NAME:RAJ VARDHAN AGARWAL

COURSE: BBA LLB(H)

BATCH:2017-2022

FAMILY LAW II

The concept of a coparcener is an integral part of the Joint family property in accordance with
the Hindu Law. Each of the coparceners has an equal share of the property of the Joint Hindu
Family and each of them reserves an inherent title in the property. If a Hindu Joint family
decides to do partition then its joint status of a family comes to an end. However, in order to
establish a state of jointness among the coparceners in a family, it is imperative to have at least
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
partition3. 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 claimant’s father, it would be considered as separate property
and not a property of Joint Hindy family.

       

Partition under Mitakshara and Dayabhaga School

Dayabhaga school: In a Dayabhaga school every adult coparcener reserves a right to demand
partition by the physical demarcation of his shares. Such partition must be in accordance with the
demarcation of specific shares of partition i.e. partition by bounds and metes.

Mitakshara school: In Mitakshara school there is no demarcation of property into specific shares,
and essentials of a coparcener need to be established, but the existence of Joint property is not an
essential element for demanding partition. All it takes to demand a partition is a definite and
unequivocal declaration that conveys his intention of separating from the family.

De jure and De facto Partition 

De Jure Partition: In an undivided coparcenary, all the existing coparceners have a joint share in
the property, and till the partition takes place, none of the coparceners can tell the exact amount
of share that he owns in the property. 
Further, due to the application of the doctrine of survivorship, the interests can keep on
fluctuating due to births and deaths of the other coparceners. But, when the community interest is
broken down at the instance of one coparcener or by mutual agreement that the shares are now
clearly fixed or demarcated, such type of partition is known as De Jure partition wherein there is
no scope of application 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 amount 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.”

Essentials of a valid partition 

It is pertinent to note that a coparcener reserves a right to demand partition at any time without
the consent of the other coparceners. Therefore, in order to bring demand for partition the
following essentials must be established:-

1. There must be an intention to separate from the Joint Family.

2. There must be a clear, unequivocal and unilateral declaration which conveys the intention
to separate from the Joint Family.
3. The intention must be communicated to the Karta or to the other coparcener in his
absence.

Effect of Partition 

A Partition can lead to severance of property or separation of property in a joint Family. After
partition, a person is considered as free from his rights, obligations, duties and responsibilities
arising out of a Joint Family. After the partition has happened the fixed number of shares of
every existing coparcener gets defined. Moreover, post-partition since the number of shares has
been fixed the fluctuations that happen in a family due to births and deaths stops. And the
property which has been acquired by the coparcener after the partition will be known as his
separate property or self-acquired property.

Partition of coparcenary property

If an intention is expressed to partition the coparcenary property, then each share of coparceners
becomes clear and ascertainable. It is pertinent to note that once the share of the coparcener is
determined, it ceases to be a coparcenary property. The parties in such an event would not
possess the property as joint tenants but they will possess the property as tenants-in-common.
Tenancy in common is an arrangement where two or more people share rights in the property.

Various modes of partition

Partition by father
The father under the Hindu Law has superior powers in comparison to the other coparceners
wherein by virtue of his rights i.e. ‘patria potestas’, he can separate himself from the Joint
family15 and also separate each and every son, including minors by affecting a partition.

Partition by agreement

If all the coparceners dissolve the joint status, it is known as Partition by agreement. The court
does not have the power to recognize any partition unless there is an agreement between the
parties on mutually agreeable terms. Moreover, a Partition agreement can also be an internal
arrangement among the family members, wherein the rights are compromised in order to keep
the dignity of the family and avoid unnecessary litigation. It is pertinent to note that coparceners
by a mutual agreement, can agree that they would not affect partition till the happening of certain
event, specific time period or even till the life of a particular coparcener.

Partition by Suit

The most common way to express one’s intention to separate himself from the joint family
property is filing a suit in the court. As soon as the plaintiff expresses his unequivocal intention
to get separated in the court, his status in the joint family property comes to an end. However, a
decree from the court is required which decides the respective shares of the coparceners. The
severance of status takes place from the date of filing such a suit in the court. Both a minor and a
major coparcener may approach the court for this purpose.

In the case of Jingulaiah Subramanyam Naidu v Jinguliah Venkatesulu Naidu, a partition was
sought of the property in the name of the wife of the opposite party claiming that they are joint
properties and without making titleholder as the party. Therefore, the court stated that when the
partition is sought of a party, it is a mandatory condition to make titleholder as a necessary party.

Partition by Conversion

Conversion to a non-Hindu religion can lead to severance of status of coparcener belonging to

the Joint Family. The member who converted into religion would lose his membership of the
coparcenary but it will not affect the status of other coparceners.

