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Partition's Footprints: Understanding Its Enduring Legacy And Timeless Consequences

In Hindu law, division of property into two parts is known as partition. It is divided into separate conferment of statue on undivided coparceners. Each coparceners have an equal share of the party of joint Hindu family and each of will reserves an inherent tittle of the property. And, joint family decides the partition then joint status come to an end. However, establishing a state of jointness among coparceners in a family. At least 2 or more coparceners should be present in a family.

Earlier only male decedent male member considered as a coparcener after 2005 in the Hindu succession act, women also given partition according to Amendment of 2005 in Hindu succession act.

The division of the joint property upon coparceners who inherits estate as coheir with others. For Example- 'a', 'b', and 'c' are 3 brothers in a joint family and their sons 'AX', 'by', 'CZ'. If 3 brothers partition, theirs not partitioning from them it will come into existence of 3 family consisting of 'a' and his sons 'AX', 'b' and 'by' son, 'c' and his son 'CZ'.

The common ancestor and all male lineal descendants up to any generation, common ancestor's wife and unmarried daughters of lineal male descendants makes Hindu joint family. In Hindu law, the concept of decision -making power lies to Karta. The male lineal decedents of Karta are called coparceners. A Coparceners possesses to right time ask the partition. The Karta or manger has significant role in Hindu joint family. Only coparcener has ability to become Karta.

The power of Karta under are:
  1. power of alienation of joint family property
  2. other power.
Jandhayala Sreeamma v. Krishnavenamma AIR 1957 A.P. 434 -In the case of Hindu Joint Family a suit to set aside on alienation filed by the younger of the two brothers within three years of his attaining majority would be barred by limitation if the elder brother, who was the manager and an adult has failed to sue within three years of his attaining majority.

Schools Of Laws

The concept of partition under Hindu law regulates 2 school i.e., Mitakshara and Dayabhaga. Mitakshara school is concerned, partition does not simply mean division of property into certain or specific shares amongst the coparceners, but it actually means a division of status along with severance of interest, i.e., in ancestral property, the shares of the coparceners fluctuates as per the birth and death of the coparceners, which means that whenever a birth takes place in a joint family, the shares of the coparceners decreases, whereas when the death takes place, the shares of the coparceners increases by its very nature.

Under this school of thought, property rights are created by birth, and devolution is through survivor ship. So, the partition is said to be completed once the shares are defined, and therefore it is not required that the division of property should take place via metes and bounds. Hence, under the Mitakshara school of thought, unity of ownership is considered as an essence of the coparcenary.
  1. Dayabhaga school
    Every adult coparcener reserves a right to demand partition by the physical demarcation of his shares. The undivided co-shares hold on joint family property as tenant -in- common well define shares. The son has no interest in his father's property by birth. Father has absolute power of alienation over the property. Every person passes by inheritance on his death. Any member of joint family can alienate any manner his share of undivided.
  2. Mitakshara school
    In Mitakshara school there is no demarcation of property into specific shares, and essentials of a coparceners 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. Father has restrict the power of alienation of joint family property and son.

Important Acts Of Partition

Partition Act, 1893

  • Under this act, a suit for the partition, suit for the partition appears to the court that the partition of a property can't happen or a sale of property is beneficial, court may, on the request of shareholders, direct the sale of the property and distribution.
  • The act provides any shareholders ask for leave to buy the share of parties, and the act provides for a provision which deals with the rights of members of the family at the time of partition of family property.
  • Section 9 of the Partition Act, 1893 empowers the court to distribute property among co-owners of joint family property.
  • 86th Law Commission report of the Partition Act, 1893, made suggestions to amend the act as there are gaps in the act, but the amendment is yet to be made.

Indian Succession Act, 1925

  • This deals with 2 kinds of succession: testamentary succession, where the person makes a will of property, shall succeed as per wishes after his death.
  • In the absence of a written document specifying the distribution of property, the deceased's property would be distributed in accordance with his or her personal laws. This type of succession is known as Intestate succession, and it occurs when a person dies without leaving a will.
  • The act applies to cases where no applicability of any personal law. The act is applicable to Christians for both kinds of successions - the estate and testamentary. Only testamentary succession laws apply to Buddhists as per the act.

Hindu Succession Act, 1956

  • If any person converts into another religion, they can still claim their share in ancestral property. The descendants of the converted person don't have any right over ancestral property unless Hindus at the time of succession opened.

Principle Of Partition

If property can be partitioned without destroying the value of property, then this partition has to be done, but if partition cannot be done unless the property is destroyed then the money compensation should be given.

