PARTITION OF

PROPERTY IN A

HINDU JOINT

FAMILY.

PARAMITA NANDY B.A.LLB. (Hons.), 6th Semester. 883034. [25.03.2010]

2 | P a g e F A M I L Y L A W I I P R O J E C T : P A R T I T I O N O F P R O P E R T Y I N A J O I N T H I N D U F A M I L Y .

SCOPE:

The aim of the research has been to understand the concept of partition under Mitakshara law.

The researcher has then tried to highlight some of the general principles of the partition. The aim

has been to discuss some selective cases of persons entitled to share on partition. The objective

throughout the paper has been to pose a specific legal question and then answer it as the position

of law is as of today. The paper is therefore limited to the few preliminary issues relating to

partition and leaves out questions like restraint against partition allotment of shares and how

partition is effected. The researcher has not discussed the Dayabhaga school of Hindu law due to

the vast nature of the project topic.

RESEARCH QUESTIONS:

1. What constitutes partition?

2. What property can be partitioned?

3. Who are coparceners?

4. What is the status of third parties, women, unborn child, disabled person with regard to

Hindu law of Partition?

3 | P a g e F A M I L Y L A W I I P R O J E C T : P A R T I T I O N O F P R O P E R T Y I N A J O I N T H I N D U F A M I L Y .

RELEVANT FINDINGS.

Partition as defined by the Mitakshara is the allotment to individuals definite portions of

aggregates of wealth over which many persons have joint ownership. Under Mitakshara the

coparceners do not have a definite share and it is only on partition that a coparcener becomes

entitled to a definite share.

It is only the coparcenary property that can be subject matter of partition. Separate property

cannot be the subject of partition nor can property which by custom descends to one member of

the family to the exclusion of other members1. Coparcenary property is that property which

belongs only to the joint family as a whole. Ancestral property which is another term for the

same is property inherited by a male Hindu from his father father s father and so on. According

to the Mitakshara law the essential characteristic of ancestral property is that sons grandsons and

great grandsons of the person acquires an interest and the rights attached to such property at the

moment of their birth.

If from the very nature of things the property is not susceptible to partition then also it cannot be

partitioned. In other words if the property can be partitioned without destroying the intrinsic

value of the whole property or of the shares such partition ought to be made. If on the contrary

no partition can be made without destroying the intrinsic value of money compensation should

be given instead of the share which would fall to the plaintiff by partition.2

Thus three methods of adjustment are available:3

1) some of the properties may be enjoyed by the coparceners jointly or in turns;

1 P.C. Jain. Women s Property Rights under Traditional Hindu Law and the Hindu Succession Act 1956 Some Observations Vol. 45 (3&4) Journal of the Indian Law Institute 509 (2003).

2Paras Diwan. Partition Under Mitakshara Law .(1995) 123 CTR (Articles) 199

3 R.L. Butani. Partition of Hindu Undivided Family under Income Tax Act (2000.) 164 CTR (Articles) 63

4 | P a g e F A M I L Y L A W I I P R O J E C T : P A R T I T I O N O F P R O P E R T Y I N A J O I N T H I N D U F A M I L Y .

2) some of the properties may be allotted to the share of a coparcener and its value adjusted with

the other property allotted to the other coparceners;

3) some of the properties may be sold and their proceeds distributed to other coparceners.

Rights Of Coparceners:

Coparcenary is narrower body of persons within a joint family, and consists of father, son, son’s

son, and son’s son’s son. Like joint family, to begin with, it consists of father and his three male

lineal descendants; in its continuance the existence of the father-son relationship is not necessary.

Thus a coparcenary can consist of grandfather and grandson, of course, of uncle and nephew and

so on. The rule is that so long as one is not removed by more than four degrees from the last

holder of the property, one will be a coparcener. 4

The incidents of coparcenership are:5

1 A coparcener has an interest by birth in the joint family property;

2. Though until partition takes place this is an unpredictable and fluctuating interest which may

be enlarged by death and diminished by births in the family;

3. Every coparcener has right to be in joint possession and enjoyment of joint family property;

4. Every coparcener has a right to be maintained including a right of marriage expenses being

defrayed out of joint family funds.

