Part A

Answer any 5 questions in not less than 50 words. Each question will carry 2 marks

1. Rights of coparceners
Coparceners have the following Rights
● Maintenance:
Everyone has the right to maintenance in a shared family property. Female members, those
who are disqualified from receiving a share of the family's income, and unmarried daughters
will all receive maintenance from the Joint family.

● Challenge Allination:
The right to oppose alienation refers to the transfer of property for any legal reason or for the
benefit of the estate. The coparcener, Karta, and single living coparcener have the right to
alienate the property in order to settle family debts or to meet any other legal requirement of
the Joint family.

● Partition:
The property will be forfeited if the above-mentioned person alienates it with unlawful intent
or without justification.

2. Coparcenary within coparcenary :-

There can be coparcenary within coparcenary. In a leading case of Nachiappa vs
commissioner, of Income Tax the Madras High Court has Illustrator a beautiful example of
coparcenary. During the time of income tax assessment, the income tax authorities assessed
son A and father B as separate entities. The court held that there is coparcenary within
coparcenary. That is why they were assessed separately. After some time the son united with
the father and gave a suit against the assessment of income tax authorities and told that they
are the same entity, but the court held that that is not true and they still are separate entities
and will be assessed separately. One of the major confusions came in the property of Hindu
Undivivded family is the field of taxing.

In the case of Narendra Nath vs commissioner of wealth tax define Hindu undivided
family as a male and his wife. It is not defined as two males and two wives. This confusion
came because Hindu undivided family share their properties and they paid tax for the share
property, so the tax authorities got clarified from the court.

In the case of Commissioner of Income Tax versus Gomedalli Lakshmi Narayan there
was a confusion in how Hindu joint family can be assessed for tax. There was a father and his
wife and his son. Income tax department had a confusion whether father and son are two
separate entities to pay tax. It was held that the son’s right over the property was not absolute
because to females in the family had a right of maintenance to the property. So the income of
the assasee should be attached as a single Hindu undivided family.

3. Joint family property and Separate Property :-

According to Article 220 of Hindu Law, Property is classified into two types: (1) Joint Hindu
Family Property (2) Separate Property.

Joint-family Property is also known as ‘Coparcenary Property and this property consists of
(a) Ancestral Property (b) Property jointly acquired by the members of the Joint family. (c)
Separate property of a member “thrown into the common stock.” (d) Property acquired by all
or any of the coparcener with the aid of joint family funds.
Whenever the head male member of a family purchases a property with the use of money
which he got by selling something which is jointly owned by every coparcener then that
purchased property becomes joint family property.

Any property which is not a part of joint family property is a self-acquired property. This
word separate here suggest that the property was once a joint family property but now has
been severed and is now separate. Thus this property would be considered as a separate
property in relation to the brother of the person who holds that property and still joint family
property in terms of his sons. This also means that no other person has any self-interest in the
property.

The property acquired by any of the following mentioned manners can be classified as a
separate property:
1. The property which person acquired by his own efforts and no other family member helps
him. It is not a result of joint family efforts and hence it is not a part of joint family property.
When the property is in possession of a property for more than 12 years.

2. Property acquired by a person other than his father, grandfather or great grandfather would
be termed as his own and not anyone’s.
Any property acquired by a Hindu after the partition of joint property is severed would be
classified as his own property.

4. Any property which is devolved to a sole coparcener will be a self-made property as there
exists no other coparcener.

5. Property which is obtained by a person as a gift from his father, or grandfather or great
grandfather will also be counted as separate property.
Property obtained by a Hindu as a grant of government will be termed as a property which
has not been borrowed from ancestors.

7. When a joint family is lost and is again gained by a person of the family without the help
of any family funds will be classified as a type of property which he has earned on his own.

