Partition Under Hindu Law

Dr Samreen Hussain
 Meaning of partition
• Means to divide into parts- ending of joint status
• Requirement of two coparceners
• to constitute a partition all that is necessary is a definite and unequivocal
indication of intention by a member of a joint family to separate himself
from the family
• Everything to be partitioned or valued (owelty of money) or sharing by turns
• Two types- de jure: when intention is expressed and probable share is
converted into fixed share. Defacto: actual division by metes and bounds.
• Consequence- the property received by him is in nature of separate property
from whom he has separated but for his issues/ lineal descendants, it’s a
coparcenary property.
• On marriage to non-Hindu under SMA 1954. The property loses the
characteristic of coparcenary and becomes separate in the hand of the
individual.
• A agreement not to effect a partition – specified
time, or happening of certain event- valid. For
perpetuity- invalid.
• Partition can only be asked by the coparceners-
both major and minor. The members are only
entitled to right of residence (in case of house) and
maintenance. After born son can re-open the
partition but not an adopted son.
• No oral partition allowed after 2005 amendment in
the HSA 1956
• The IT Act only recognizes- actual partition and notional
partition is not recognized under it.
• Partition does not take place at the death of the coparceners.
Its according to the wishes
• Partition is not a transfer of property.
• Partial partition not recognized Commissioner of Income-tax,
v. Khacheru (HUF ) [2009] 185 TAXMAN 398 (PUNJ. & HAR.)
• Partial Partition would be valid if claimed by male members
and not by female member Commissioner of Income-tax v.
Shyam Lal Agrawal (HUF ) [2009] 178 TAXMAN 227 (ALL.)
• For the revenue acts (IT)-physical division of the property as
the property admits of is a condition precedent for
recognition of partition u/s. 171 of the Act.
• The family business can be partitioned by making necessary
entries of division of capital of the family. Such division must,
of course be effective so as to bind the members. For an
asset like family business or share in partnership, there cannot
be said to be any other mode of partition open to the parties
if they wish to retain the property and yet hold it not jointly
but in severalty and the law do not contemplate that a person
should do the impossible (Chandas Haridas and another vs.
CIT (196) 39 ITR 2002 (SC)).
 Modes of effecting partition
• Formation of intention
• Declaration of intention
• Communication of the karta , if he is
unavailable to the other coparceners
- Raghavamma V chenchanamma (1964 SC)
- Communication of the partition to be
completed during the lifetime of coparceners
 Person entitled to demand partition
• Coparceners- both major and minor .
• Daughters too now can ask for partition.
• Adopted son
• Purchaser.
 Person entitled to get share
• Apart from all the people who demanded partition. There
are three females who are entitled to inherit if there is a
partition
1. Father’s wife- when the partition is between the father
and son. She will get share equivalent to son.
2. Widowed mother- when the partition is between the
brothers. Share equivalent to each brother
3. Paternal grandmother- when the partition is between
grandsons. Share equivalent to grandson.
Apart from that after born son also get share if father has not
taken a share.
 Allotment of shares
• Partition effected between two generation as
first step-: father and son- there share will be
equal. Then between each son and his
descendants- they two will take equal share,
• If a son dies then his share will be taken by his
branch
• Between brothers also- equal share,
• Females entitled to be given share at the time
of partition.
• Example- a family has father F, his three sons S1, S2,
AND S3. S1 is unmarried. S2 have two sons SS1 and SS2.
S3 have one son and on e daughter SS and SD. When
partition takes place
• Step 1- effect partition between F and his sons – each
will take ¼ respectively
• Step 2- now for F and S1 this ¼ property is their separate
property.
• Step 3- the property received by S1 and S2 will again be
partitioned between them and their children- they take
the property as coparcenary property
• Step 4- this ¼ will be divided into three parts
for both the sons so shares
• S2- 1/12, SS2- 1/12, SS3- 1/12 as sole surviving
coparceners
• S3-1/12, SS1- 1/12 as sole surviving
coparceners whereas SD will take the property
as separate absolute property.
 RE-Opening
• CONDITIONS FOR RE-OPENING
1. More property added after partition
2. Property concealed by fraud of coparceners
3. Partition unjust and unfair for minor
Who can re-open
4. Coparceners who were part of partition
• 2. After born son- a) concieved before
partition born after- a share needs to be kept
for him
B) son concieved and born after partition- if
father gas taken share he cannot re-open
partition- if father hasn’t he can.
 GIFT
• A Hindu in all the schools of Hindu Law may dispose of by gift his separate property
subject to claims and maintenance of those whom he is legally bound to maintain.
• Three essentials required for valid gift
a) majority
b) sanity
c) free will
• Except the sole surviving coparcener no other coparcener un­der the Mitakshara
Law has a right to dispose of his coparcenary property by gift.A coparcener can
dispose of his undivided interest in the coparcenary property by a will, BUT he
CANNOT make a gift of such interest . It is said to be void. {Thamma Venkata
Subbamma Vs Thamma Ratanamma & Ors. (1987) 168 ITR 760 (SC)}
• A valid gift can be made to HUF – but HUF cannot be craeted by first time gift- there
must exist some prior JFP
• All the gifts should be in writing. For immoveable delivery not required but for
moveable delivery is mandatory
• father has the power to gift ancestral movables within reasonable
limits, he has no such power with regard to the ancestral immovable
property or coparcenary property. He can however, make a gift within
reasonable limits of ancestral immovable property for “pious purposes”.
• A property acquired on gift by the assesse with an intention of the
donor that the money should be used for the benefit of his family
is HUF property
• In any case, as held by the Supreme Court, (Ref CIT vs. Satyendra Kumar
(1998) 232 ITR 360(SC) a gift by mother also can be a source of HUF
property. In case of a gift whether from a father, mother, relative or a
friend the intention of the donor is important
• The gift of family property by Karta of an HUF to a coparceners or non-
coparceners is void ab initio & not merely voidable. {CGT Vs Tej Nath
(1972) 86 ITR 96 (P&H) (FB)}
• father has the power to gift ancestral movables within reasonable
limits, he has no such power with regard to the ancestral immovable
property or coparcenary property. He can however, make a gift within
reasonable limits of ancestral immovable property for “pious purposes”.
• A property acquired on gift by the assesse with an intention of the
donor that the money should be used for the benefit of his family
is HUF property
• In any case, as held by the Supreme Court, (Ref CIT vs. Satyendra Kumar
(1998) 232 ITR 360(SC) a gift by mother also can be a source of HUF
property. In case of a gift whether from a father, mother, relative or a
friend the intention of the donor is important
• The gift of family property by Karta of an HUF to a coparceners or non-
coparceners is void ab initio & not merely voidable. {CGT Vs Tej Nath
(1972) 86 ITR 96 (P&H) (FB)}
 WILL
Comes after testator death
Essentials:

1. Sanity
2. Majority
3. Free will
4. Of any property- moveable or immoveable
5. Written and signed by testator (according to s.57 of ISA 1925)
• Any Hindu can dispose of, by will or other testamentary disposition any
property which is capable of being so disposed of by him. (section 30
HSA, 1956)
• Any share received by the female member can only be bequeathed after
she has gotten the share. Any will made by her before partition is invalid.