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HINDU LAW OF PARTITION

Prof. (Dr.) Vijender Kumar Professor of Law & Commonwealth Fellow NALSAR University of Law, Hyd. vijenderkumar@yahoo.com

Law of Partition:
In this lecture we will discuss the Hindu law of Partition under the following heads: Definition of Partition; Subject matter of Partition; Persons entitled to claim Partition; Persons who cannot claim Partition but are entitled to claim share on Partition; Severance of Status; How Partition is effected; Re-opening of Partition; and Re-union of Partition.

Law of Partition:

Definition of Partition: It means a severance of joint family or separation of members thereof, which results in defining the shares of either all the members or the separating members. Partition means two things: (i) severance of status or interest:
(the unequivocal intention to separate has to be communicated to the other coparceners in order to effect a severance of status); and

(ii) actual division of property in accordance with the shares so specified, known as partition by metes and bound.

Subject matter of Partition:

Coparcenary Property

Subject matter:

Self-acquired Property

Where a partition of the paternal property is instituted by the sons, it is called by the learned, Partition of Property, a title of law. (Narada, XIII, 4.)

Law of Partition:

Properties which are not capable of division by their very nature: a) Dwelling House; b) Family shrines, temples and idols; c) Stair-cases, right of way, wells etc.

Law of Partition:
In respect of these properties three methods of adjustment are available:
(i) some of these properties may be enjoyed by coparceners jointly, or by turns; (ii) some of these properties may be allotted to the share of coparcener and its value adjusted with the other property allotted to other coparceners; and (iii) some of these properties may be sold and sale proceeds distributed among the coparceners.

Law of Partition:

Deductions and Provisions to be made before Partition: a) Debts; b) Maintenance; c) Marriage expenses of daughters; and d) Performance of certain ceremonies and rites.

Law of Partition:

Persons who have a right to Partition and entitled to a share: -Father -Son, grandson and great-grandson -son born after partition -Son conceived at the time of partition but born after partition -Adopted son -Minor coparcener -Alienee -Absent- Coparcener

Law of Partition:

Under the Hindu Succession Act, 1956, when a coparceners interest devolves by succession by virtue of the application of Section 6: a) Daughter b) Widow c) Mother d) Daughter of a predeceased sons e) Widow of a predeceased sons

Law of Partition:
f) Daughter of a predeceased son of a predeceased sons g) Widow of a predeceased son of a predeceased sons h) Daughter of a predeceased daughter

Above mentioned females are entitled to a share, and they can get their share demarcated by partition.

Law of Partition:

Persons who are entitled to a share if Partition takes place: a) Fathers wife b) Mother c) Grand mother d) Coparceners widow e) Daughter- custom- (Pachi Krishnamma v. Kumaram, AIR 1982 Ker. 137)

Some observations about Hindu females, when they get share on partition:

Fathers wife or widowed mother is given a share on partition; In the Dravida school no female is entitled on partition. (Adusumilli v. Yerneni, (1974) 1 An.W.R. 440). Kerala follows the Benaras school, and not the Dravida school, and takes the view that these females are entitled to a share on partition. (Seraswathi v. Anantha, AIR 1966 Ker. 66). Prior to 1956, any share taken by a female on partition was her limited estate or womans estate. After 1956, the Section 14 of the Hindu Succession Act, 1956 has converted it into her absolute estate. No provision of the Hindu Succession Act, 1956 affects, adversely, her right to take a share on partition.

Some observations about Hindu females, when they get share on partition:

Mother and wife are entitled to maintenance under the Hindu Adoptions and Maintenance Act, 1956. This does not mean that they are not entitled to a share on partition. As soon as a partition is made, the share to which a female is entitled becomes vested in her, even if no share is allotted to her. Such a share becomes her absolute estate by virtue of Section 14, the Hindu Succession Act, 1956 and after her death devolves on her own heirs.

Females who are entitled to a share:


Fathers wife: If a partition takes place between her husband and his son, the fathers wife is entitled to a share equal to the share of a son. She can hold it and enjoy it separately from her husband. If there are more than one wife, each wife is entitled to a share equal to the share of a son. It is immaterial that a wife has no son of her own. (Dhanabati v. Pratapmull, (1934) 61 Cal. 1056). If no share is allotted to her she can get the partition re-opened. (Radha v. Pandhari, AIR 1941
Nag. 135.

Females who are entitled to a share:


Mother: A widowed mother has a right to take a share equal to the share of a son if a partition takes place among the sons. This right accrues to her only when partition by metes and bounds is made. Chowdhry Ganesh v. Mst. Jewash, (1904) 31 IA 10, the Privy Council considered that under the Mitakshara School when partition takes place after the death of the father among the sons, the mother, including a step-mother even if she is childless, is entitled to a share. Mother and step-mother each take a share equal to the share of a son.

Females who are entitled to a share:


Grandmother: In the Mitakshara School, the paternal grandmother and step-grandmother are entitled to a share on partition in the following situations: When partition takes place between her grandsons (sons sons), her son being dead, she is entitled to a share equal to the share of a grandson. (Kanhaya Lal v. Gaura, AIR 1925 All. 19). 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. (Babuna v. Jagat, AIR 1928 All. 330).

