate. Once such notice is given and received, the joint status is severed even before the actual physical division of property takes place.
The Supreme Court in Girja Bai v. Sadashiv Dhundiraj (1916) held that a unilateral declaration of intention to separate, when communicated to the other coparceners, is sufficient to sever the joint status.
3. Partition by Arbitration
The coparceners can refer the question of partition and the mode of division to an arbitrator. The award of the arbitrator is binding on all coparceners.
4. Partition by Conversion
When a Hindu coparcener converts to another religion, he is deemed to have severed his connection with the joint family, which amounts to a partition in respect of his share. However, after the Hindu Succession (Amendment) Act, 2005, conversion does not result in automatic disqualification from inheriting.
5. Partition by Will
A coparcener cannot partition joint family property by Will because joint family property passes by survivorship and not by succession. However, after the 2005 Amendment, a coparcener can bequeath his share in the joint family property by Will.
6. Partition by Suit — Code of Civil Procedure, 1908
A coparcener can file a suit for partition in a civil court. The court then passes a preliminary decree determining the shares of each coparcener and subsequently a final decree effecting the actual division of property. This is the most formal method of partition.
Subject Matter of Partition — What Property is Divided?
Not all property belonging to members of a joint family is subject to partition. Only joint family property (coparcenary property) is subject to partition. The following are the main categories:
1. Ancestral Property — Property inherited from father, grandfather, or great-grandfather. This is the primary subject matter of partition.
2. Property Thrown into Common Stock — Self-acquired property that a coparcener has voluntarily thrown into the common family stock with the intention of making it joint family property.
3. Property Purchased from Joint Family Funds — Property purchased using joint family income or funds.
The following are NOT subject to partition:
- Self-acquired property of individual members
- Stridhan of female members
- Separate property of any member
Shares on Partition
Under Mitakshara Law
Each coparcener takes an equal share upon partition. The share of each coparcener is determined at the time of partition and is not affected by subsequent births or deaths.
After Hindu Succession (Amendment) Act, 2005
After the 2005 Amendment, daughters take an equal share with sons upon partition. The share of the daughter is the same as the share of the son.
Example: If a joint family consists of a father, two sons, and one daughter, upon partition each gets one-fourth (1/4) of the property — the father gets 1/4, son 1 gets 1/4, son 2 gets 1/4, and daughter gets 1/4.
Rights of Various Members Upon Partition
1. Rights of Sons
Each son takes an equal share with the father. After the 2005 Amendment, daughters also take equal shares.
2. Rights of Daughters — Section 6 (After 2005 Amendment)
The landmark change brought about by the 2005 Amendment is that daughters are now coparceners by birth and take equal shares with sons upon partition. The Supreme Court in Vineeta Sharma v. Rakesh Sharma (2020) held that this right is available to all daughters regardless of when their father died.
3. Rights of Widows
A widow is entitled to receive a share equal to the share of a son upon partition. If the husband has predeceased the partition, the widow represents his interest and gets his share.
4. Rights of Minor Coparceners
A minor coparcener's share is protected by the court. Any partition that is prejudicial to the interests of a minor coparcener can be set aside by the court.
5. Rights of Unborn Child
If a woman is pregnant at the time of partition, the interest of the unborn child must be kept in reserve. If the child is subsequently born alive, it takes the reserved share.
Dwelling House — Special Provision
Under the old Section 23 of the Hindu Succession Act, a female heir could not demand partition of the family dwelling house as long as any male heir chose to reside in it. However, this provision was deleted by the 2005 Amendment, giving female heirs equal right to demand partition of the dwelling house.
Reopening of Partition
A partition once made is generally final and binding. However, it can be reopened in the following exceptional circumstances:
1. Fraud — If the partition was brought about by fraud practiced by one coparcener on others.
2. Misrepresentation — If false statements were made about the nature or extent of joint family property.
3. Undue Influence — If one coparcener exerted undue influence over another to obtain an unfair partition.
4. Exclusion of a Coparcener — If a coparcener was wrongfully excluded from the partition, the partition can be reopened to include him.
5. Minor's Interest — If the partition was not in the best interest of a minor coparcener, it can be reopened by the court.
Reunion After Partition
Under Hindu law, coparceners who have separated can reunite and re-establish the joint family. The following conditions must be satisfied for a valid reunion:
- There must be an agreement to reunite
- The agreement must be between the same persons who partitioned (or their male descendants in the male line)
- There must be an intention to pool the property and resume joint living
- In some schools, reunion must be followed by actual resumption of joint living
The Supreme Court in Bhagwati Prasad v. Ram Ratan (1954) held that reunion is possible only between the parties to the original partition and not with strangers.
Partition Under the Partition Act, 1893
The Partition Act, 1893 provides an important remedy in cases where coparceners cannot agree on the mode of physical division of property. Under this Act, when a suit for partition is filed, the court can:
- Order physical division of the property by metes and bounds
- If physical division is not possible or convenient, order the property to be sold and the proceeds divided among the coparceners
- Appoint a Commissioner to inspect and divide the property
Important Case Laws
1. Raghavamma v. Chenchamma (1964)
The Supreme Court held that partition means severance of joint status and that once a coparcener expresses an unequivocal intention to separate, the joint status is severed even without actual physical division.
2. Vineeta Sharma v. Rakesh Sharma (2020)
The Supreme Court held that daughters have equal coparcenary rights and equal rights to partition from birth, and this right is not dependent on the father being alive at the time of the 2005 Amendment.
3. Partial Partition — Commissioner of Income Tax v. A.W. Figgies (1953)
The Supreme Court recognized the concept of partial partition — where partition takes place with respect to some property or some members of the family while the rest continues to be joint.
4. Kakumanu Pedasubhayya v. Kakumanu Akkamma (1958)
The Supreme Court held that a Hindu woman cannot be deprived of her right to maintenance upon partition and that partition must make adequate provision for the maintenance of female members.
5. S. Narayanaswami v. G. Pannerselvam (1987)
The Supreme Court held that a partition suit is a suit of a special nature and the court must carefully protect the interests of all coparceners, particularly minors and female members.
Conclusion
Partition of a Hindu joint family is a complex but extremely important area of Hindu personal law. The provisions relating to partition — who can demand it, how it is effected, what property is subject to it, and how shares are determined — have evolved significantly over time, particularly with the landmark Hindu Succession (Amendment) Act, 2005 which gave daughters equal rights in partition. The law of partition seeks to balance the traditional values of the joint family system with the modern constitutional values of equality and individual rights. The courts have played a crucial role in interpreting and developing the law of partition to ensure justice for all members of the Hindu joint family, particularly women and minors.
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