Submitted by Rohini Kamble
Partition is division or splitting of a Hindu Joint Family which brings the life of a coparcenar to an end. According to Mitakshara School; partition means two things;
i) Severance of status or interest.
ii) Actual division of property in accordance with shares so specified, known as partition by metes and bounds.
According to Dayabhaga school of Hindu Law; partition means only division of property by metes and bounds. For partition to take place at least two coparcenars are required.
II] SUBJECT MATTER OF PARTITION
Only coparcenary property can be divided on partition. A separate property cannot be subjected to partition. To determine what property is available for partition following provisions must be made for joint family debts;
i) Personal debts of father not tainted with immorality.
ii) Maintenance of dependent female members and of disqualified heirs.
iii) Marriage expenses of unmarried daughter.
III] PROPERTIES NOT CAPABLE OF DIVISION
There are certain properties that cannot be divided due to their very nature, such as books clothes, ornaments or household appliances, kitchen utensil, furniture etc. Such properties are incapable of division.
It has been stated by Vijneshwara in his Smriti that water or reservoir of it, a well cannot be divided but it is to be used in turns. For example; the common way or staircase, well etc. are not divisible. The Smritikars were of the view that the dwelling house should not be the subject of partition.
In Nirupama v. Baidyanath, with respect to the dwelling house the court held, "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. It is a general rule that 'if the property can be partitioned without destroying the intrinsic value, a money compensation should be given instead of the share which would fall to the plaintiff by the partition.' There are certain methods available for adjustments; namely;
1) Some of the properties may be enjoyed by the coparceners jointly or in turns
2) Some of the property allotted to the share of a coparcener and its value adjusted with the property allotted to other coparceners.
3) Some of the property may be sold and their proceeds distributed to other coparceners.
IV] MODES OF TAKING ACCOUNT
There are certain principles with respect to mode of taking account for partition of property;
1) No coparcener is entitled to call upon the manager to account for his past dealings and with a joint family property unless he establishes a fraud, misappropriation or improper conversion.
2) It was held in Abhay Chandra v. Pyari Mohan; no charge is to be made against any coparcener because a large share of the joint income was spent on his family in consequence of his having a larger family to support. Similarly no credit to be given to any coparcener because a smaller share of the income was spent on him and his family.
3) A coparcener who is entirely excluded from the enjoyment of family property is entitled to an account of the income derived from the family property and to have share of the income ascertained and paid to him. In other words he is entitled to what are called mesne profiit.
V] PERSONS ENTITLED TO ASK FOR PARTITION
Partition is the division of thee coparcenary property by metes and bounds. Therefore, the coparceners have the right to demand a partition and every coparcener is entitled to have his share. Following are the persons entitled to ask for partition;
A father by virtue of his right as a patria potestas, can make partition not only among himself and the sons but also among the sons inter se. The father must allot equal shares to all of his sons. It is an absolute right of the father to make partition and the consent of the sons is immaterial. The partition is binding on the sons unless it is avoided or rescinded expressly.
2) Son, grandson, great grandson:
Son has unqualified right to partition under Mitakshara School.
3) Son born after partition:
A son who at the time of partition was in his mother's womb and is born alive subsequently, is treated as if he existed during partition. If he has been left no share then he can demand re-opening of the partition. Manu opines , "the after born son can get share only in his father's share."
4) Adopted son:
A valid adoption entitles a male child to become a member of a joint family. He also has right to partition and equal share as well. According to Dayabhaga Law,"an adopted son as compared to after born natural son, he takes one third share, in Bombay and Madras one fifth share, and in Banares one fourth of the share of the latter. The laws relating to adoption has been modified by the passing of Hindu Adoptions and Maintenance Act, 1956. It has been clearly laid down by the Act that there is no difference between the rights of a natural born, legitimate son and an adopted son. He can not only demand partition but also have equal share to that of the natural son of his adoptive father.
5) Minor coparcener:
A minor coparcenar, unlike the major coparcenar cannot demand partition from the father or the karta, but this however, does not mean that the partition will not be effected at his instance. In certain cases, where a father may act in such a manner that may adversely affect the minor's interest, then a minor can file a suit for partition against the karta, through a next friend. The court acts as a parens partriae in such cases.
A non-coparcenar does not have right to demand partition, but there's an exception where the share has been alienated by an undivided coparcener, in states where he is allowed to do so, then the alienee can demand partition. An alienee does not have right to to have a joint possession of the property as he is a stranger to the family. Such partition will not have any adverse effect on the status of rest of the coparcener. Under Mitakshara schools such an alienee can file a suit of partition in a court of law.
VI] MODES OF PARTITION
1) Partition by agreement:
If all the coparceners decide to destruct their joint status, it is called as a partition by an agreement. This need not be in writing. From the date of signing the agreement, the severance of the status takes place. The shares allotted to the coparcener in partition by agreement need not be equal. However, it does not mean that the share can be unjust, unfair or can affect the interests of the minor. But, every member will have specific definite share in future.
2) Partition by arbitration:
An arbitrator is appointed by the coparceners, who divides the property by metes and bounds. The Bombay High Court in Shantilal Mewaram v. Munshilal Kevalra, AIR 1932, Bombay 498, held that, a father referred a family dispute to an arbitrator whereby, the arbitrator passed an award directing the partition effects a severance between the father and the son from its date.
In Kamal Singh v. Sekkar Chand, AIR 1952. Cal 447, The court held that the partition must be for the benefit of the minor. Otherwise it will not be binding on him.
3) Partition by will:
When the coparceners make a will which contains a clear and unequivocal intimation of their desire to sever themselves from the joint family is known as partition by will. In Potti Laxmi v. Potti Krishnamma, the Supreme Court observed,"where there is nothing in the will executed by a member of Hindu coparcenary to unmistakably show that the intention of the testator was to separate from the joint family, the will does not effect the severance of the status."
4) Marriage under Special Marriage Act, 1954:
If a coparcener gets married under the Special Marriage Act, 1954 then it automatically causes the severance of the status and he is no more a coparcener but is entitled to receive his share.
5) Partition by suit:
Partition can be effected by the institution of suit which is an unequivocal intimation of the intention to separate and subsequently the severance of the status takes place. A son can file a suit for partition as he is fully eligible. The suit is filed in the Competent Court to try the same. In case of an agricultural land the decree is sent to the Collector for execution.
VII] RE-OPENING OF PARTITION
According to Manu, "once if the partition of inheritance made, once is damsel given in a marriage, and once does a man say 'I give', these three acts of good men are done once for all and are irrevocable. " Thus partition is generally irrevocable. But, there are certain exceptions wherein the re-opening may be advisable. Following are the cases where the partition can be re-opened:
1) More property is added after partition:
The partition can be re-opened in cases where some properties are discovered subsequent to the partition. If there is concealment of the property or property left out by mistake then it is advisable that a new partition should be made. But, if the additional property can be effectively distributed among the members then earlier partition need not be re-opened.
2) Property concealed by fraud by a coparcenar:
At the time of partition if any property is concealed fraudulently with an intention to gain advantage over others or for bigger share, then the partition can be re-opened on discovery of such fraud.
3) Partition unjust or unfair to minor:
It is the duty of the court to protect the interest of the minor. If the partition effected earlier was unjust or unfair towards any minor then the court should allow such re-opening.
Submitted by Rohini Kamble