4. Obstructed and unobstructed property

Apratibandha Daya (unobstructed heritage) property inherit from direct male ancestor but
not exceeding three degree who is higher than him. Under the concept heritage is devolved by
survivorship. The essential feature of unobstructed heritage, according to Mitakshara Law is
that the sons, grandsons and great grandsons acquire an inherit in the property inherited by
birth. Their rights attach to it by their birth as in case of Radha v Ram[3] it was held that the
property can be acquired by son and sons son by the interest of birth. The property is called
unobstructed because the accrual of the right to it is not obstructed by the existence of the
owner.

Thus, if A inherits property from his father or grandfather or great grandfather it is ancestral
property or unobstructed heritage in the hands of A as regards the male issue because the
existence of A an obstruction to his son acquiring an interest but as regards other relations he
hold it as his absolute property. If A has not male issue, other relation has no interest in the
property during the life-time of A.

Sapratibandha Daya (Obstructed Heritage) property inherited from any other relations i.e.
paternal uncle or brother, nephew etc., under this its devolved by inheritance. It is called
obstructed because the accrual of the rights to it is obstructed by the existence of the owner.
The owner holds it as his separate and absolute property. The relations of the owner do not
take a vested interest in it by birth. They are entitled to it only on the death of the owner. Thus
the property which devolves on parents, brothers, uncles, nephews, etc. on the death of the
last owner is obstructed heritage.

● Obstructed heritage devolves by succession except in the following cases in which it

passes by survivorship.
● Two or more sons, grandsons and great grandsons succeeding as heirs to the separate
property of their paternal ancestor take as joint tenants with rights or survivorship.
● Two or more grandsons by a daughter who are living as members of a joint family
succeeding as heirs to their maternal grandfather take as joint tenants with rights of
survivorship.
● Two or more widows succeeding as heirs to their husband take as joint tenants with
survivorship rights.
● Two or more daughters succeeding as heirs to their father take as joint, tenants. But in
the Bombay State, they take absolute estate in severalty.
The Mitakshara Law recognizes the distinction between obstructed and unobstructed
heritage, but under Dayabhaga Law. Every kind of heritage is obstructed and it does not
recognize any such distinction because according to Bengal School no person at all acquires
any interest by birth in the property of another and the rule of survivorship does not apply to
this school.

5. Pious obligation of son

In the Hindu Undivided Family, male members are of priority when it comes to carrying out
the duties and obligations of the Karta. After the death of the Karta, the male member second
to the Karta, either a male relative or the eldest son, takes over the business.
The history behind the creation of this principle can again be traced back to the traditional
Hindu Laws under which the business has come into existence. The Hindu law says that
whatever the father was unable to repay during his lifetime, shall be fulfilled by his sons
equally and if they were to separate, they shall still complete the duty according to their
respective divided shares. In this manner, neither is the obligation left undone nor are the sons
overburdened with excessive obligations.

On these terms considering the Karta is the Father, the son has various pious obligations, the
most important being discharging his father’s debts unless the debts are illegal in nature. Lord
Dunedin had given his decision on the question of at what stage can a debt be considered as
illegal. He has said that any debt can only be considered illegal when the entire motive for
obtaining the money was illegal and not if the father had legally obtained the sum but
afterwards misappropriated it. Thus, for a debt to be considered illegal to enable the
exoneration from fulfilling its repayment, two conditions have to be met with:

The debt must be prior in time.

The debt must be prior in fact.
Another point to be noted is that, for the acquittal of the son from repaying his father’s debts,
it is not necessary that the debt has to be illegal only. It could be obtained through immorality
or dishonesty and still would be considered a valid ground for the son’s relief.
In a nutshell, once the son takes over the family as the Karta, he has to fulfil all of his father’s
incomplete obligations as well as perform the duties expected from a Karta and enjoy the
powers conferred upon him unless corrupted by any kind of immoral, unlawful or dishonest
conduct.

6. Immoral (avyavaharika) debt

A debt when not acquired morally and legally is said to be “Avyavaharika” and this relieve
the son from paying off the debt after his father. This doesn’t cover only illegal or Immoral
debts, but also what court regards as unjust and unequitable.