Females who are entitled to a share:


Coparceners widow: It, now seems to be settled law that when two or more widows succeed to the property of their husband (each widow having a right of survivorship), either widow has the right to partition (with or without the consent of the other or others), and put an end to joint status. Even when a fathers widow succeeds along with her sons, she has the right to partition. (Munnalal v. Rajkumar, AIR 1962 SC 1493). If a partition takes place among the brothers, after the death of the brother his widow is entitled to a share. (Duddi v. Duddin, AIR 1983 SC 583).

Females who are entitled to a share:


Daughter: In Pachi Krishnamma v. Kumaram, (AIR 1982 Ker. 137), held that daughter claimed a share equal to the son in a partition. But she failed to prove this custom. It seems that if such a custom is established, she can claim the share, since under the uncodified Hindu law custom still override the rules of the Hindu law.

Severance of statutes:

Severance of joint status or interest:


Expression of intention: It should be in clear and unequivocal expression; by words; by conduct; Communication of intention to sever: It should be communicated to the other effected members of the coparcenary in any form:

Severance of statutes:

The Supreme Court in Raghavamma v. Chenachamma, (AIR 1964 SC 136) laid down the following propositions: (a) The communication of intention to sever must be communicated to all interested parties; (b) Although the communication of intention is to be made to all interested parties, which might be received by them on different dates, their receipt will relate back to the date of notice, i.e., severance will be effective from the date on which the communication was put into transmission; but this is a subject to the next proposition; and

Severance of statutes:

(c) The vested rights that might accrue in the interval, between the date of transmission and receipt, are preserved. This was explained thus: # But between two dates, the person expressing his intention may lose his interest in the family property; # he may withdraw his intention to divide; # he may die before his intention to divide is conveyed to the other members; # a manager of a joint family may sell away the entire family property for debts binding on the family; There may be similar other instance.

Severance of statutes:

Consequences arose out of the propositions: i) mode of service and its efficacy; ii) whether service of notice on a Karta/ manager would be enough; iii) whether service of notice on major members or a substantial body of them would suffice or should it be made on all; and iv) how notice is to be served on minor members.

Severance of statutes:

In Puttrangumma v. M.S. Rangamma, (AIR 1968 SC 1018), the Supreme Court answer the first proposition that the process of communication may vary with the circumstances of each particular case. The proof of formal dispatch or receipt of the communication by other members of the family is not essential, nor its absence fatal to the severance of the status. What is necessary is that the declaration to be effective should reach the person or persons affected by some process appropriate to the given situation and circumstances of the particular case.

Severance of statutes:

In Raghavamma v. Chenachamma, (AIR 1964 SC 136) Justice Subba Rao, indicated that communication to the Karta alone will not be sufficient. It is submitted that if it is communicated to all the coparceners, it is sufficient. In Ram v. Khura, (AIR 1971 Pat. 286) held that communication to heads of the branches is enough, no one else need to be communicated. It is also held that if a notice is given to a coparcener who refuses to accept, the communication is enough and effective. In Papayya v. Venkata, (1968) 1 An.W.R. 36, held that notice to the Karta is notice to the minor. In Puttrangamma v. M.S. Rangamma, (AIR 1968 SC 1018), held that once the intention is declared and its communication made, the severance of status takes place, assent or dissent of the other coparceners is immaterial.

Mode of Partition:
a) Partition by suit b) Partition by agreement c) Oral Partition d) Unilateral declaration e) Partition by arbitration f) Partition by conduct g) Automatic severance of status h) Parties to Partition i) Registration of Partition deed

Partial Partition:

A partial partition may be: i) Partial as a property ii) Partial as to persons. i) PARTIAL AS TO PROPERTY: The Privy Council in Romalinga v. Narayan, 1922 PC 126, said that it is open to the coparceners to sever their interest in respect of part of joint estate, while retaining their status of a joint family in respect of the rest of the properties.

Partial Partition:

As a general rule no one can impose on others a partial partition. Similarly, no one can impose (except the father) a total partition on others. Thus, if some coparceners want partition, while the others do not, those who want partition may take away their share and the rest will continue to remain joint.

Partial Partition:

Sometime a partition may be partial under compulsion of circumstances. Such will be the case when properties are in several districts. A District Court is competent to effect partition only of those properties which are within its jurisdiction.

Partial Partition:
ii) PARTIAL AS TO COPARCENER:If one coparcener or a group of coparceners want to separate they cannot impose separation on others inter se. Nor is there any presumption in law to this effect. In Hari Bakhsh v. Baboo Lal, 1924 PC 90, the Privy Council held that the fact of a separation having been effected among brothers raises no presumption that there was a separation of the joint family constituted and headed by each brother i.e. brothers cannot be deemed to be separated from their own sons.

Partial Partition:

It is a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation among the other coparceners or they remained joint, and the burden is on the party who asserts the existence of a particular state of things on the basis of which he claims the relief. Father has power to effect partial partition between himself and his minor sons.