Partition by Arbitration

In this mode of partition, an agreement is made amongst the coparceners of a joint family in
which they appoint an arbitrator to arbitrate and divide the property. Such a partition becomes
operative from the date thereof.

Partition by Notice

“The essential element of partition is the intention to separate which must be communicated to
other coparceners. Therefore, a partition may come into effect even by  notice to the coparceners,
whether accompanied by a suit or not.
Right to Demand Partition

As a common rule, every coparcener of a Hindu joint family is permitted to demand partition of
the coparcenary/ Hindu joint family property.

1. Special power of father: A Hindu father reserves a right to effect a partition between
himself and his sons. Despite the express consent or dissent of his sons, he can exercise
this right. Therefore the severance of the property can be done as per the special power
given to the father.
2. Son, Grandson and Great-grandson: All coparceners, who is major and of sound mind is
entitled to demand partition anytime irrespective of whether they are sons, grandsons or
great-grandsons. A clear demand made by any coparcener, with or without reasons, is
sufficient and the Karta is legally bound to comply with his demand.
3. Daughter:-Moreover, daughters, son in a mother’s womb, adopted son, son born after
void or voidable marriage, an illegitimate son etc. also reserves a right to demand
partition.

In the case of Pachi Krishnamma v. Kumaran, the court stated that the daughter claimed his
share as equal to the son in the partition of joint family property, but she failed to prove her
customs which says that a daughter can get an equal share as to the son. But after the amendment
of 2005 in Hindu Succession Act, it gave the power that a daughter has the right to ask for
partition and can claim an equal share as to the son in the partition of joint family property

In the case of Prakash & Ors. v. Phulavati & Ors  Full Bench of the Bombay High Court in this
case in Para No. 23 of the judgement held that: Accordingly, we hold that the rights under the
amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective
of when such daughters are born. Disposition or alienation including partitions which may have
taken place before 20-12-2004 as per the law applicable prior to the said date will remain
unaffected. Any transaction of partition effected thereafter will be governed by the explanation.

In the instant case of Danamma Suman Surpur & Anr. v. Amar & Ors, The Hon’ble Supreme
Court of India in this case as on 1st Feb 2018 held that: Daughters Have Equal Rights In
Ancestral Property, Even If They Were Born Before Enactment Of Hindu Succession Act. 

In the instant case of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan. Vs. Patel
Shantaben Bhikhabhai & Others, in this the Gujarat High Court as on 26/09/2017 held that a
Hindu daughter after marrying to a Muslim guy does not lose her right to inherit property under
The Hindu Succession Act . It was further observed that: 

“Prima facie, I am of the view that for the purpose of getting her name entered in the record of
rights, all that was necessary to be indicated was that the applicant is one of the Class-I legal
heirs. It was not necessary for her to declare that she is married to a Muslim and she has
embraced Islam by renouncing her Hindu religion. Once the question of law is answered in
favour of the applicant, I do not see any good reason to lay much emphasis on the issue of an
affidavit filed by the applicant.”
4. Minor coparcener: The test for partition in case of a minor coparcener is whether the partition
is in the benefit or interest of the minor or whether it can cause danger to the interests of the
minor person. It is pertinent to note that it’s upon the discretion of the court to decide that a
particular case falls under the ambit of interests of the minor. 

As per the Hindu Law, if at all a minor has an undivided share in a Joint Family the Karta of the
Joint family will act as a guardian of the minor. However, when it comes to the right to demand
partition by a person, the rights of the minor and rights of major are similar in nature. 

The minor reserves a right to claim partition just like an adult coparcener by filing a suit through
his guardian. But, if it is found that the suit is not beneficial to the minor the suit can be
dismissed. Therefore, it is the duty of the court to serve justice to the minor by protecting their
rights and interests.

Reopening of Partition 

The Hindu law, after the partition, has made it possible to reopen the partition or revoke the
partition. In the cases of Mistake, Absentee Coparcener, Fraud, Son in Womb, Son conceived
and born after partition, Disqualified coparceners and the additional property after the partition
can be reopened in accordance to the Hindu Law.

1. Mistake: If at all the members of the Joint family have left their joint family properties by
mistake and are left out of the partition, then the partition can happen later.
2. Fraud: Any partition can be revoked which is done because of the fraudulent activities.
For example- If the assets are fraudulently represented, then the coparcener can claim his
right for the reopening of partition. 
3. Disqualified coparcener: There can be instances wherein due to some technical
constraint, the disqualified coparcener can fall short of his share at the time of partition.
He reserves a right to get the partition removed by removing the disqualification.
4. Son in Womb: If a son is in Womb, and no shares were allotted to him, at the time of
partition then later it can be reopened.
5. Absentee Coparcenary: Coparcerner can reopen the partition if he is absent at the time of
partition and no share is allotted to him.

