FAMILY LAW

(HINDU LAW)

Member 1 – HARSHITA VEERANI

Roll no. – 20191BAL0025

Member 2 – SWARNAVA PAUL

Roll no. – 20191BCL0021
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 TABLE OF CONTENTS
1. Acknowledgement
2. Synopsis
3. Literature Review
4. Research Problem
5. Research Objective
6. Research Questions
7. Hypothesis
8. Significance of the study
9. Scope and limitations of the study
10.Research methodology
11.Introduction
12.Property liable to partition
13.Properties which are not capable of division
14.Who can claim property
15. Persons entitled to share on partition
16.Kinds of partition
17.Various modes of effecting Partition
18.Reopening of Partition
19.Reunion
20.Conclusion
21.Bibliography

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 ACKNOWLEDGEMENT
we have taken efforts in preparing this Family Law research paper on the topic “Partition”.
However, it would not have been possible without the kind support and help our respected
professor and friends. I am highly indebted to professor Neha for her guidance and constant
supervision as well as for providing necessary information regarding the research paper & also
for her support in completing this paper. I would also like to express my gratitude towards my
friends and parents for their constant support.

SYNOPSIS
This research paper contains most of the information on Partition in Hindu Law. It contains
information about the kinds of partition, property liable to partition, who can claim partition,
various modes of effecting partition, reopening of partition and reunion.

LITERATURE REVIEW
For this research paper, several resources, books and journals are used which need to be assessed
or reviewed before we look into them for the purpose of our research. The literature resources
are reviewed on the basis of author’s expertise in the particular field of study (Partition) basis of
author’s opinion supported by empirical evidences, biasness of author’s perspective, etc.

RESEARCH PROBLEM
As we know, a research problem is a way of framing the question as a series of prosaic
statements i.e., the problem will provide some background and a logical flow toward the
direction of study.
Suppose, there is a partition happening which are the properties capable for division and which
are not and who can claim them.

RESEARCH OBJECTIVE
Research objective of a research paper concisely describes what a research paper is trying to
achieve.
The objective of this research paper is to analyse partition. The objective is to establish a clear
picture of this scenario and establish them with legal support.

RESEARCH QUESTIIONS
A Research question tells us the direction towards which we are going to research and the answer
to this will generally be made available through the research paper.
The Research questions of this paper are: -

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 1. Parties necessary to Partition suit and explain the persons who are entitled to sue and who
cannot be sued for partition?
2. Who are entitled to effect partition?
3. Discussing the various modes of partition?
4. Under which circumstances partition can be reopened?
5. What are the effects of partition?
HYPOTHESIS
Hypothesis is basically the supposition or proposed explanation made on the basis of
limited resources at the start of the research
Here from this research, we will get to know about the Partition, who can claim and
property liable to partition. We will also get to know about the re-opening and reunion.

SIGNIFICANCE OF THE STUDY

Significance generally is formed through the part of the introduction and provides what
benefits one will get through this study and who will be benefitted from the study.
Here, the significance of this research paper will be as such that this research paper will
provide.

SCOPE AND LIMITATIONS OF THE STUDY

This research paper deals with Partition. It analyses the reasons behind the growth of it.
Despite this, there are certain limitations to this research paper. This paper does not deal
with Partition in full details. It also might not establish legal support for the points
discussed in the research paper.

RESEARCH METHODOLOGY

 Type of Study: Explanatory Study

 Type of Research: Doctrinal Research
 Nature of Information: Primary &Secondary Information (Referred Books, Journals
&Websites)

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 INTRODUCTION
Partition is a process whereby the life of the coparcenary comes to an end. On partition, every
coparcener gets his undivided share divided by metes & bounds.
There are different rules relating to joint family and partition for Mitakshara and Dayabhaga
school of Hindu law. Under Mitakshara School partition means two things:
1) Severance of status or interest.
2) Actual division of property in accordance with shares so specified, known as partition by
metes and bound.