5. Every coparcener is bound by the alienation made by the Karta for legal necessity or benefit of

estate and by the legitimate acts of management of the Karta;

6. Every coparcener has a right to object and challenge alienations made without his consent or

made without legal necessity; and

7. Every coparcener has a right of partition and survivorship.

4 Dr. Diwan Paras Modern Hindu Law 16th Edition, Allahabad Law Agency, Page no. 290-294

5 Ibid.

5 | P a g e F A M I L Y L A W I I P R O J E C T : P A R T I T I O N O F P R O P E R T Y I N A J O I N T H I N D U F A M I L Y .

Right to claim Partition: – Under the Hindu law6, any coparcener can make a claim for

partition.

Necessity of other coparceners to agree when a coparcener claims for a partition:- It is not

necessary that other coparceners should agree to the partition sought by one of the coparceners.

But merely because one member severs his relations with others there is no severance between

others. The other members continue to remain joint.7

Deceased coparcener:- Partition is an act effected inter vivos between the parties agreeing to

the partition. Death of partner cannot bring about an automatic partition and on such a death, the

other surviving members continue to remain joint. However under the provisions of 56 of Hindu

Succession Act 1956, there is a deemed partition for a limited purpose of determining the share

of the deceased co-parcener for the purpose of succession under the Act.

Minor’s to claim to partition:- Guardian of minor can claim partition. A reference in the above

regard can be made to the decision of the Supreme Court in the case of Apoorva Shantilal Shah

vs. CIT 8

Wife of Karta claiming partition :- As per Hindu law, the ordinary rule is that a partition can

be claimed only by a coparcener and wife not being a coparcener she cannot ask for partition.

Certain States including Maharashtra have brought amendment to the Hindu Succession Act,

1956, conferring co-parcenery rights to daughters and as such they can claim partition.

Right of sons of Karta Father in Partition: - A father in his right as patria potetas or otherwise

can effect a partition between himself and his son of the joint family property of HUF. However,

he has to allot equal shares to the sons. The father is expected to act bona fide and only aggrieved

6 Hindu Succession Act, 1956

7 CIT vs. Govindlal Mathurbhai Oza – [1982] 138 ITR 711 (Guj.) 8 [1983] 141 ITR 558 {SC}.

6 | P a g e F A M I L Y L A W I I P R O J E C T : P A R T I T I O N O F P R O P E R T Y I N A J O I N T H I N D U F A M I L Y .

party can seek relief by way of appropriate proceedings. However, till such a partition is held

invalid by a competent court, it must be held as valid.9

Property ownership received by a member on a total partition: The property received by

male member on total partition will retain its character as a joint family property.10 If he is

single, it will be HUF property on the marriage.11

Partition is not transfer:- The Supreme Court in the case of CED vs. Kanhlal Trikamlal [1976]

105 ITR 92, 101 (S. C.) observed that partition is really a process in which and by which a joint

enjoyment of the property is transformed into enjoyment in severalty. Each one of the sharers has

an antecedent title and therefore, no conveyance is involved in the process, as confirmed of new

title is not necessary. This decision is an authority for the proposition that no conveyance is

required for a partition, but not for whether there is a transfer involved in a partition.12

In the case of Kalooram Govindram vs. CIT [1965] 57 ITR 335 {S.C.), the Supreme Court did

not give any opinion as to whether a partition constitutes a transfer within the meaning of

Transfer of Property Act. But according to Andhra Pradesh High Court in the case of Dwarka

Prasad vs. CED [1968] 67 ITR 281 (AP) the Supreme Court in 57 ITR 335 has given final

authority that in partition there is no transfer.