Reunion under Hindu law

The Dayabhaga, Mitakshara and the Madras School of Law are of the opinion that when a
member of a Joint Family if once separated, they can only be reunited with father, brother and
paternal uncle and not with the other members of the family. It is pertinent to note that only the
coparceners who are affecting the joint status and it’s only at the instance of a coparcener that a
reunion can take place.

In order to constitute a reunion, there must be the intention of the parties which conveys their
interest to reunite. By showing an intention to reunite there is an agreement between the parties
to reunite in the Joint family. Such an agreement need not necessarily be expressed and it can be
implied also. Moreover, the Burden of proof of reunion will be on the person who is willing to
assert it. The members tend to come back together if at all they can maintain the severance but
can also dwell together or trade together. This coming together is totally different from a formal
reunion.

Suit for Partition 

Suit for partition and Joint Hindu Family

Where there were no accounts of the joint family income nor any substantial proof that has been
submitted in order to show that property as alleged was actually purchased by father from the
Joint family income and on the other hand, the defendant brother was successful in proving by
cogent and necessary evidence that the property in dispute was actually acquired from his own
income and resources i.e. without taking any aid from the joint family income, therefore, the suit
filed by plaintiff-brother is liable to be dismissed.

Moreover, it was further held that if at all any family member were living in the same premises,
there could not be any presumption or any inference with regard to the joint family nucleus so far
as income is concerned until and unless it is proved in accordance with any cogent legal
evidence.

Suit for partition and separate possession filed by minor son

When the suit was filed by minor son for partition and there was no dispute with regard to fact
that Karta and his son both were entitled to half of the share in the suit property, however, at a
later stage it was found that the Karta had sold a portion of the suit property without having the
consent and knowledge of the minor son.

Then it was accordingly held that in the event of partition between the parties the portion which
is sold already by Karta under sale in question cannot be allotted to his proposed share and as
such no prejudice per se would be caused to the minor son due to the sale in question and so
impugned order holding a sale in question and so it was accordingly held that the impugned
order is valid and it does not require any inference.

Suit for partition filed by widow 

If at all a suit is instituted by a partition i.e. a member of a Joint Hindu Family, all the
coparceners have to be made parties to it, as defendants. Further, wherein the partition is sought
between the branches, then only branches who are representative parties shall be made parties to
the suit.It is imperative to note that all the females in the family are entitled to get the share at the
time of partition. or a purchaser of a coparcener’s vested interest can also be implicated as
defendants.

In the case of Jingulaiah Subramanyam Naidu v. Jinguliah Venkatesulu Naidu, in the instant
case, a partition was sought of the property in the name of the wife of the opposite party and they
were accordingly claiming that they were as the joint family proprieties and therefore no as such
titleholder of the instant property has been made. Therefore, the apex court held that when there
is a partition of a particular property, the titleholder must be made a necessary party for such
property.

Effect of oral partition 

In Ram Charan Sharma v. Suresh Chand Pathak and others, the finding was recorded by the
Trial court that the deceased had orally partitioned the disputed property equally in favour of the
two sons during her lifetime in presence of her husband and sons. 

However, the husband was claiming one-third share in the disputed property but due to failure on
part of the husband i.e. to examine himself before a trial court to state on oath that no partition
had taken place during the lifetime of his wife, it was duly held that husband would not be
entitled to get one-third share of the property that has already been partitioned because of oral
partition is permissible in accordance with the Hindu Law.

Moreover, in the same case itself, it was observed that the deceased had orally partitioned the
property in dispute equally in favour of the two sons during her lifetime in presence of her
husband and sons, however, husband’s claim for the one-third share in the property in dispute
was rejected in absence of a separate suit or a counterclaim by a husband seeking a decree for
same from the Trial Court with the requisite court-fee, therefore, the husband was held not
entitled to prefer an appeal against the partition decree in favour of son.

In a case wherein it was not disputed that the suit property was a joint family property and the
document in respect of the partition came into existence after the commencement of oral
partition had already taken place, therefore the aforesaid document would neither require
requisites of stamp or registration. If at all there is an oral partition, the oral partition itself
creates a vested interest in that specific property and not the document which comes into
existence later the document can be used for proving the severance of status.