The term ‘Avyavaharika’ means which is not lawful, moral and not admissible in the law
under normal circumstances. Colebrook translated the term as “a debt for a cause repugnant
to good morals”, and this definition was approved by the Privy Council in S.M. Jakati v. S.M.
Bokar (A.I.R. 1959 S.C. 282), as being the nearest approach to the true conception of the
term used in the Smritis.
Avyavaharika debt includes losses at play, promise under influence of lust, alcoholic drinks
etc.
Raghothaman v. Kannappan (AIR 1982 Mad 235)

This case held that son is not liable for any post- partition debt but for only that was taken
pre- partition
The term ‘Avyavaharika debt’ is explained in a judgement of Supreme Court that is S.M.
Jakati and Ors. Vs. S.M. Borkar and Ors. (AIR 1959 SC 282).

Time barred debts

Under the modern Hindu law, without any existence of promissory note claiming the son to
pay off the debt , there is no obligation on the son for the time- barred debt.
Time barred debt is not considered as ‘Avyavaharika’.

7. Antecedent debt
The term ‘Avyavaharika debt’ is explained in a judgement of Supreme Court that is S.M.
Jakati and Ors. Vs. S.M. Borkar and Ors. (AIR 1959 SC 282).
Antecedent debts refer to the legal obligation of paying debts prior to the time. The doctrine
of pious obligation is further extended by laying down that the father himself can alienate the
joint property for the discharge of his personal debts or any legal necessity and the sons can
challenge it if the debt is tainted. The sons under the pious obligation are expected to pay the
debts from the ancestral property which they have inherited but the other way to pay off such
debts can be payment of debts from the ancestral property by father himself Which means the
liability to pay off debts of father is on sons, irrespective of the fact that father is alive or
dead.

Lord Dunedin of the Privy Council defined the antecedent debts. The two mandatory
conditions for the antecedent debts are:
1. The debt must be prior in time –
It means that in point of time the debt must precede the alienation. For instance, the debt is
taken on 19th October 2000 and the alienation of the property has taken place on 19th
September 2001 then it is a valid condition, as debt if taken first and the alienation is made
after it

2. The debt must be prior in fact –

It means that the alienation and debt should not be a part of same transaction, there should be
two independent and separate transactions for alienation and debt.

In the case of Prasad and others vs. govindaswami Mudaliar and other, Hon’ble Supreme
Court held that if the father pays off his any debt from the joint family property, he is legally
bound to that and the same is binding on the sons. But the said thing applies when the two
given conditions would fulfill:-

1. The debt was antecedent to the alienation and,

2. It was not incurred for an immoral purpose.

Thus the doctrine empowers the father to alienate the joint family property in order to pay off
his debts which are taken for moral cause before the alienation in time and fact.

8. Modes of Partition
Partition i.e. severance of joint status of a family can be established in the following ways-

● expression of intention- one member of the joint family can express his intention to
partition, even though no actual partition takes place.
● by Notice
● by Will
● by agreement- such severance of status takes place from the date of signing of the
agreement.
● by arbitration- if the members of the joint hindu family come into an agreement where
they appoint arbitrators for themselves to divide the property, the partition comes into
existence from the day the agreement was signed.
● by father- the karta of the family if expresses his wish to seek partition, such partition
comes into existence.
 ● by suit- when a coparcener files a suit for partition, it amounts to an unequivocal
intimation of an intention to sever and consequently, severance of status comes into
existence from the date the suit was instituted.
● Conversion to another Religion- this leads to automatic severance of status, and it
exists from the day of such conversion. However, he is entitled to receive a share from
the property.
● Marriage under special marriage act- if a coparcener marries according to the
provisions of special marriage act, 1954 severance of status occurs automatically from
the date of marriage and the coparcener is entitled to receive his/her share from the
property.
9. Re-opening of partition
In a coparcenary, the coparceners hold the property as one common unit, partition means the
fixing of the shares of each coparcener.the partition can be classified into two types-

De jure Partition
This partition brings merely the severance of status or interest. This happens when the
community of interest is broken, either at the instance of one of the coparcener or by the
agreement of all the coparceners. In such a partition, the shares become clearly demarcated
and are no longer fluctuating. However actual partition does not take place.

