The word partition basically means bringing joint status to an end. Before codification of Hindu succession act, 1956 the ancient schools of Hindu law i.e. Dayabhaga and Mitakshara, regulated partition according to their own rules. Under Mitakashara School, partition means
- Severance of interest – De facto partition, and
- Actual division of property – Partition by metes and bounds- De jure partition
Partition is adjustment of diverse rights regarding whole by distributing specific shares. It has effect of crystallisation of fluctuating interest of coparceners into specific interest.
Lord Vestburn says there are 2 stages of partition,
- Division of right– here the unity of possession is retained and only community of interest is lost, by express intention of partition, share of coparceners is specified and fixed but share is not separated physically.
- Division of property– It is actual division of property, where property gets physically separated and there is no unity of possession or community of interest left.
Supreme Court in Kalyani v. Narayanan laid down following essentials of partition
- Coparceners to express clear and definite will of partition
- Expression of intention by medium including notice, will or suit, depending upon circumstances.
- Desire to partition to be made known to all members of joint family who are likely to be affected by partition.
- Joint status comes to an end by partition.
RULES FOR PARTITION BY METES AND BOUNDS
Earlier Hindu sages recognised Jyestha Bhaga doctrine in which Karta/eldest brother took double share. In modern Hindu law it is not recognised.
Rules of partition,
- Division between father and son – Each son takes share equal to the share of father. A has three sons B, C, and D. Each of them get 1/4th share.
- Division between brothers – When coparceners consist of brothers and partition takes place between them they get equal share in joint family property.
- When division takes place among branches – When coparceners consist of several branches and partition takes place, rule is that each branch takes per stripes and member of each branch takes per capita(per head) as regards each other.
- Doctrine of representation – Coparcener interest devolves by survivorship. Where a deceased coparcener leaves male issues, latter represent their ancestor in partition and takes his share provided that issues are within limit of coparcener.
SUBJECT MATTER OF PARTITION
As a general rule, entire joint family is and separate property is not subject of partition.
- Properties not capable of division- Certain species of joint property are by their nature incapable of division. If divided they in respect they will lost their value. In respect of these properties there are three methods of adjustment,
- Some of these properties may be enjoyed by coparcener jointly or by turns.
- Property may be allotted to share of a coparcener and its value adjusted with other property allotted to other coparcener.
- Property may be sold and sale proceeds may be distributed among coparceners.
Apart from this court has inherent power to divide any property and adopt any other course as may appear just and equitable.
- Family shrines, temples and idols – They constitute such species of property which can neither be divided nor sold. Court adopted following courses
- Possession of them be given to a coparcener with liberty that other coparcener have access to them for worship at all reasonable times.
- Coparcener may hold them in turn, for tenure in proportion to their share in property.
- If family consist of Pujaras who make a living out of offering, court may settle a scheme coparcener worships and takes offering by turns.
DEDUCTION AND PROVISIONS
Before division can take place, provision should be made for following liabilities of family
- Debts – Provision for payment of outstanding debts of father. Not for individual debts of coparcener.
- Maintenance – certain member who don’t get share of partition but have a right to be maintained out of family funds like
- Disqualified coparcener and their immediate dependents
- Mother, step mother, and grandmother
- Performance of ceremonies – provision for funeral expenses and for performance of other
It may be partial as to property or partial as to person.
Partial as to property – No one can impose partition except father. Thus if some coparcener want partition, while others do not, those who want partition may take away their share and the rest will continue to remain joint. Sometimes a partition may be partial when one or more property is divided and other properties remain joint.
Partial as to coparcener – If only one or some members of joint hindu family wants to separate from rest, it is partial partition to person.
In wake of partial partition, a problem relating to allotment of shares arises when remaining coparcener effect a partition subsequently.
Rebus sic stantibus – Doctrine means that existing facts are taken into consideration i.e. state of the family at the time of each partition should be taken into account.
Bombay high court held that earlier partition(s) shall be ignored and later partition is to be taken as new partition while Madras and Mysore high court gave a more equitable view that earlier partition to be taken into account.
REOPENING OF PARTITION
Earlier according to text of Manu, it was propounded that if partition is once made it is final and irrevocable. If all assets and debts have already been distributed according to rules of partition and property is discovered afterwards- it must be divided equally.
But through the courts in India are of the view that partition can be reopened in certain cases but if readjustment is possible partition is not reopened. Some properties may be left out from partition by mistake or oversight or lost properties may be recovered later on. In such cases of slight inequalities, process of readjustment may be applied without disturbing entire division of properties.
Partition may be reopened in case,
- Where whole scheme of distribution of properties is fraudulent.
- If no share is reserved for son in womb.
- Son adopted to deceased coparcener by his widow after partition is entitled is entitled to reopen the partition.
- If disqualified coparcener recovers from disqualification.
- Absentee coparcener
Partition under Mitakshara law is one of the fundamental concepts that govern division of ancestral property among coparceners. This school has influenced inheritance rights and property distribution for generations. At present the law that governs partition among Hindu families is Hindu succession act, 1956. Before enactment of this act partition was governed by customary laws.
Act has brought about significant reforms in matter of partition and it makes a uniform system of inheritance that is applicable equally to Mitakshara and Dayabhaga School. Section 4 of the act gives it overriding effect over all earlier laws, customs, rules that were applicable to Hindus with respect to succession.
The article is authored by Bhoomi Patel, she is 4th year B.A. LL.B (hons) students in School of law, D.A.V.V.