PROPERTY LIABLE TO PARTITION

As a general rule, the entire joint family property is subject of partition. A coparcenary property
is only a property that can be divided on partition. Separate property cannot be a subject matter
of the partition. In the same way a property, which by custom descends to one member of the
family to the exclusion of the other members is also not subject matter of partition.
Property available for partition-
In order to determine what property is available for partition, provision must first be
made for joint family debts which are payable out of the joint family property, personal debts of
the father not tainted with immortality, maintenance of dependent female members and of
disqualified heirs and for marriage expenses of unmarried daughters. Where a partition takes
place between the sons, provision must also be made for the funeral ceremonies of the widow
and mother of the last male holder.
After this an account must be taken of the joint family property in the hands of male and other
members of the family.

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 PROPERTIES WHICH ARE NOT CAPABLE OF DIVISION: -
Some properties by their very nature, incapable of division. Such properties cannot be divided.
Vijnaneshwara in his Smruti stated that water or pleaser out of it, a well cannot be divided but it
to be used by them in turns. The commonest, roads of ingress and egress to and from the house,
garden or the like are also not divisible. In the same way staircases, right to way, wells are not
divisible. The smritikars were of the view that ordinarily the dwelling house should not be
partitioned. But in Nirupama V. Baidyanath, AIR 1985, Cal. 406, it was held that modern law
does not considered this rule as sacrosanct.
The family shrines, temples and idols: - The family shrines, temples and idols
constitute such species of joint family property which can neither be divided nor sold.
The same may apply certain sentimental and rare items of property which the family
cherished and which may not be easily subject to any valuation. The courts have adopted
the following purses in respect of family shrines, temples and idols:
(a) The possession of idols or temples or shrine may be given to a coparcener with the
liberty to other coparceners to have an access to them for the purpose of worship at all
reasonable times.
(b) The Coparceners may be required to hold them in turn, for a period of tenure in
proportion to their share in property.
(c) In case the daily consists of pujarin who make a living out of offerings, the Court may
settle a scheme under which each coparcener worships and takes the offerings by turns.
Deductions and provisions- The shastrakaras have ordered that out of the joint
family properties provisions should be made for the following liabilities of the family
before division can take place-
a. Debts
b. Maintenance
c. Marriages expenses of daughters
d. Performance of certain ceremonies and rites.
A mode of taking account-
1. No coparcener is entitled to call upon the manager to account for his past dealings and
with a joint family property unless he establishes a fraud, misappropriation or improper
conversion.
2. No charge is to be made against any coparcener because a large share of joint income
was spent on his family in consequence of his having a larger family to support.
Similarly, no credit to be given to any coparcener because a smaller share of income was
spent on him and his family.

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3. A coparcener who is entirely excluded from the enjoyment of the family property is
entitled to an account of the income derived from the family property and to have a share
of the income ascertained and paid to him. In other words, he is entitled to what are
called mesne profit.

WHO CAN CLAIM PROPERTY: -

Partition means bringing the joint status to an end. One partition the joint family ceases to
be joint and nuclear families come into existence. The partition is the adjustment of
diverse rights regarding the whole by disturbing them in particular portion of the
aggregate. These are two meaning of the word “partition”.
(1) It means the adjustment into specific shares and diverse rights of different member
accruing to the whole family property.
(2) It means the severance i.e., separation of joint status with the legal consequences
resulting there from. Only coparcenary property is liable to partition. Separate or self-
acquired property is not liable for partition at all it belongs to the owner.
Any male member of Hindu joint family means coparcener has a right to partition and
he is entitled to have share. Minor coparcener also can ask for partition. No female
member has a right to claim partition. The general rule that every coparcener has a right
to claim partition except an unqualified coparcener. According to Bombay school Hindu
law son cannot claim partition against their father when his father is joint with his father
or collateral.
Who have right to partition i.e., who can claim partition?
1. Father- Under mitakshara law, father can make partition, not only among himself and
the sons but also among the sons inter se. It is the absolute right of such father and
consent of the sons is immaterial. When the father is karta i.e., parties protesta then he
can affect partition against the wishes of coparceners and without their consent, provided
father has acted bona fide.
2. Son, grandson, great-grandson- Under Mitaksharas rule, these persons have right to
claim partition. Son has an unqualified right to partition.
3. Son born after partition: - Yajnavalka said the partition should be reopened to give
share to after born son. It is a general view to reopen the partition. Manu says, “that after
born son can get share only in his father’s share.
4. Son conceived at the time partition but born after the partition: - when a
pregnancy is known, partition should be postponed. If the coparceners do not agree for
the postponement, a share be reserved for the child in womb.
5. Adopted son- adopted son has the same right of partition but when there is
subsequently born natural son then the adopted son takes lesser share. But there are
different opinions in the different schools about the share of adopted son.