De facto Partition
This is a partition by metes and bounds. This happens when the unity of possession is broken.
It is only after the de facto partition, the respective shares of the coparceners become their
exclusive shares. Here the actual division of shares takes place.

When can partition be reopened

Generally, partition once made is irrevocable, however, the same can be reopened in case of
following circumstances –

● Mistake- a suit can be filed, if any of the joint family properties have been left out of
partition by mistake they can be subjected to partition later.
● Fraud-The partition can be reopened if any of the coparceners had done any
fraudulent or mala fide act. For example, if any of the property has not been made
subject to partition fraudulently.
 ● Disqualified Coparcener-Due to some reasons, the disqualified coparcener might be
underprivileged from his share of the property at the time of partition. In such a
situation, he could get the partition removed after the disqualification is removed.
● Son in Womb-If a son is in the Womb at the time of partition, and no share was
allotted to him, at the time of partition then later it can be reopened.
● Adopted Son-The adopted son is permitted to re-open the partition in case if the
widow of a coparcener adopted a son after the partition. Such adoption under the
Hindu Adoptions and Maintenance Act 1956 related back to the date of death of
deceased husband & such adopted son can reopen partition.
● Absent Coparcener-Coparcener who is not present at the time of partition has a right
to reopen the partition if he is absent at the time of partition and no share is allotted to
him.
● Minor Coparcener-If a minor coparcener can claim for reopening the partition if he is
not alloted his share at the time of partition, after attaining majority. If at the time of
partition his interests are not be properly safeguarded then he can reopen the partition.
● A partition can be reopened at the request of minor coparcener even if there is no
fraud, misrepresen­tation or any undue influence.

10. Re Union
A text, of Brihaspati, being a leading text states that “He who, being once separated dwells
again through affection with father, brother or paternal uncle, is termed reunited with him.”
According to Mitakshara and Dayabhaga, the reunion cannot take place with any person other
than the father, brother or paternal uncle.
Who can Reunite?
Any person who was a coparcener originally in the joint status of the family can be part of the
reunion. Reunification takes place by the virtue of Hindu Succession Act, 1956.

Following are the conditions for the parties to reunite:

● A partition is an essential condition for a reunion- No reunion can take place if there
was no partition in the first place.
● The intention to reunite in any case is an essential factor which must not be
overlooked. Reunion shall not take place if there is no intention of the parties to
reunite. Such intention to reunite must be communicated clearly. Where a person
 merely live together without having an intention to reunite, it is necessary to note that
such a person shall also not constitute to be a part of the reunion.
● The reunion can take place only if the person has separated with his father, brother or
paternal uncle but not with anyone else other than them, which is the case of
Mitakshara but in the Mithila school, it can be with anyone, provided that they are a
part of the original partition that had taken place and thus have the shares,
individually under their name.
● The reunion must be unilateral, i.e. there must be consent of each and every person
who is a coparcener. The consent of the parties or the coparceners, shall not constitute
to be formal agreements but merely consensual agreements which may be either oral
or written or even by their conduct, depicting their agreements which are not
mandatory to be registered.
● The reunion must be of effect only by the parties, who had been a part of the partition.
● There must be a property involved in the case of the reunion; as reunion does not
merely mean living together as tenants.
● A minor cannot reunite, as he is not a competent party to the contracts. The minor
cannot be a party, either on his own or as someone on behalf of him.
● The rules which are special for the inheritance will not take place in the reunited
property but will only be applicable in case of the separate property which the
reunited person holds.
The intention of the reunion is to bring about the amalgamation of the interests of the parties
in the Hindu Undivided Family and therefore, it creates a right on all the parties involved. In
the case of reunion, it is possible that some of the properties and some of the people involved
in the partition may be left out or choose not to be a part of the reunion at all. This means that
there is a chance of a partial reunion. Therefore, the interest has to be clearly established.