Types Of Partition Under Hindu Law

  1. De Jure Partition:
    In an undivided -coparceners, all existing coparceners have a joint share in the property, and none of the coparceners can tell the exact amount of share that he holds in the property until the division takes place.
  2. De facto Partition:
    After the severance of Joint status or split of community interest, unity of possession, which refers to the coparceners' enjoyment of property, may continue. Although the number of shares in the property may not be specified, no coparceners waive his right to claim any property as his exclusive share

Provision Of Partition Of Property

  1. Debts: The provision for joint family debts out of joint family property and Karta can't be incurred from immoral means.
  2. Marriage expenses: Provisions should be made for expenses of unmarried daughters and sisters or for the daughters of other coparceners.
  3. Ceremony: Provisions for thread ceremony and other important ceremonies of the members of the family.
  4. Maintenance: Provisions of maintenance for classes who are not coparceners but are subject to maintenance out of the joint family property. This includes disqualified coparceners, unmarried daughters or sisters, and lunatics by birth.

Essential Of Valid Partition

Coparceners have a right to demand partition at any point of time without the consent the other coparceners. Essentials must be are-
  1. intention to separate from joint family
  2. unequivocal and unilateral declaration which conveys the intention to separate from the joint family.
  3. intention must be communicated to Karta.
  4. non-empty subsets: The subsets formed by the partition should be non-empty. In other words, there should not be any empty subset in the partition.

Person Entitles Partition Of Property

In Hindu law, coparceners of joint family are entitled to demand partition of Coparcenary property. Every Coparceners does not have an unqualified and unrestricted for enforcement of partition.

Persons who can entities partition are:

  1. Father:
    Coparceners consist of a father and his son, he has the right to bring the partition among sons. 'Patria potestas' recognized by Hindu law in which the right of a father doesn't require the consent of his son, which is binding on all the sons. Power to divide the property is given to the father working in good faith.
  2. Son, Grandfather, And Great-Grandson:
    The partition can be done without the consent of the son by the grandfather. The son can't say no to the partition. Before death, a grandfather can decide about the partition.
  3. Female Member:
    Female members comprise of the father's wife, widowed mother, and paternal grandmother. Generally, females do not have the right to ask for a partition, but they can get a share in the joint family being divided in the partition. When a partition occurs between a son and his sons, the wife will get an equal share to that of the son. Due to some reasons if the father passes away without dividing the partition, then according to the doctrine of survivorship, the entire property will be taken by the son, and the wife will not get anything. When a son and his sons divide their inheritance, the wife receives an equal share to the son. If the father dies without dividing the property for any reason, the son will inherit the entire estate, and the wife will receive nothing.
  4. Disqualified Coparcener:
    If a person is unable to enjoy and manage the property due to deformities such as blindness or lunacy, it will be considered disqualified and ineligible to receive a share during the partition in a joint family from the moment of birth. Thus, he will not be deprived of his interest.
  5. Son Born After The Partition:
    There are two types of sons born after the partition. The first is sons born or conceived after the partition. Second, sons born after the partition but fathered before it. If a son is said to be in his mother's womb, he will be treated as existing in the eyes of the law, and the partition will be reopened to receive an equal share with brothers. His father has taken his share in the inheritance of one of the hand, son begotten or born after partition.
  6. Son Of A Void Or Voidable Marriage:
    A male child born of a void or voidable marriage is considered his parents' legitimate child and inherits their separate property. They are not permitted to inherit the property of their parents' relatives. The male can be treated as a coparcener for the properties held by the father. The male child can be treated as a co-owner of the father's property. He can also request the partition after his father's death. It may include the right of a son born as an illegitimate child, but it is inferior to the rights of children born in a void marriage.
  7. Adopted Son:
    In the current scenario, an adopted son can join the joint family through valid adoption. This shift occurred following the passage of HAMA in 1956, which clarified and modified all adoption laws. After adoption, an adopted son is considered dead for the natural family and presumed to be born in the adoptive family, implying that he acquires a right by birth in joint family property from the date of adoption. As a result, he has the right to demand a partition in joint family property and an equal share to that of the adoptive father.
  8. Illegitimate Son:
    Under Hindu law, an illegitimate son's right to a share during partition is determined by the caste to which he belongs. An illegitimate son cannot inherit from his father at the moment, but he can inherit from his mother. In terms of the three castes, namely Brahmins, Kshatriyas, and Vaishyas, an illegitimate son is not considered a coparcener under it and does not have any vested interest in the joint Hindu family property, and thus he is not entitled to demand partition. He is, however, entitled to maintenance from his father's estate.

Various Modes Of Partition

  1. Partition By Father:
    Under Hindu law, father has superior power in comparison to other coparceners for rights in the property of coparceners. 'partia potestas' he can separate himself from joint family and separate each and every son including minor.
  2. Partition By Agreement:
    An agreement among the parties should be mutually agreeable terms. Moreover, the agreement should be internal amongst the family members, all the rights of coparceners should be equal to avoid mutual distribute within the specific time period. The court does not have power to intervene in joint family partition unless an agreement between parities mutual. In the case, Approva v. Ram Subba Lyer has no coparceners agree then each member will have a specific and share in the future, the joint share affected and coparcerner acquire right to separate share and use it the exclusion of others.
  3. Partition By Suit:
    The common way to separate from joint family to express the intention by filling the suit. When plaintiff expresses intention to separate in the court the joint status of the person come to an end. The court is required to decide the shares of coparceners. Minor and major both can approach to the court. Severance of status happens when a date to file a suit is filed in the court. Even, lawsuit is dismisses the split will be presumed.
  4. Partition By Conversion:
    If a Hindu is converted to another religion his status in joint Hindu family comes to an end. The members converted to the religion will lose their membership of coparcenary. The rights of other coparceners remain the same.
  5. Partition By Arbitration: An agreement is made amongst the coparceners of a joint Hindu family, an arbitrator to arbitrate is appointed to divide the property.
  6. Partition By Notice:
    The intention to separate must be clearly communicated to coparceners. So, the partition may come into effect as soon as it comes to the notice of coparcener.