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 6. Illegitimate son- He is not entitled to partition as he is not a coparcener. But he has
right of maintenance.
7. Minor coparcener- There is no distinction between minor and major coparceners and
hence can claim partition. A suit for partition may be filed on behalf of minors by his
next friend or guardian.
8. Alienee- A purchaser of a coparcener’s interest in a court sale, or in a private sale
where the coparcener has such a power (in Bombay, Madras and Madhya Pradesh he has
such a power), can demand partition as he steps into the shoes of the coparcener for the
purpose of working out his equity.
9. Absent coparcener- when coparcener is absent at the time of partition, a share has to
be reserved for him. In case no share is reserved for him, he has a right to get the partition
reopened.

PERSONS ENTITLED TO SHARE ON PARTITION: -

Person who cannot claim for partition but who are entitled to share when partition takes place.
There is a category of members of the joint family who have no right to partition but if partition
takes place, they are entitled to share.
a) Father’s wife- If a partition takes place between her husband and his son, the wife is
entitled to a share equal to the share of a son. She can hold it and enjoy it separately from
her husband. If there is more than one wife, each wife is entitled to a share equal to the
share of a son. It is immaterial that a wife has no son of her own. If no share is allowed to
her, she can get the partition re-opened. Under the Dayabhaga school, she has no such
right.
b) Mother- A widowed mother has a right to take a share equal to the share of a son if a
partition takes place among the sons. This right accrues to her only when partition by
metes and bounds is made.
Under Mitakshara school, a step-mother, even if she is childless, is entitled to share.
Mother and step- mother, each take a share equal to share of son. Under the Dayabhaga
school, a childless step-mother is not entitled to share on partition.
c) Grandmother- Under Mitaksharas school the paternal grandmother and step-
grandmother are entitled to share on partition in the following situation:
(1) When partition takes place between her grandson (son’s sons), her son being dead,
she is entitled to a share equal to the share of a grandson.
(2) When partition takes place between her son and sons of the predeceased son, she is
entitled to share equal to the share of grandson.

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(3) When partition takes place between her sons and his sons, according to the Allahabad
and Bombay high courts, she is not entitled to a share, but according to the Calcutta and
Patna High courts she is entitled to a share equal to share of a grandson.

d) Coparcener’s widow- When two or more widows succeeds to a property of their

husband each widow having a right of survivorship, either widow has the right to
partition with or without consent of the other and put an end to joint status.
e) Daughters- A daughter claims a share equal to the son in the partition.

KINDS OF PARTITION: -
1) Total partition- Total partition is the partition in respect of properties and members
both. There can be total partition anti properties and total partition as to members. Thus,
it is total partition in respect of properties and members.
Total partition in respect of members when all the members of coparcenary stand
severed. Status comes to an end. Total partition in respect of properties and members
when all the properties and all the members take apart in partition and get divided.
2) Partial partition- It is open for the parties to effect partial partition. It may be: -
(a) AS TO MEMBERS- If one of the coparcener or group of the coparceners want to
separate, they cannot impose separation on others. A coparcener can separate himself
from the others and the remaining coparceners may continue to be coparcener on to enjoy
as members of the joint family.
(b)AS TO PROPERTY- It is open to the coparceners to severe their interest in respect of
some of the property. Sometimes a partition may be partial under compulsion or
circumstances. Such will be the case when properties are in several districts. A district
court is competent to effect partition only of those properties which are within its
jurisdiction. Even sometimes partition may be partial because of the operation of the law,
prohibiting such partition, if effecting into fragmentation.

VARIOUS MODES OF EFFECTING PARTITION: -

A partition can be made by a definite, unambiguous declaration of intention by any
member to separate himself from the family. Partition may be affected by institution of a
suit. By submitting a dispute as to the division of property to arbitration or by conduct.
Following are the modes of effecting partitions-
Partition may be affected in any one of the following ways-
1. by agreement
2. by conduct,
3. by arbitration,
4. by notice,
5. by will,

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6. by apostasy,
7. marriage of a coparcener under the Special Marriage Act,
8. by institution of a suit,
9. by renunciation of share,
10. by sale by one coparcener to another,
11. by any other conduct.