Part B
Answer any 2 questions. Each question will carry 5 marks

1. Explain about the 'Characteristic Features of Joint family, Coparcenary & Rights of
coparceners'
Introduction
The term coparcenary was derived from the Hindu Undivided Family (HUF). Coparcenary is
the division of property between the co-owners or joint owners who have inheritance to the
Hindu joint family. The head of the coparcenary is called as the Karta.
Hindu joint family was defined in a case of Rajgopal v Padmini according to this case if two
or more families agree to live together by sharing their food, water resources etc and comes
under a roof it will come under Hindu joint family.

In another case of Ram Kumar v Commr. Income Tax it was observed that Hindu joint
family is considered as a unit and it is headed by a person called as karta. Karta is a very
important person in the Hindu undivided family he is denoted As a manager of the family.
The position of karta is known as Sui generis. This means he holds a unique position in the
Hindu family property.

There can be more than one person as karta in a Hindu family. He can be any senior member
or any person who is apt to manage the whole family. His main duty is to represent his family
members or act behalf of the family. The females are dependent on the karta of the joint
family. Minors are also dependent on the karta. They all are dependent on karta for the
maintenance. If the Karta failed to give maintenance to unmarried daughter in the joint
family, he will not be eligible to call as karta. The powers of karta changes at any point of
time.

Karta can also be changed in a joint family. Karta has certain rights in the joint family
property other than the other members of the family. He has the power to manage the whole
property and the family members. He have to contract Dept. He can manage or take loans
from other people if there is a need for the family. He has the power to represent the family in
the case of legal aspects or for other concerns.

The Karta has the power to represent the whole family. He has the power to enter into
contracts for the benefit of family and he should look after the family and does not have any
evil intention. He has the power to refer disputes to arbitration if there is any dispute among
the family members. He has the power to acknowledge the family members about the
situations in the coparcenary. He even has the power to alienate the property of the joint
family if there is any need like paying back of debt which was taken for the purpose of joint
family.
Formation of Coparcenary – Under Mitakshara and Dayabhaga
There are two main schools in the coparcenary. They are Mithakshara and Dayabagga school.
In mithakshara school right to ancestral property arises by birth. In mithakshara school the
property can be partitioned. The son becomes the co-owner of the property sharing similar
rights as to father. The father does not have a right to alienate property. There is survivorship
in mithakshara school. In dayabhaga school the right to ancestral property only arises after
the death of the last owner. The father has a right to alienate the property in dayabhaga
school. There is succession in this school. There are two types of inheritance in mithakshara
school. They are apratibandhadaya which means property inherited from direct male
ancestors like father, father’s father etc. There is also Sapratibandhadaya which means
property inherited from paternal uncle, bother and others etc.

Coparcenary and joint Family

There are some basic differences between joint family and coparcenary. In joint family both
males and females are the members of joint family but in coparcenary only male members are
the members of coparcenary. There is no limitation of generation with regard to the
membership of joint family but in coparcenary up to 4 degree of generation from the senior
most male members are members of coparcenary. Coparcenary is a very narrow body, and it
includes only those persons who acquire right by birth and in exceptional cases adoptions.
Every joint family is not a coparcenary, but every joint family will be a coparcenary. Joint
family will be there even after the death of the Karta, but coparcenary comes to an end in the
death of the last coparcener. In one of the leading cases of Appaji versus Ramachandra[3] the
Bombay High Court held that it is one important exception to the above given case that is the
father in the joint family is not agreeing for partition then son cannot impose a partition
against the will of the father. This means that junior member cannot execute a partition
without his parents’ permission and interest of others.
Rights of coparceners
There are several rights and duties for each coparcener. The property of coparcener is of
mutual interest and no one has an exclusive possession right. Everyone will share income and
there will be a joint family and is entitled to join possession and enjoyment of family
property. If anyone is excluded from doing so, he can enforce his right by going to court of
law. Everyone is having a right to maintenance and other necessary expenses in a
coparcenary and every coparcener have a right to restrain in property alienation by the katha
or any member of the coparcenary. In any case coparceners can partition coparcenary
property.

