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Laws Regarding Partition Of Property In India

Partition in Hindu joint family is a process by which joint family status among the coparcener comes to an end. Partition is a division of that property which is held jointly by some persons, so that each person gets his share and he/she becomes owner of the share allotted to him or her.

Partition has different meaning under Mitakshara and Dayabhaga school of Law. According to Mitakshara school of Law Partition means two things, first of all partition leads to severance of joint status. Secondly Partition means the adjustment into specific shares the diverse rights of different member.

Under Mitakshara law there was division of right and division of property and under Dyabhaga school of law partition only means the division of the property in accordance with the specific shares of the coparcener. Dayabhaga school od Law was observed in Bengal and Assam, Mitakshara school of Law was observed in rest of the India.

Subject Matter Of Partition

The only property which can be divided is the coparcenery property. Coparcenery property is ancestral property. Self-acquired property of a member is not subject of partition as it belongs to the owner. Self-acquired property is owned by person hard earned more, gift or will.

Principle Of Partiton

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.

Properties Which Are Not Subject To Partition

  1. Impartible estates: Property which descends from one person to another because of some custom like Raj or principality.
  2. Dwelling house: In Ancient times Smritikars believed that dwelling house cannot be partitioned but the modern view do not believe this. Partition of dwelling house will be decreed if insisted but Court will try that dwelling house stays with one or more coparcener but if no agreement is made among them, then the dwelling house will be sold and all the proceeds of sale will be divided among the coparceners.
  3. Family shrines, temples and idols: These are neither divided nor sold. The possession is given to the senior coparcener or youngest member if this person happens to be the most religious person in the family and giving the liberty to other family members to worship at reasonable times.
  4. Property indivisible by its nature: Some properties are indivisible because of their nature like animals, furnitures, stair cases, wells, ways, passages, utensils and ornaments of a coparcener wife. These things cannot be divided unless we destroy their intrinsic value. These things should be sold and their proceeds divided among coparceners.
  5. Legislative prohibition: Legislature may also make certain properties as indivisible for some social cause like prevention of fragmentation of holdings, in such cases Court should not only see that the coparcener demanding the partition has the right to make it but it should first clear that whether partition is permitted or prohibited by the Legislature.

Person Who Are Entitled To Demand Partition

Both Mitakshara school and Dayabhaga school allows coparcener to demand partition.

The following people are entitled to demand Partition:
  1. Father: Father is not only has the power of partition but also effect the partition among the sons. Father has to act with bona fide intention and not unfair to anyone. If any unfair distribution of property or partition is done with malifide intention then the suit can be filled to open the partition.
  2. Son, Grand Son and Great-Grand Son have the right to seek Partition.
  3. Son born after Partition has also right to get share in partition. In this case partition will be reopened, so that share can be distributed to the son born after partition.
Before amendment of 2005, females were not considered as coparcener, but some females like mother and grand mother had the right to share at the time of the partition. But after the amendment of Hindu succession act 2005 females become coparcener by birth and she has same rights and liabilities as son.

Property Available For Partition After Deductions And Provisions

When the joint family property is divided all the liabilities attached to the property must be cleared:
  1. Debts: Provisions must be made for the repayment of the joint family debt from the joint family property.
  2. Maintenance: there are few members in the joint Hindu family which are not coparceners but they are entitled to be maintained and they are:
    1. Unmarried sisters till they are married.
    2. Mother, grand mother.
    3. Disqualified coparceners and their immediate dependents.
    4. Widowed daughters of the deceased coparceners.
  3. Marriage expenses: When partition Is between father and sons provisions should be made for the marriage of the unmarried daughter of the father.
  4. Performance of the ceremonies: if a partition is going on among the brothers than the provision of funeral expense has to be made for their mother and provision is to be made of other important ceremonies.

Position Of Minor Coparcener

Under Hindu Law both minor and major coparcener have same rights and both are entitled for partition. Guardian can file a suit on behalf of minor, and if any unfair partition takes place partition can be reopened.

Absent Coparcener

If any coparcener is absent at the time of partition his/her share should be kept separate. If his/her share is not kept separate then he/she can reopen the partition.

Alienee

A purchaser of coparceners interest in a sale has a right to demand partition as he steps into the shoes of the coparcener.

Partial Partition

  1. Partition is called partial as to the property when the joint family have more than one property, and one of the property is to be divided this type of partition is known as partial partition as to property.
  2. Partition is called partial as to person when only one person in the family wants to separate from the others, this is partial partition as to persons.

Modes Of Partition

Partition is the division of status, severance of joint status can be brought by in many ways and those are:
  1. Partition by father in his lifetime: If the coparcenery consists of father and sons only then father can make a partition, he can separate himself from the sons or father can also separate his sons from one another and the consent of the sons is not needed.
  2. Partition by notice: Partition requires intention to separate so it can be effected through a notice whether it is followed by a suit or not.
  3. Partition by suits: When any coparcener files a suit for partition, this amounts intention to separate and consequently severance of status comes into existence from the date the suit was instituted. A Decree is necessary for settling the distribution of share.
  4. Partition by arbitration: An Agreement between the members of the joint Hindu family in which they appoint an arbitrator to divide the property, the partition comes into existence from the day then the agreement was signed.
  5. Partition by conversion to another religion: If a Hindu who renounces his religion and embraces any non-Hindu religion than he is separated from the joint family and he loses his membership in coparcenery but his conversion does not affect others unity.
  6. Partition by special marriage: Marriage of the Hindu under special marriage act results into severance between him and the other family members.
  7. Partition by will: Section 30 of the Hindu Succession Act 1956 brought a change and now any mitakshara coparcener can make his testamentary disposition of his interest in the joint family property. A sole surviving coparcener can make a will of the whole family property, but if any coparcener comes before the death of the person who made will, then will cannot affect the interest of the newcomer.

Reopening Of Partition

The general rule is that once partition made it cannot be reopened, Manu says the shares are divided only once, there is a reason behind this rule which is after partition the coparceners hold the share exclusively. There are few exceptions to this general rule and those are:
  1. Readjustments of assets: If at the time of Partition there was bonafide mistake and this mistake led to the loss of one coparcener then the partition can be reopened to reimburse the loss.
  2. Son in womb: A son who was in the motherís womb during the partition but born after the partition is entitled to his share but if no share is reserved for him during the partition he is entitled to have the partition reopened and claim the share.
  3. Use of malpractices: A partition effected by consent of the family members cannot be opened but if you want to open it then you have to show that consent was taken by fraud and coercion, in these cases Court requires solid proof of facts.
  4. Absentee coparcener: During the partition if a coparcener is absent for any valid reason and no share is allotted to him, that person can reopen the partition.
  5. Son begotten as well as born after partition: Son born after Partition can demand re-opening of partition if his father has not held a share aside for him.
  6. Injustice to minor coparcener: When a partition is affected in Hindu undivided family and the shares divided to the minors are detrimental to their interests, then the partition can be reopened.

Reunion

It is a fact that a Hindu joint family is presumed to be joint until proved contarary. If a person separates him from the rest of the family and take his hare there is no presumption that the family in joint, so after the general partition reunion is the only way by which original joint status can be re-established.
Reunion can only take place among those members who were parties to the original partition. Under Mitakshara law reunion can only take place between father and son, between brothers.

Effects Of Reunion

Reunion brings the separated family members to their former status which is Hindu joint family and secondly property in the hands of the separated family members is thrown again in the pool of joint Hindu family. Reunion brings the family to its old status. They regain the status of the undivided coparceners.

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