1. Partition by agreement:
A partition may be affected between the parties by an agreement. The Privy Council in
Approvier V. Rama, said that intention being the real test, and agreement between the
coparceners to hold and enjoy property in defined shares as separate owners operates as a
partition although actual division of properties might not have taken place. An agreement
entered into coparcener in writing to hold the property separately. The agreement to
separate may even be oral. The true test of the partition of the property in the intention of
the members of the family to become separate owner.
2. By conduct:
The severance of status may also take place by conduct. The conduct, like. Declaration of
intention, must be unequivocal, explicit and definite. There can be numerous
circumstances from which such an inference can be drawn. For instance, separation in
food, worship, dwelling, separation enjoyment of the property, separate income and
expenditure, etc. Separation of the family can be inferred from the conduct of the parties
in a particular situation. When the members of the family actually divide the joint family
property metes and bounds, and each member is in separate possession and enjoyment of
the share allowed to him then it is said that the partition is affected by conduct.
3. By arbitration:
The coparceners or Karta appoint Arbitrator to affect the partition of coparceners and
properties. The Arbitrator divided the properties by metes and bound impartially. There
may be an agreement between the members of the joint family whereby they appoint
arbitrators for dividing joint family properties among them amounts to a severance of the
joint status of the family from the date thereof. Bombay High Court in Shantilal
Mewaram V. Munshilal Kevalram, AIR 1932, Bom. 498 it was held that where father
refers the family dispute between himself and his minor son to an arbitrator, the award of
the arbitrator directing a partition effects a severance between the father and the son from
its date. In Kamal Singh V. Sekkar Chand, AIR 1952, Cal. 447, it was held that a
reference to arbitrator for effecting partition made in behalf of his natural guardian must
be for the benefit of the minor. If not do, it will not be binding on him.
4. By notice:
The notice is generally given to a Karta of the Hindu Joint Family who is managing the
property. Even notices are also served to other coparceners if they are capable to receive
the same. A partition merely requires an intention to separate, it can therefore be affected
even by a notice, whether followed by a suit or not. This is also known as unilateral
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declaration. It is unilateral exercise of power to partition. An unambiguous and definite
expression of intention by a coparcener in partition is sufficient to bring up about a
division in status, with all the legal consequences, resulting therefrom.
5. By will:
Partition may be affected by coparcener by making a will containing a clear and
unequivocal intimation to his coparceners of his desire to severe/ separate himself from
the Joint Family.
Under certain circumstances like conversion, marrying under Special Marriage Act, a
coparcener may be compelled for partition.
6. By apostasy:
Conversion of coparcener to a non-Hindu religion that is Islam, Christianity etc. Operates
as an automatic severance of status of that member from others. But it does not amount to
severance of status of other members inter se. From the date of the conversion, he ceased
to be coparcener and therefore, loses his right of coparcenary. He is entitled to receive
share in the joint family property as it stood at the date of conversion. In Vella
Venkatsubhayya V. yell Venkataramayya 1944, Mad 33, it was held that conversion is no
bar to receive a share in the joint family property as it stood at the date of conversion. A
member of a joint family does not by his conversion forfeit his interest in the joint family
property.
7. Marriage of coparcener under the special marriage act:
Marriage of coparcener with non-Hindu under the Special Marriage Act, 1954 has the
same effect of conversion and hence, it is automatic severance of the status from the date
of marriage he ceases to be a coparcener but he is entitled to receive his share in the joint
family property as it stood at the date of marriage. In Girdharilal V. Fatechand, AIR
1955, M.B. 148, it was held that marriage under Special Marriage Act a non-Hindu
results in severance of the person from the joint family.
8. By Institution of suit:
A suit can be filed by a coparcener for partition. Suit is an unequivocal indication of his
intention to separate and therefore there is a severance of the joint status from the date of
institution of suit. The suit for partition is filed in the Competent Court to try the same.
The Court effect the partition by metes and bound by passing a decree. If the suit
property of partition consists of agricultural land, the decree is sent to the collector for
execution of the decree.
9. By renunciation of share:
Separation of a coparcener may be affected by his renunciation of his interest in the
coparcenary. Such renunciation must be in favour of all the other coparcener and it must
relate to whole joint estate. It does not affect the status of remaining coparceners who
continue to be coparceners as before.
10. Sale by one coparcener to another:
When a coparcener sells his interest in the coparcenary property, then he gets divided
from in respect of such property.
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11. By any other conduct:
A severance a joint status may result from any other act or transaction is having the effect
of defining the share of coparceners in the state.

