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LAW 203 (II) - Hindu Law Law of Partition: Course Instructor - Dr. Nabaat Tasnima Mahbub

The document discusses key concepts related to partition under Hindu law, including: 1) Partition involves the intentional severance of coparcenary interests in joint family property through agreement of family members. 2) Under Dayabhaga law, each coparcener has a definite share in family property from birth, though possession is joint. Partition divides joint possession. 3) Coparcenary property is liable for partition, while separate property and certain other assets like idols are not divisible.

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262 views12 pages

LAW 203 (II) - Hindu Law Law of Partition: Course Instructor - Dr. Nabaat Tasnima Mahbub

The document discusses key concepts related to partition under Hindu law, including: 1) Partition involves the intentional severance of coparcenary interests in joint family property through agreement of family members. 2) Under Dayabhaga law, each coparcener has a definite share in family property from birth, though possession is joint. Partition divides joint possession. 3) Coparcenary property is liable for partition, while separate property and certain other assets like idols are not divisible.

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ibrahim
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LAW 203(II) – Hindu

Law
Law of Partition
Course Instructor – Dr. Nabaat Tasnima Mahbub
Meaning
• The word ‘partition’ means a division of interest or a division of
possession or both.
• Partition is the intentional severance of coparcenary interests by
members of a joint family. Partition involves the severance of
individual interest in the common property.
• The coparceners of Hindu joint family can by agreement amongst
them separate and cease to be a joint family and on separation are
entitled to partition the joint property amongst themselves.
• Partition is a new status and when it is brought about by the
consensus of the members of a coparcenary, they must intend that
their status as coparceners shall cease.
• In short, the term partition involves the severance of undivided
interests in common property.
Partition under the Dayabhaga Law
• According to Dayabhaga law, each coparcener, even whilst the family
remains undivided, has a certain definite share in the joint family
property.
• The property is held in defined share, though possession is the joint
possession of the whole family.
• Partition, according to Dayabhaga law, consists in splitting up of joint
possession, i.e., separating the shares of the coparceners and
assigning to the coparceners specific portion of the property.
Partition under the Dayabhaga Law
• Under the Dayabhaga law as well as the Mitakshara law, the true test
of partition lies in the intention of the parties to separate and the
intention may be manifested by an agreement between the
coparceners to hold and enjoy the property in defined shares as
separate owners.
• However, to constitute a partition according to Dayabhaga law, there
must be something more than such an agreement.
• So there must be a separation of shares and assignment to each
coparcener of specific portions of the joint property.
What properties are liable to partition
• Coparcenary property is liable to partition.
• Separate property cannot be the subject of partition.
• Property which by custom descends to one member of the family to
the exclusion of other members cannot be partitioned.
• Where the property is indivisible in nature, for instance, animals,
furniture etc., it may be sold and its value distributed.
• Family idols and places of worship are not divisible. They may be held
by the members by turns or the court may direct possession to be
given to the senior member with liberty to the other members to
have access to them for the purpose of worship.
Property available for partition
• What property is available for partition is to be determined by making
provision for –
• paying joint family debts out of the joint family property.
• paying personal debts of the father not tainted with immorality.
• giving maintenance of dependent female members and
disqualified heirs.
• marriage expenses of unmarried daughter.
• funeral ceremonies of the widow and mother or the last male
holder.
After giving all these, an account must be taken of the joint family in
the hands of the manager and other members of the family.
How partition may be effected
• Communication of expression of unilateral and unequivocal intention
to separate is sufficient to severe joint status.
• So the intention to separate may be evident in different ways either
by explicit declaration or by conduct of the party concerned or of the
other members of the family.
• But coupled with declaration or intention, there must be a
communication of intention to the other members of the family and
then alone a division in status would result.
How partition may be effected
• Such intention may be declared orally or in writing and may be
expressed, for instance –
• by written notice served upon the members of the family, demanding a
partition of the joint family property.
• by institution of a suit for partition.
• by agreement between coparceners to hold and enjoy the joint property in
defined shares as separate owner.
• by agreement between the coparceners whereby they appoint an arbitrator
to partition or divide property among them.
• by making an application for mutation of names to Revenue office with a
view to separate enjoyment.
Allotment of Shares

•On a partition shares are allotted according to the following


rules -
•on a partition between brothers, they all take equally.
•the share of a brother who is dead is taken by his heir.
•each branch takes per stirpes i.e. according to stock, as
regards every other branch but the members of a branch
take per capita as regards one another.
Allotment of Shares
❑ A dies leaving
❑ two sons B and C, A
❑ a grandson D by C and
❑ two grandsons F and G by a (Deceased)
predeceased son E.
❑ The property will be divided B C E
into three portions per stirpes
of which B will take ⅓, C will 1/3 1/3 (Predeceased)
take ⅓ and F and G together will 1/3
take ⅓.
❑ F and G will take per capita each D
taking 1/6. F G
❑ D takes nothing as under 1/6 1/6
Dayabhaga school sons do not
take any interest in the
ancestral property during their
father’s lifetime.
Re-opening of Partition
• Partition can be reopened on the score of mistake.
• It can also be reopened on the ground of fraud if any coparcener has
obtained an unfair advantage in the division of property upon other
coparceners.
• It is to be pointed out that at the instance of a minor coparcener, when a
partition is unjust, unfair and detrimental to the interest of the minor,
partition can be re-opened.
• But a partition is binding on the minor if done in good faith, bonafide
keeping the interest of the minor.
• A partition effected between the members of undivided family by their
own consent cannot be re-opened unless it is shown that the same is
obtained by fraud, coercion, misrepresentation or undue influence.
Re-Union
• Re-union is the act of uniting with the member or members of a joint
family from whom one separated himself.
• The reunion can take place between persons who were parties to the
original partition.
• There can be no reunion unless there is agreement between the parties to
reunite in estate with the intention to revert to their former status as
members of a joint family.
• So subsequent agreement of members of family to reunite may restore
joint status.
• Such agreement may be oral or in writing and if it is reduced to writing, it
must be registered.
• The effect of reunion is to re-admit the reunited members to their former
status as member of the joint Hindu family.

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