Report on:

Partition under Hindu Law

Submitted as per the requirement of semester internals of Family law- II

Submitted to:
Prof. Dr. Ms. Shivani Goswami
Course Teacher

Submitted by:
Pradeep Verma
4th semester B.B.A.LL.B Roll no. 03916503515
Batch: 2015-2020

University School of Law & Legal Studies

Partition under Hindu Law
Meaning
The Mitakshara lays down: “Partition is the adjustment of the diverse interests
regarding the whole, by distributing them into particular portions of the aggregate.”
Thus according to Mitakshara partition is used in two distinct senses; firstly, the
adjustment into specific shares the diverse rights of the different members
according to the whole of family property; secondly; the severance of joint status,
with the legal consequences resulting there from”. Partition has been defined as
“the crystallization of the fluctuating interest of a coparcenary into a specific share
in the joint family estate”.
Partition reduces the members to the position of tenant-in-common requiring only
a definite, unequivocal intention on the part of member to separate and enjoy his
shares in absolute severality. As soon as the shares of the coparceners are defined,
the partition is deemed effected.
It is not necessary that there should be an actual division of the property by metes
and bounds. Once the shares are defined, there is severance of joint status. The
parties may then make a physical division of the property or they may decide to
live together and enjoy the property in common. 
There is no need of any consent by other members nor a decree of a Court or any
other writing is necessary for partition. The Karnataka High Court in B.
Bassamma v. K.B. Sadyajathappa has held that severance of status is brought about
when shares of coparceners are crystallized by defining their share and once that is
done the mere fact that they continued to stay together in the same house would not
by itself make any legal impact on the severance of the status already brought
about as subsequent conduct of the parties would only pertain to the domain of
mode of enjoyment of the properties.
Once the members of the joint family or the heads of the different branches of the
coparcenary agree to specification of shares, the same can be treated to result in
severance of joint status, though the division by metes and bounds may take later
on. The Kerala High Court reiterated that the actual physical division or partition
by metes and bounds is not an essential ingredient for the purpose of effecting
severance in status.
Persons who have right to partition
The general rule that every coparcener has a right to partition subject to two
exceptions:
1. Unqualified coparcener has no right to partition
2. Sons cannot claim partition against their father if the latter is joint with his own
father.
1) Father:- Father has not merely a right to partition between himself and his
sons can also effect partition among his sons. Every father can make partition
of his self acquired property also (means distribution of his property as per
his wishes).
While doing this consent of sons is immaterial. Father can impose partition partial
or total, even between minor sons and himself. But this act of him must be
bonafide. Otherwise minor son after attaining majority can file for reopen of
partition.

2) Sons, Son’s Son, Son’s Son’s Son:- Every S, SS, SSS are entitled to partition
but under Bombay School when father is joint with his father or brothers
consent of father is essential.
If joint family consist of father and sons then son can ask for partition.

3) Son born after partition:- Smritikaras has different opinions on this.

Vishnu and Yajnavalkya – Partition should be reopened and share has to allot to
after born son.

Manu, Gautama, Narada – after born son could get share of his father alone.

Mitakshara school formulated a general procedure by applying both principles but

in different situations.

i) Son conceived at the time of partition but born after partition (unborn son)
When person is in mother’s womb under Hindu Law for many purposes equivalent
to born child. When mother is pregnant partition has to postponed until delivery.
But if coparcener does not want to postpone then has to reserve a share to unborn
son and go for partition otherwise child (son) can file a suit for reopen of partition
after his birth.
ii) Son begotten and born after partition (after born son)
If any son born after partition and he was not even in mother’s womb then the
following rules apply.
a) When father has taken his share in partition then he becomes coparcener only in
father’s share.
b) When father has not taken his share then after born son has a right to get
partition reopened and get the estate redistributed.

iii) If father renounces his share

When father renounces his share, son born after renouncement is not entitled to get
any right in the joint family. He will be remained as coparcener in father family.

iv) Adopted Son

Position of adopted son also differs with situation.
a) When there is a subsequently born natural son.
b) When there is no subsequently born natural son.

When natural son born after adoption then adopted son interest differs from school.

