INTRODUCTION
“The division of property into two areas is known as partition. Under the Hindu law, partition suggests a division of property of a Joint Hindu family to give separate conferment of status on the bound together coparceners. It is proper to observe that no partition is possible if there is only a coparcener in a Joint family. A coparcener is a person who secures home as a coheir with others. The possibility of a coparcener is an essential piece of the Joint family property according to Hindu Law. All of the coparceners have a comparable bit of the property of the Joint Hindu Family and all of them save a basic title in the property. Expecting a Hindu Joint family decides to do fragment, its joint status of a family arrives at a resolution. In any case, to set up a state of jointness among the coparceners in a family, it is essential to have in any occasion two coparceners present in the family”.
A partition can be possible on the property which is capable of being partitioned. If at all there is a separate property of any of the coparceners in the Joint family it cannot be subjected to partition. In the case of “Mrutunjay Mohapatra v. Prana Krushna Mohapatra, the Court stated that when the elder brother had purchased the property from his persona funds it cannot be subjected to partition and included in the Joint Family at the instance of a younger brother”. Moreover, in the case of “Prafulla Kumar Mohapatra v. Joy Kanta Krushna Mohapatra the court stated that when the property belongs to the paternal uncle and there is no substantial evidence about the share of the property of the claimant’s father, it would be considered as separate property and not a property of Joint Hindy family”.
“Partition under Hindu Law can be total or partial. In total partition, all the members cease to be members of the HUF and all the properties cease to be properties belonging to the said HUF. Partition could be partial also. It may be partial vis-a-vis members, where some of the members go out on partition and other members continue to be the members of the family. It may be partial vis-a-vis properties where, some of the properties, are divided among the members other properties continue to be HUF properties. Partial partition may be partial vis-a-vis properties and members both”.[1]
“Under Mitakshara law there was a division of right and division of property and under Dyabhaga school of law partition just methods the division of the property as per the particular portions of the coparcener. Dayabhaga School of Law was seen in Bengal and Assam, Mitakshara school of Law was seen in rest of India”.
ESSENTIALS OF PARTITION
- “Formation of an intention toseparate from the family: At least one of the family members can have the intention to partition from their family”.
- “An unequivocal, unilateral, and definite declaration oftheir intention to separate.”
- “Communication ofthe declaration to all the coparceners.”
SUBJECT MATTER OF PARTITION
The lone property which can be separated is the coparcenary property. Coparcenery property is hereditary property. Self-procured property of a part isn’t subject to partition as it has a place with the proprietor.[2] Self-gained property is possessed by an individual well deserved more, gift or will.
TYPES OF PARTITION UNDER HINDU LAW
Each coparcener’s advantage loosens up to the whole joint family property; nonetheless, every single one of them has an offer for the whole family property, he has no unequivocal offer in that. The partition can happen in two unique manners:
De jure partition: “In an undivided coparcenary, all the current coparceners have a joint offer in the property, and till the partition happens, none of the coparceners can tell the specific measure of offer that he claims in the property. Further, because of the utilization of the convention of survivorship, the interests can continue fluctuating because of births and passings of the other coparceners. In any case, when the local area interest is separated at the case of one coparcener or by the common understanding that the offers are currently unmistakably fixed or divided, such sort of parcel is known as De Jure partition wherein there is no extent of use for Doctrine of Survivorship”.
“De facto Partition”: “Unity of possession which signifies the enjoyment of property by the coparceners may even continue after severance of Joint status or division of community interest. The number of shares in the property might not be fixed but no coparceners reserve the right to claim any property as falling into his exclusive shares. This breaking up of Unity of Possession is affected by an actual division of property and is called a de facto partition”.
PERSONS WHO CAN DEMAND PARTITION
“Both the schools i.e. MItakshara and Dyabhaga allow every coparcener to seek partition and entitled them to share. Even a minor can ask for a partition. Apart from this following coparcener cannot seek partition”:
Under Bombay school, children can’t request partition against their father if the latter is connected with his father or collateral.
- “Unqualified Coparcener – thusly, the coparceners save the advantage to demand a partition and each coparcener is equipped for having his offer. Following are individuals qualified for demand partition.
- Father- He can compel a partition, between his minor kid and himself with bonafide assumption, else, it will return by the coparcener. Because of child and father, it should be by basic consent.
- Children and Grandsons, and an incredible grandson-Under Bombay School, the child can’t look for partition without the assent of his father, if the father gets along with his father and if there ought to be an event of Punjab Customary Law, as Punjab Customary law doesn’t give a privilege to lawson of partition by birth.
- Child Born after Partition-As shown by Vishnu and Yajnavalkya the parcel should be resuscitated/resumed to give the concerned offer after the introduction of a child.
- Adopted Son- A legitimate adopted male child qualifies to become an individual of a joint family. He likewise has the privilege to partition and equivalent share too. As per Dayabhaga Law, an adopted child when contrasted with after brought into the world natural child, takes one-third share, in Bombay and Madras one-fifth share, and Banaras one-fourth of the portion of the last mentioned. The laws identifying with a selection have been altered by the passing of the Hindu Adoptions and Maintenance Act, 1956.
- Minor Coparcener-A minor coparcener, not in any manner like the major coparcener, can’t demand partition from the father or the Karta, yet this, regardless, don’t infer that the partition will not be impacted in his case. In explicit cases, where a father may act in such a manner, that may ominously impact the minor’s benefit, by then, a minor can report a suit for partition against the Karta through his well-wisher or next companion.
- Alienee- A non-coparcener doesn’t have the alternative to demand segment, in any case, there’s an exclusion where the offer has been offended by a brought together coparcener, in states where he is allowed to do thusly, by then the alienee can demand partition. An alienee doesn’t reserve the option to have joint responsibility for a property as he is an outsider to the family. Such parcel will not negatively affect the situation with the rest of the coparcener”.[3]
“No female has a privilege to partition however if that partition happens, some female (Father’s Wife, Widowed mother, and paternal widowed grandmother) has an appropriate a share in the partition. After the 2005 amendment, daughters under Hindu families are also entitled to partition. However, a coparcener is missing at the time of partition, it is suggested that his share is to be kept independently. If no share has been saved aside for him, he is qualified to get the partition reopened”.
“The Hon’ble Supreme Court in Phulvati and Ors. v. Prakash and Ors.[4] Held as under:
The text of the amendment itself provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement of Hindu Succession (Amendment) Act, 2005’. Section 6(3) talks of death after the amendment for its applicability. Because of the plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor a necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on the opening of succession as per the unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained”.
Author(s) name: Mahalaxmi Agrawal (Maharashtra National Law University, Aurangabad)
[1] Angad, Laws Regarding Partition Of Property In India, http://www.legalserviceindia.com/legal/article-3273-laws-regarding-partition-of-property-in-india.html
[2] Partition of property under Hindu law, https://bhandarilawfirm.com/partition-of-property-under-hindu-law/
[3] Rahul Sharma, Partition under Hindu law, June 14, 2020, https://www.lawcolumn.in/partition-under-hindu-law/#_Who_all_are_eligible_to_demand_Partition_under_Hindu_Law
[4] Phulavati and Ors. v. Prakash and Ors, AIR 2011 Kar. 78