    Under Hindu law, father has superior power in comparison to other coparceners for rights in the property of coparceners. 'partia potestas' he can separate himself from joint family and separate each and every son including minor.

Rights To Demand Partition:
Every coparcener of Hindu joint family is permitted to demand partition of the coparcenary.

Special Power Of Father:

The Hindu father can exercise the right of the property in distribution to coparceners. Therefore, the father can reserve his property with him or can distribute it by his own will. The father has the authority to divide the title among coparceners. But fathers have some restrictions on it.
  • He can divide the property during lifetime and by will after death. The testamentary partition takes place with the consent of all coparceners.
  • It is required that the partition of property among co-owners be equal and fair, without any discrimination or preference towards any particular co-owner. This means that if the property is to be divided among multiple sons, each son should receive an equal and fair share of the property.
If a partition is deemed to be unjust or unfair, any of the co-owners, including the sons, may challenge the partition in court and seek to have the partition reopened for the purpose of readjusting shares. The court will examine the partition and assess whether it was fair and equitable, and may order a new partition if necessary to ensure that each co-owner receives an equal and just share of the property.

Son, Grandson, And Great-Grandson:

Three linear male descendants who are of sound mind can demand partition anytime. The karta is legally bound to comply with their demand.


The following people can demand the partition: daughters, sons in mothers' women, adopted sons, born after a void or voidable marriage, illegitimate sons, etc. Case Law:
  1. Pachi krihnamma v. kumaran
    The court stated that daughter claimed equal share to son in partition. But, amendment of 2005 in Hindu Succession Act gave power to daughter to have a right to ask for partition and claim an equal share as on.
  2. Prakesh &ors v. phulavati & ors
    Bombay High Court held that holding rights under the amendment are applicable to living daughters of living coparceners on 9/9/2005, irrespective of when daughters are born. Alienation, including the partition which may have taken place before 20/12/2004, as applicable to the said date, will remain unaffected. Transactions of partition will be governed by the explanation.
  3. Danamma Suman Surpur & Anr. v. Amar & Ors
    In this case, it was held that daughters have an equal right in ancestral property, born after the enactment of the Hindu Succession Act.
  4. Nayanaben Firozkhan Pathan, Nasimbanu Firozkhan Pathan. Vs. Patel Shantaben Bhikhabhai & Others
    In this case, the Gujarat High Court, as on 26/09/2017, held that a Hindu daughter, after marrying a Muslim guy, does not lose her right to inherit property under The Hindu Succession Act. It was further observed that:
    The minor has undivided shares in the joint family of the karta of the Hindu joint family. The right to demand partition by a person, the rights of the minor, and the right of a major are similar in nature.

    Minor can reserve just like an adult- coparceners by filing a suit through guardian [guardianship act, 1956]. But if that suit is not beneficial to minor the suit can be dismissed. It's a duty of the court to give justice to the minor.

Share Of Female In Hindu Joint Family

In Hindu joint family, the allocation of share to female members in Mitakshara coparceners partition give rise after new enactment codify the law of succession, adoption and maintenance.

Section 6 provides for the retention of a coparcenary under Mitakshara school , 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

Share of partition during father's lifetime exist due to co ownership in the property of husband, wife will be allotted share, wife share is allotted a share during father's lifetime.

For the maintenance, there is no place. There is no expressed and implied provision of lifetime. Section 22 of Hindu adoption and maintenance act 1956. deals only with maintenance to devolution of property by maintenance

Grandmother right to share among grandson on partition is not affected.

Partition Of Coparceners

The intention should expresses to other coparceners. The tendency of the coparceners has to be clear with other coparceners so in future there is no clash amongst them. Once the share of the property to coparceners is allotted then joint family can't possess the property again.

In this conclusion, the Hindu law's a partition is a legal process in which coparceners take their property. While, partition under Hindu law can be done with ease. Law of partition must be recognized the right to female partition have been cases right of mothers and daughters has been discarded since ancient times. With the development in the human rights status of women has been change. Joint family property become coparceners of self-acquired property as their share.

Hindu law is developing day by day with different amendments. The loopholes was existed in 2005 amendment. One major impact of this acts it will decrease the difference between the women and man in society. woman have the right to be coparceners property, ownership etc.


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