Third party interest: A purchaser of the undivided interest of a coparcener at a sale in

execution of a decree can demand partition according to all schools. There is a conflict between

the Bombay Madras and Madhya Pradesh states on one hand and Bengal and Uttar Pradesh on

the other with regard to the position of a purchaser of the interest of a coparcener by private

9 Apporva Shantilal Shah vs. CIT [1983] 141 ITR 558 (S. C.)

10 CIT vs. Radhe Shyam Agarwal [1998] 230 ITR 21 (Pat).

11 CIT vs. Arun Kumar Jhunjhunwala and Sons [1997] 223 ITR 45.

12 Vijayan v. Sadanandan K. and another. 2009 (3) CTC 786 (SC)

7 | P a g e F A M I L Y L A W I I P R O J E C T : P A R T I T I O N O F P R O P E R T Y I N A J O I N T H I N D U F A M I L Y .

contract. According to the former the purchaser can claim partition while according to the latter

he cannot do so.13

Rights of minor coparcener: Where a suit is brought on behalf of a minor coparcener for

partition the court does not pass a decree for partition unless the partition is likely to be for the

benefit of the minor by advancing his interests or protecting them from danger.14 It may however

be noted that the minority of a coparcener is no bar to a partition between the coparceners. A

partition by agreement though entered into during the minority of the coparcener is binding on

the minor unless it is unfair or prejudicial to his interests.

Examples of situations where court may pass a decree for partition include where an adult

coparcener in possession of the family property is wasting the property or sets up an exclusive

title in himself or denies the minor s rights or declines to provide for the minor s maintenance.15

However the Supreme Court has pointed out in Kakumanu Peda Subbayya v. Kakumanu

Akkamma16 that the decree of the court merely renders the suit by the friend of the minor

effective by deciding that what the next friend had done was for the benefit of the minor. In

doing this the Court overruled various High Court cases17 which had held that the power to bring

about a division between a minor and his coparceners rests only with the court and not with any

other person. Instead the SC held that when a court decides that a suit for partition is beneficial

to the minor it does not itself being about a division in status. The court is not in the position of a

super guardian of a minor expressing on his behalf an intention to become divided. That

intention is in fact expressed by some other persons and the function which the court exercises is

13 Mulla on Hindu Law (S. A. Desai eds. 18th ed. Vol. 1 New Delhi: Butterworths 2001) at p. 579. 14 Mahadev v. Lakshman (1895) 19 Bom 99 cf. Mulla 580.

15 Ibid.

16 Chelimi Chetty v. Subbamma [1917] ILR. 41 Mad. 442, Lalta Prasad [1920] ILR. 42 All. 461, Hari Singh v. Pritam Singh AIR 1936 Lah. 504, Chhotabhai v. Dadabhai AIR 1935 Bom. 54.

17 Ibid.

8 | P a g e F A M I L Y L A W I I P R O J E C T : P A R T I T I O N O F P R O P E R T Y I N A J O I N T H I N D U F A M I L Y .

merely to decide whether that other person has acted in the best interests of the minor in

expressing on his behalf an intention to become divided .18

Illegitimate son’s right in the property: An illegitimate son of a Hindu may be a son by a

concubine. If the concubine is a dasi the son is called a dasiputra. Section 16 of Hindu Marriage

Act 1955 provides that for the positions and rights in a Hindu coparcenary of a son born of a

marriage which is void or voidable is to be deemed to be a legitimate child of parents.

The illegitimate son of a Sudra does not acquire by birth any interest in his father s estate. He

cannot therefore enforce a partition against his father in his lifetime.19 On the father s death

however he succeeds to his estate as a coparcener with the legitimate son of his father with a

right to survivorship and he is entitled to enforce a partition against the legitimate son. However

the legal status of an illegitimate son of a Sudra was first recognised in Sadu v. Baiza20 and it

was held that after the death of his father such a son along with a legitimate son succeeded as a

coparcener with right of survivorship to the property in his father’s hand he however taking only

half a share.

Disqualifications on account of disability : Before the Hindu Succession Act 1956 and the

Caste Disabilities Removal Act 1850 came into being both unchastity of a widow at the time of

her husbands death and the loss of caste or religion were valid grounds for the taking away their

entitlement to any share in the property. The Caste Disabilities Removal Act 1850 operates to

remove the disability as far as the person who is undergoing conversion to another religion or has

suffered a loss of caste is concerned21 and as far as his or her heirs are concerned the law of the

religion that the individual has converted shall apply insofar as succession is concerned.