Oral partition in a joint Hindu Family

It is pertinent to note that, where there was an oral partition in the joint Hindu family and the
land was duly partitioned among the father and his sons and land as also recorded in the revenue
papers accordingly, thereafter, if the father had the father has accordingly chosen to reside with
elder son who is taking care of father in terms of food and agriculture, it cannot be stated that
there was a reunion of the family as it was only a pious duty and obligation of the elder son or
any other son of the family to take care of the old father.

Therefore, when the father was taken care by the elder son, the land which fell into the share of
the father was taken care by the elder son, and the land which fell into the share of the father by
itself cannot be treated as an incidence of reunion.

It is imperative that there must be an agreement which is specific or implied in nature between
the parties which can also be gathered from the given circumstances. And the burden to prove
the reunion lies on the person who claims reunion of the partitioned family. Therefore, mere
residing or providing food and taking care of the lands of the old age father is not bound to be
treated as a reunion of the family i.e. to deprive other brothers to succeed property of the father,
the consequence on his death will be that all the sons will get an equal number of shares.

Shares to female members at a partition 

The allocation of shares to female members in Mitakshara coparcenary partition gives rise to
considerable uncertainty and doubt, especially after the passage of new enactments that codify
the law of succession, adoption and maintenance. 

Most of this is due to partial codification of the Hindu Law. codifying the Hindu law of
marriage, succession, adoption and maintenance, the legislature left the law of partition
unchanged and even ignored the law of partition to be amended. Under the practice, however,
Section 6 of the Hindu Succession Act provides for the retention of a coparcenary under
Mitakshara, thus granting succession rights to female members of  Class I of the Schedule or to
male members who claim through such female members.

 Partition at the lifetime of the father

(a)Taking a liberal view that a wife’s right to a share on partition during the father’s lifetime
exists due to her co-ownership in the property of the husband, the wife should be allocated a
share on partition during the father’s lifetime.

(b)Even if it is to be presumed that it is in place of maintenance, there is no express or implied

provision which, during the lifetime of the family, negates its right to such a share on the
partition. Such a case cannot be protected by Section 22(2) of the Hindu Adoptions and
Maintenance Act, 1956, if it has an impact at all, as it deals only with the maintenance issue
subsequent to devolution of property by maintenance.

A paternal grandmother’s right to share among grandsons on a partition is not affected.

          

A partition claim is filed and the husband or son’s death happens when the suit is pending

(a) If a preliminary decree has been passed in the partition dispute, she will be entitled to both
the shares i.e. share on the partition as well as the inheritance.

(b) Where succession opens after a partition suit is introduced but before the preliminary decree
is passed, the issue should be considered as open. Moreover, the most preferable point of view
would be that she is entitled to the share.

Where a mother or wife receives a share under the Hindu Succession Act on the death of the
husband or son and thereafter an actual division among the coparceners takes place

1. The right of a woman to share in the partition after her father’s death was “replaced” by
the 1937 Hindu Women’s Rights to Property Act. In repealing the Hindu Women’s
 Rights to Property Act of 1956, the Hindu Succession Act cannot be regarded as reviving
the mother’s right in the absence of any explicit legislative provision to that effect.
2. The share given to a mother on the partition after the death of the father is in lieu of
maintenance. Since the Hindu Adoptions and Maintenance Act codified the law and gave
the mother a specific right, the old rule should be considered to have been abrogated if it
remains.

Conclusive Analysis 

It is humbly suggested by the author that the procedure established for partition must be slightly
modified, so that partition under Hindu law can be done with ease. There are a lot of material
discrepancies pertaining to the filing of a suit of partition and effect of oral partition that has
been discussed in this research paper. Further, it is stated that the law of partition must recognize
the right to female to partition as there have been cases wherein the rights of mothers and
daughters have been discarded.

A partition can be defined as a concept of Hindu Law which is regulated by mainly two kinds of
schools of thought i.e. the Mitakshara and Dayabhaga schools respectively. Partition is mainly
done amongst the members of the Joint Hindu Family, which means a severance of status of the
jointness and also the unity of possession among the members of the joint family.

It is pertinent to note that under Hindu Law can partition can take place via arbitration, notice or
an agreement, will etc. Under the Mitakshara school of Law, it has been duly stated that partition
can take place by branch or by stripes. However, under the school of Dayabhaga partition is only
possible after the death of Karta in the family. Therefore it can be stated that Dayabhaga school
does not follow any concept like coparcenary.

So, it can be inferred that partitioning is a method that performs the role of bringing to an end a
Hindu joint family. Through the partitioning process, a joint family property becomes every
coparcener’s self-acquired property as per its shares. Partitioning can be achieved by separating
the land by metes and boundaries, or by severing the mutual relationship, or both. Precisely,
partitioning happens in the real sense only when a Hindu Undivided Families joint status ends.