In the case of Commissioner of Gift-tax v. N.S. Getty Chettiar it was given that the
individuals in the coparcenary will not have a right to sell any share of the joint family. If
they need to sell it they need to first partition the property and then they have to sell this. This
is because the property belongs to all people in that coparcenary and share of a coparcener is
not specified before partition. In the present coparcenary women can become Kartha and lead
and manage the coparceners.
In the case of Pandurang v. Pandurang it was observed that women can also become kartha
and lead the family. It gives power to women in the absence of men in the joint family. In the
case of Prakash and Others vs. Phulavati[6] there was a classic decision to the women’s
property rights. The Supreme Court held that women will not succeed the property from the
past coparcenary and there is no retrospective effect for the succession in the coparcenary.
This means that only women who were alive after before their father died has the property
rights. Later this decision was changed, and new amendment were brought to have a
prospective effect to the system and people doesn’t have to look when the amendments came
into force.

Coparcenery within Coparcenary

There can be coparcenary within coparcenary. In a leading case of Nachiappa vs
commissioner, of Income Tax the Madras High Court has Illustrator a beautiful example of
coparcenary. During the time of income tax assessment, the income tax authorities assessed
son A and father B as separate entities. The court held that there is coparcenary within
coparcenary. That is why they were assessed separately. After some time the son united with
the father and gave a suit against the assessment of income tax authorities and told that they
are the same entity, but the court held that that is not true and they still are separate entities
and will be assessed separately. One of the major confusions came in the property of Hindu
Undivivded family is the field of taxing.

In the case of Narendra Nath vs commissioner of wealth tax define Hindu undivided
family as a male and his wife. It is not defined as two males and two wives. This confusion
came because Hindu undivided family share their properties and they paid tax for the share
property, so the tax authorities got clarified from the court.
In the case of Commissioner of Income Tax versus Gomedalli Lakshmi Narayan[8] there was
a confusion in how Hindu joint family can be assessed for tax. There was a father and his
wife and his son. Income tax department had a confusion whether father and son are two
separate entities to pay tax. It was held that the son’s right over the property was not absolute
because to females in the family had a right of maintenance to the property. So the income of
the assasee should be attached as a single Hindu undivided family.

Evolution of Coparcenary
There have been drastic changes happened in the coparcenary system. There has been
inclusion of daughter in mithakshara school. According to the 2005 Hindu Succession
Amendment Act and a daughter can be a coparcener of a coparcenary. Property right to
women is a drastic change in the coparcenary system and the Hindu succussion. There are
also constitutional provisions upholding women’s property right like the Article 14,15 and 16
of the Indian Constitution.

Section 6 of the Hindu Succession act was the first step of women’s right. It stated that “on
and from the commencement” of the Amendment Act, 2005, the daughter of a coparcener
shall have a right on the coparcenary property by birth, just the way that it is with the son.
The daughter also shall have the same liabilities as the son does. This concept is termed as
“unobstructed heritage”. The daughters now have the right to inherit property. It is like a son
that the coparcener should be born like a son in the family.

A daughter can do whatever with her share and the men will not come into managing their
property. If a female dies then her children will inherit the property rather than the lineage of
the husband. There was a cancellation of succession as per survivorship and there came a
succussion of testamentary succession and intestate succession. Hindu Succussion Act
became more gender neutral and brought many changes, but it still didn’t give exclusive right
to women but later 2005 amendment introduced . This amendment became a pillar in
upholding the constitutional principles and India became a more welfare state.

