The Concept Of Partition Is A Threat To Social Fabric Of India
Family is one of the main socializing institutions of the society and basis
of which is cooperation among the family members. According to Pope, “the family
is more sacred than the State.” It was pointed out by Will and Ariel Durant that
the family is nucleus of civilization. Household share a dogmatic belief in the
rules, traditional practices & custom which prescribed rules of conduct, duties
and obligations towards each other and the society. The property owned by an
individual can be classified only as ancestral or self-acquired.
The ancestral property or the joint family property is the subject matter of the
partition and is best described as passing down of the property to a Hindu
person by his three immediate ancestors, that is, father, grandfather and the
great grandfather. A Hindu Joint Family comprises of the lineal descendants and
their dependants originating from a common ancestor.
The underlying essence of a joint family is the way that it follows its
beginning back to one common ancestor and with the addition and deaths of family
members, joint families can continue till eternity. Joint family status is
ordinarily the result of birth or affiliation by adoption or marriage and need
not be linked with possession of joint family property The broad concept of
property ownership dominates the unique Hindu Joint Family system.
To explain, the court in Anurago Kuer vs Darshan Raut (1938) 40 BOMLR
758, ruled out that Partition is a matter of individual volition and reduce the
members to the position of tenant-in-common requiring only a definite,
unequivocal intention on the part of the member/s to separate and enjoy his
share in absolute severalty. The partition does not annul the family or
relations and does not disturb the right incidental to such relations, such as,
right to inherit
Argument In Favour
While examining matters like partition it is important to take broadest view of
the matter for the interest of families is and regard to considerations that
viewing it as a transaction between persons not members of the same family,
would not be considered. In simple words Partition are governed by principles
which are not applicable to dealings between strangers. After partition also the
Indian people keep intact the family attachment and live their traditional
Householders consider themselves duty bound to participate in ceremonial
celebrations like marriage, birthday, religious and other family function. Such
participation keeps the joint family feelings alive. Partition be a security
that a person inherits from his ancestors, a right from birth served later.
It be considered a gift that a Karta forwards on to his descendants. Partition
allows the members have their equal share. The comfort of jointness of a family
become home for idlers and drones as the non-earning members who lives without
exhausting themselves. While other members exhaust themselves earning for the
family some lead a life of utter lethargy. A Hindu family is presumed to be
joint in food, worship, and state. It is not favourable to large accumulation of
When one has got to share his/her income with large family, saving is not much.
The property of the family being jointly owned is occasionally allowed to go
waste. Despite the social practices that shackled women, gender neutral
inheritance law has motivated women asserting their inheritance right.
The 2005 amendment act in the Hindu succession act,1956, proclaimed daughter of
a Mitakshara Coparcener is a now a coparcener. Not being a coparcener, a woman
could not be a Karta of a Hindu Undivided Property prior to 2005 amendment.
Therefore, she stands on equal footing with the son of a coparcener and can
demand for partition and share equal to that of a son.
As the society has progressed, members determination to keep the householders
cohesive and keep up the spirit of sharing and caring alive is declining, there
is low articulate demarcation regarding ownership of a property. The underlying
scenarios that stimulate partition actions revolve around a range of possible
owner interests. Ownership of property in a tenancy in common involving
individuals with kinship relations to each other may take on many
The second, a reconcilable interest includes a co-owner or co-owners who have
different interests in disposition of the property, however they fail to reach a
series of negotiated terms that are completely satisfactory. The tension between
the relationships increases especially when question of adoptive and
illegitimate relations come into the picture.
Often it is observed that full birth relations try to dominate half blood and
uterine blood relations. Such Family conflicts may escalate physical abuse or
injury to the family members and future relationships are compromised. The most
common differences and family disputes in a family are a consequence of
inequitable distribution of wealth among family members. Householders approach
the court to obtain a decree for working out the resultant severance and
allotting definite share.
Joint family and disputes in the modern era have become an ordinary sight in the
courts of law. The ancient system generally treated property acquired by family
members as joint family property. History of India is the evidence of our old
customary practice of passing down the ancestral property to the successors, but
as the society and concept of recognition of the members of the family has
evolved so has the concept of rules of inheritance.
Just like a double-faced coin, partition has two sides. It would be
inappropriate to say that concept of partition is a threat to the social fabric
of India. The one single objective partition is to bring an end to the dispute
among the family members and to avoid any prolonged litigation which could have
been avoided in the first place. The expectation is to preserve the amity among
family members and the sanctity of the relations which the family members share.
Efforts ought to be made from the grass-root level to eliminate the difficulties
in the way of implementation of the partition law. Both the society and
legislature ought to make genuine endeavours to get positive outcomes from it.
Law Article in India
You May Like
Legal Question & Answers