Partition by metes and bounds Mitakshara School:

In a partition by metes and bounds, the shares are allotted to coparceners on the following rules: Division between father and son: When partition takes place between father and sons, the rules is that each son takes a share equal to the share of the father.

Division between Father and Son:

Division between Brothers:

When a coparcenary consists of brothers and a partition takes place between them, the rule is that they take equal shares in the joint family property.

Division Between Brothers:

When division takes place among Branches:

When a coparcenary consists of several branches and a partition takes place, the rule is that each branch takes per strips (i.e. according to the stock) as regards every other branch, and the members of each branch take per capita (i.e. per head) as regards each other.

When division takes place among Branches:


A

S1

S2

SS

SS1

SS2

SS3

SS4

SS5

When division takes place among Branches:

When a coparcenary consists of all the four generations of P and his sons and grandsons and great-grandsons as shown in the next slide Since there are four generations, the partition will be in three steps:

First step:

In the first step, the partition will be among P and his sons. Since P has five sons, the property will be divided into 6 equal shares.

Second step:

In the second step, the shares 1/6 of the branches of S, S1, S2 and S3 will be divided among the members of each branch.

Third step:

SS, SS2, SS3,SS4,SS5,SS7, SS8 and SS9 have their branches. SSs 1/30 will be divided in his branch per capita, with the result that each will get 1/30 x 1/3 = 1/90. Similarly SS2s branchs share 1/30 will go to SSS2, SSS3, SSS4, into three shares 1/30 x 1/4= 1/120. SS3s branchs 1/30 will go to him and his son SSS5 in equal shares each taking 1/60. If we apply the same rule into other ranches the result will be: SS4 and SSS6 each will 1/24; SS5, SSS7 and SSS8, each will take 1/72 share; SS7 and SSS9 will take 1/48 each; SS8, SS10, SSS11, each will take 1/18 x 1/3 = 1/54 share; SS9, SSS12, SSS13, each will take 1/18 x 1/3= 1/54 share.

contd.
P

S1 SS4 SSS6

S2

S3

S4

SS

SS1 SS2

SS3
SSS5

SS5

SS6

SS7 SSS9

SS8

SS9

SSS7 SSS8 SSS SSS1

SSS2

SSS3

SSS4

SSS10

SSS11 SSS12 SSS13

Doctrine of Representation:

Under the Mitakshara School, coparceners interest devolves by survivorship. This is subject to the rule that where a deceased coparcener leaves male issues, the latter represent their ancestor in a partition, and take his share, provided that such issues are within the limit of coparcenary.

Doctrine of Representation:
P

S1

S2

S3

S4

SS3 SS1 SS2

SS4

SSS2

SSS1
SSSS

Doctrine of Representation:

If partition takes place, SSSS will not take any share, as on the death of S4, SS4 and SSS2, he got removed by more than four degrees from the last holder of the property, i.e., P, and thus lost his right of ever becoming a coparcener. Thus, if a partition takes place, in the first step, properties will be divided into four shares, i.e., per strips, P will take S1 will take . Since S2 is dead, his interest will be taken by his two sons SS1 and SS2 representing their father. In the second step, they (SS1 and SS2) being brothers (or as members of the same branch) will divide equally, i.e., each will take 1/8. Similarly since S3 and SS3 are dead, SSS1 will represent them and being the only person in this branch will take .

Doctrine of Representation (contd.)


P

D
D1 D2 D3

E
E1 F1

F
F2

G1

G2

G3

G4

Doctrine of Representation (contd.)

The family consists of the branches of two brothers, B and C, therefore, branch of each brother will take share, B being dead, D will represent him and his branch will take among themselves and by application of per capita rule, each will take of 1/2 , i.e., 1/8. C being dead his will pass by representation of his descendants. There are three sub-branches in the branch of C, of E, F,G, each branch will take 1/3 of , i.e., 1/6. This 1/6 will be divided among the members of each sub-branch according to per capita rule. Since E is already dead, his 1/6 will be taken by E1 who represents him. Fs 1/6 will be divided into two shares among F1 and F2 each taking 1/12. since G is also dead, his 1/6 will be taken by his sons G1, G2, G3 and G4 representing him and each will take of 1/6, i.e., 1/24.

Example 1
A

F G

Example 2
A
W1

W2

W3

W4

W8

W7

W6

W5

W9

Example 3
A
w

F D G

L
H

Example 4
A

Re-opening of Partition
The matter may be looked into two angles: - readjustment of properties; and - re-opening of partition: Where readjustment of properties is not possible the entire partition has to be re-opened. Generally, a partition can be re-opened if it was obtained by fraud, coercion, misrepresentation or undue influence: - fraud; - son in womb; - adopted son; - disqualified coparcener; - son conceived and born after partition; - absent coparcener; and - minor coparcener.

Re-union of Partition

A re-union can be made only between the parties to partition; and A re-union can take place only: (i) between father and son; (ii) between the paternal uncle and nephew; (iii) between brothers.

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