18 Ibid.

19 Raja Jogendra v. Nityanand (1891) 18 Cal 151

20 (1880) ILR 4 Bom 37.

21 Khunni Lal v. Gobind (1911) 38 IA 87.

9 | P a g e F A M I L Y L A W I I P R O J E C T : P A R T I T I O N O F P R O P E R T Y I N A J O I N T H I N D U F A M I L Y .

The courts have also held that congenital and incurable deafness22 and blindness23 are also valid

reasons for disqualification of heirs. Along with these impotence lameness and want of any limb

which is also congenital also operate as physical disqualifications. Virulent leprosy as far as

rendering a person unfit for social intercourse also acts as a bar.24

This position has been changed by the Hindu Inheritance (Removal of Disabilities) Act 1928

which removes the bars to succession for all heirs other than those who are since birth afflicted

by either lunacy or idiocy.

Law of Partition and Status of Women: The persons who have no right to partition but who are

entitled to a share if partition takes place include father s wife mother and grandmother. No

female except those mentioned is entitled to a share on partition. Thus daughters sisters etc. are

not entitled to a share on partition. However on a partition provision must be made for their

maintenance and marriage expenses. Now let us discuss the rights of each of women separately.

The wife cannot herself demand a partition but if the husband himself separates his sons during

his lifetime or if the sons claim a partition during the father s lifetime the wife was entitled to a

share equal to that of a son.25 If there be several wives each get a share equal to that of a son. She

may either be mother or the step-mother of the sons. She can sue for her shares where there has

been a partition and she has not been assigned any share provided there was no waiver of her

rights or acquiescence on her part. For example in Radhabai v. Pandharinath26 the court held that

the wife had the right to re-open the partition there being no waiver merely by her not asking for

a share. However while reopening the value of the ornaments taken by her must be accounted

for.

22 Savitribhai v. Bhaubat AIR 1927 Bom 103.

23 Guneshwar v. Durga Prasad AIR 1917 PC 146

24 Ramabai v. Harnabai (1924) 51 IA 177.

25 Shiromani v. Hem Kumar AIR 1968 SC 1299

26 (1942) ILR Nag 534

10 | P a g e F A M I L Y L A W I I P R O J E C T : P A R T I T I O N O F P R O P E R T Y I N A J O I N T H I N D U F A M I L Y .

But there is a proviso that the wife or wives must not be in possession of stridhana property

given by the husband or by the father-in-law and that if there is stridhana then only as much

more will be allotted to her as will make her share equal to that of a son. The Mitakshara states

that at the husband s will the wife also gets a share of the family wealth but not by her own will.

The father when separating from the sons should take for each of his wives a share equal to that

of each son but it is not meant that the husband is to carve out separate portions of the joint

property and hand them over to his wives since such a procedure would be opposed to the dictum

there is no partition between husband and wife 27

CONCLUSION

Most of these principles regarding partition under Hindu law are governed by Mitakshara school

and remain more or less the same. They are based on sound logic and reasoning. The courts have

generally upheld the old principles giving suitable additions or deletions in the search of equity.

Most of these principles are based on sound logic and reasoning.

Even though women have not been granted the status of a coparcener (except for four southern

states and Maharashtra) their rights have been substantially enhanced. The first progressive

legislation passed in this regard was the Hindu Woman s Right To Property Act 1937. It arrested

the operation of survivorship against the father s undivided share in coparcenary property in

favor of the son by substituting the wife of the deceased in the place of the deceased.

One can conclude that the law is changing dynamically trying to bridge the gap between the

ancient Hindu law principles and the modern conceptions of equality and liberal discourse. The

result may sometimes be abstruse but the direction that the law is taking is right.

27 P. V. Kane Dharma Shastra (2nd ed. Vol. 3 Poona: Bhandarkar Oriental Research Institute 1973) p. 6o4.

11 | P a g e F A M I L Y L A W I I P R O J E C T : P A R T I T I O N O F P R O P E R T Y I N A J O I N T H I N D U F A M I L Y .