REOPENING OF PARTITION: -
Under Hindu Law, a partition is made only once but there are some exceptions to this
rule The posthumous son can claim a re- partition and so can the heir of a disqualified
person and an absent coparcener and adopted son may claim re-opening of partition. If
the pregnancy is not known and consequently no share is reserved, then also the after-
birth son can get partition re-opened. This rule applies to a partition between father and
sons.

Son begotten and born after partition-

In this case, the Mitakshara’s general rule applies. Two situations may arise:
(a) When the father has taken or reserved a share for himself, the after born son becomes
a coparcener with his father. After the death of father, he takes not only his estate by
survivorship, but he also inherits the entire separate property of his father to the exclusion
of divided sons. But, now, after the Hindu Succession Act, 1956, the latter rule stands
abrogated, as S.8 of the Act makes no distinction between separated sons and undivided
sons in the matter of succession to the separate property of Mitakshara Hindu.
(b) When the father has not taken or reserved a share for himself the after-born son has a
right to get the partition re-opened and get the estate redistributed as it then stands. This
rule applies, like the former, to a partition between father and sons.

Adopted son- The Hindu Adoption and Maintenance Act, 1956, codifies and reforms
Hindu law of adoption. S.12 of the Act lays down that an adopted child should be deemed
to be child of his or her adoptive father or mother for all purpose. Therefore, his position
is the same as that of aurasa (natural son). Hence, an adopted son and the naturally born
son are given equal treatment in regards to partition.

Son born after partition- Among the Smritikars there has been conflict of view as to the
post Orion and rights of a son born after partition. According to Vishnu and Yajnavalkya,
the partition should be re-opened to give a share to the after born son. Gautam, Manu,
Narada and Brihaspati took the view that the after-born could get the share of his father
alone. The Mitakshara reconciled the conflict by holding that the latter texts lay down the
general, rule while the former texts lay down a particular rule applicable to a son in the
womb at the time of the partition.

Son conceived at the time of partition but born after partition- According to Mitakshara
school, if the pregnancy is known, the partition should be postponed till the child is born.

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But if the coparceners do not agree this, then share equal to the share of son should be
reserved for the child in the womb. If the child born is a son, he takes it, but if it is born a
daughter, marriage provision is made for her out of the share and surplus, if any, is
disturbed among the coparceners. In case no share is reserved for the son in the womb, he
can, after his birth, demand re-opening of the partition.

There are following grounds also for re-opening of partition: -

1. Fraud:
A partition be re-opened, if any coparcener has obtained an unfair advantage in the
division of the property by fraud upon the other coparceners. In Venkappa Bhatta V.
Gangamma, AIR 1984, Kel. 133, it was held by the court that there was an undue
influence in effecting partition and therefore. Unfair advantage in the division of the
property was taken upon the other coparceners hence, re-opening of the partition is
necessary in the interest of justice.
2. Mistake:
Where, after a partition has been made it is discovered that property allotted to one of the
coparceners did not belong to the family, but to a stranger, or that I was a subject to a
mortal age, the coparcener to whom such property has been allotted is entitled
compensation out of the shares of the coparceners, and the partition may, if necessary, be
re-opened for readjustment of the shares.
3. Where a portion of joint property was excluded from partition (readjustment. Of
excesses):
Where a portion of joint property has been excluded from the partition by mistake,
accident or fraud, such portion continues to be the property to the family and it must be
divided among the persons who took under the partition. It is not necessary that in such a
case to reopen such a partition.
It is also possible that some properties may be recovered later on, or there may be some
property whose distribution has be postponed because it was in the possession of third
person, such properties can be partitioned by the process of readjustment. If the re-
adjustment is not possible. A partition may be re-opened.