Right of Adopted son

1) Bombay and Madras School – 1/5 of estate
2) Benaras School - ¼ of estate
3) Bengal School - 1/3 of estate

But presently by virtue of Hindu Adoption & Maintenance Act 1956, Adopted son
is entitled to equal share with natural son.
v) Son of void & voidable marriage

Since son of void & voidable marriage is not coparcener, he cannot sue for
partition.

vi) Illegitimate son

Any category of illegitimate son is not entitled for partition because he is not a
coparcener.

vii) Minor and lunatic coparcener

No difference between major and minor son, lunatic or physically deformed son all
are entitled for partition and if proper partition is not made by not giving equal
shares to them. Coparcener can challenge and reopen to partition.

viii) Absent Coparcener

Any coparcener who is absent at the time of partition, a share to be allotted to him
until he specifically renounces his interest. If share is not allotted he can also
challenge and get the partition reopened.

Right of female:-
As already mentioned no female has right to partition but certain females are
entitled for shares if partition is effected.

1) Father’s wife, mother and grandmother is entitled to share as per Hindu

women’s Right to Property Act 1987 when Mitakshara Coparcener dies leaving
behind widow, she took his share at the time of partition she is entitled to take the
extent of her husband share.

2) Hindu women’s Right to Property Act 1987 when Mitakshara Coparcener dies
leaving behind widow, she took his share at the time of partition she is entitled to
take the extent of her husband share. Hindu women’s Right to Property Act 1987
when Mitakshara Coparcener dies leaving behind widow, she took his share at the
time of partition she is entitled to take the extent of her husband share.

 Modes of partition 
Partition by Mere Declaration:
Partition under the Mitakshara law is severance of joint status and as such it is a
matter of individual volition. An unequivocal indication of desire by single
member of joint family to separate is sufficient to effect a partition. The filing of a
suit for partition is a clear expression of such an intention.
The oral or written communications by a coparcener could be enough to sever the
joint status but the communication could be withdrawn with the consent of other
coparceners and with its withdrawal partition would not take place.
 Partition by Will:
Partition may be effected by a coparcener by making a will containing a clear and
unequivocal intimation to the other coparceners of his desire to sever himself from
joint family or containing an assertion of his right to separate. 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 severance of status.”
Partition by Agreement:
An unequivocal expression of the desire to use the joint family property in certain
defined shares may lead the members of joint family to enter an agreement to
effect a partition. The two ideas, the severance of joint status and a de facto
division of property are distinct. As partition under the Mitakshara law is effected
on severance of joint status, the allotment of shares may be done later. Once the
members of joint family or heads of different branches of the coparcenary agree to
specification of shares, the same can be treated to result in severance of joint status
though the division by metes and bounds may take place later on.
Partition by Arbitration:
An agreement between the members of joint family whereby they appoint an
arbitrator to arbitrate and divide the property, operates as a partition from the date
thereof. The mere fact that no award has been made is no evidence of a
renunciation of the intention to separate. Where all the coparceners jointly have
referred the matter relating to the partition of their shares in the joint family to an
arbitrator, this very fact expressly indicates their intention to separate from joint
status. In such cases even if award is not given, their intention is not dissipated.
Partition by Suit:
Mere institution of a partition suit disrupts the joint status and a severance of joint
status immediately takes place. A decree may be necessary for working out the
resultant severance and for allotting definite shares but the status of a plaintiff as
separate in estate is brought about on his assertion of his right to separate whether
he obtains a consequential judgment or not.
So even if such suit was to be dismissed, that would not affect the division in status
which must be held to have taken place when the action was instituted. Ordinarily
a partition is affected by instituting a suit to this effect. In case of a suit for
partition in joint status, father’s consent to the suit for partition is no longer
necessary. The son is fully eligible to file a suit for partition even during the
lifetime of father.
Exception:
The general rule mentioned above will not apply where a suit is withdrawn before
trial by the plaintiff on the ground that he did not want separation any more. In
such a case there would be no severance of joint status. Where the suit is proved to
be fraudulent transaction resorted to with an intent to create evidence of separation,
no severance in the joint status takes place. If the defendant dies and the suit is
withdrawn on that ground there is no separation.