4. Reopening of partition at the instance of minor- Supreme Court in Ratnam

Chettiar V. kuppuswami, AIR 1976, Supreme Court 1, has clearly summarized the
law regarding reopening of partition at the instance of minor which reads as under:
-
a. Where the partition is affected between members of the family, which includes minor’s
coparceners is binding on the minors also if it is done in good faith, in bona fide manner,
keeping into account the interest of minors.
b. Where, however, a partition is proved to be unjust and unfair and is detrimental to the
interest of the minors the partition can be reopened at any time. In such a case, it is duty

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of the court to protect the interest of the minors. The onus of proof that partition was just
and fair is on the party supporting the partition.
c. Where there is a partition of immovable and movable properties and the two
transaction sare distinct and separable or have place at different times, it is open to be the
Court to maintain that which is just and fair and reopen only that which is unjust and
unfair.

REUNION: -
Reunion is the process of reuniting after partition. Brihaspati- “he who, being once
separated dwells again through affection, with father, brother or a paternal uncle. Is
termed reunited with him”.
According to Mitakshara- “Effects, which have been divided and which are again mixed
together, are termed reunited”.
According to Dayabhaga- “A reunion is valid only with a father, brother or paternal
uncle”.
For reunion, two condition must be satisfied: -
1. A reunion can be made only between the parties to partition, and,
2. A reunion can take place only between:
(a) Father and son,
(b) Paternal uncle and nephew, and,
(c) Between brothers
Thus, reunion can take place between any person who were parties to the original
partition. It has been held by the Nagpur High Court Bench, in Nanuram V. Radhabai,
AIR 1940, Nag 21, that only male can be reunioned.
According to Mitakshara, Dayabhaga and Smriti Chandrika, (madras school) a
member of a joint family once separated can reunite only with his father, brother or
paternal uncle, but not with any other relation. According to Vivada Chintamani (Mithila
school) which is the paramount authority in Gujarat, a person may reunite with any
relation who was party to the original partition.
No writing is necessary for a reunion. Even persons who are parties to registered deed a
partition may reunite by oral agreement.

Effect of reunion-
There has been controversy whether the effect of reunion is to restore the parties to the
original position or whether it merely establishes unity of possession, the severance of the
status continuing. It is, now, an established view both under the Mitakshara and
Dayabhaga schools that after reunion status quo ante is fully restored. Under the
Mitakshara school both the community of interest and unity of possession are established.
A full Bench of the Madras High Court is Krishraya V. Venkatromiah 1909, 19 MLJ 723
held that reunited coparceners are not tenants-in- common, but are coparceners with

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rights of survivorship, inter se, and that their sons shall be deemed to be coparceners with
them. The descendants of the reunited coparceners, born after the reunion, are also full-
fledged members of the reunited family.
The effect of a reunion to remit the reunited members to their former status as
members of a joint Hindu Family.
Intention necessary to constitute reunion or reunion how effected-
To constitute a reunion, there must be an intention of the parties to reunite in estate and
interest. In Bhagwan Dayal V. Reoti Devi, AIR 1962, S.C. 287, held that it is implicit in
the concept of a reunion that thee shall be an agreement between the parties to reunite in
estate with intention to revert to their former status. Such an agreement may be expressed
or may be implied for the conduct of the parties. When a reunion is attempted to be
established by implied agreements the conduct must be of an incontrovertible character
and the burden lies heavily on the person who asserts reunions the mere fact that parties
who have separated, live together or trade together after the partition is not enough to
establish reunion. The burden of proof whether reunion has taken place is in the person
who alleges reunion. The possession of joint family property at the time of the reunion is
not necessary.

CONCLUSION: -
Partition is a process whereby the life of coparcenary comes to an end. On partition,
every coparcener gets his undivided share divided by metes and bounds. The entire joint
family property is subject of partition. There are various persons who can claim partition
and share on partition. There are various modes of effecting partition. Under Hindu Law
there is a provision for reopening of partition. Moreover, there is a process of reunion
even after partition between any person who were parties to original partition.

BIBLIOGRAPHY

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1. http://www.legalserviceindia.com/legal/article-3273-laws-regarding-partition-of-
property-in-india.html
2. https://blog.ipleaders.in/partition-under-hindu-law/amp/
3. https://www.researchgate.net
4. https://indiankanoon.org
5. Wikipedia
6. Family law I by kusum (lexis nexis)

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