2. Discuss about 'Partition and Reunion under Hindu Law'.

Meaning of Partition
The word partition or division legally means a division of interest or a division of possession
or both. Any division of property between co-owners, resulting in individual ownership of the
interests of each, is called a partition. On partition, the joint status comes to an end, giving
existence to nuclear families or different joint families. There are two types of members of
the joint family. Members of the joint family can seek partition and are entitled to a share.
The members of the joint family who have no right to partition are entitled to share if
partition takes place.

Voluntary or Compulsory Partition

Partition may be either voluntary or compulsory. Voluntary partition is when all owners agree
to divide the property themselves. In such a case, each co-owner owns a part of the property
and ceases to have an undivided interest in the whole. When the co-owners cannot agree to a
voluntary partition, a suit has to be instituted to compel the partition to sever property
interests. In such a case, the partition must be made even if every other owner objects to it. A
tenant in common or a joint tenant has the absolute right to seek a compulsory partition.

Total or Partial Partition

Under Hindu law, a partition can be done either in total or partial. In the case of total
partition, all the members cease to be members of the HUF, and all the properties cease to be
properties belonging to the said HUF It is to be noted that partial partition may be partial,
vis-a-vis properties and members both. In the case of partial partition, some of the members
go out on partition and other members continue to be the members of the family (HUF). It
may be partial where some of the properties are divided among the members and other
properties continue to be HUF properties also.
According to the Mithakshara school. partition is the ascertainment of individual rights in a
joint family. The interest of the coparcener is not a definite interest until a partition takes
place. The coparcener should not be able to alienate his share till partition. A coparcener
cannot validly dispose of his coparcenary interest by will except when he is the sole surviving
coparcener. A Mithakshara coparcener may wish to execute a will. He may desire to prevent
the operation of the rule of survivorship. So on his death, his interest in the family property
might devolve on his own heirs. The easy way of getting divided from the joint family is a
unilateral declaration of division in status. It has been clarified in the following case.

Ragbavamma v. Chenchamma [AIR 1964 SC 136]

There were two coparceners A and his brother’s son B. A executed a will. He declared that he
had resolved to become separated from B. A sent a written notice to B to become separate
was mentioned. But 4 died before B received his notice The legatees under the will claimed
the property. This claim was resisted by B. B contented that by the rule of survivorship, he
was entitled to the property The question was whether the will executed by A was effective.
It would be effective only if before his death, A had become divided in status.

When it is communicated, it becomes effective with retrospective effect. It means, from the
date the intention was manifested There is no division in status, if he dies before the intention
is communicated In this case, he did not die as a divided member. This rule of survivorship
operated. Hence, his will was ineffective In the case of a minor coparcener. his guardian may
make the unilateral declaration on behalf of the minor. However, it is for the Court to
determine whether it was beneficial to the minor or not.
Notional Partition
According to Section 6 of the Hindu Succession Act. 1956, where a Hindu male dies intestate
on or after 17th June 1956. having at the time of his death an interest in a Mitakshara
coparcenary property leaving behind a female heir of the class-l category, then his interest in
the coparcenary property shall devolve by succession under that Act and not by survivorship.
The interest of the deceased will be carved out for devolution as if a notional partition had
taken place before the death of the deceased. This is the concept of notional partition

What is the Effect of Partition?

Once the partition is over, the joint status of the undivided family comes to an end and it
gives existence to nuclear families or different joint families. The effect of the partition
depends upon the nature of the partition.

Effects of Partition
The effect of partition can be discussed under two heads:

1. Partial partition and

2. Total partition.
The divided coparceners become absolute owners of their respective properties, They will
have the full power of alienation in the case of partial partition because they will be absolute
owners for partitioned properties. However, they will have no rights of alienation in respect
of joint family properties which are not partitioned. In the case of total partition, all the
members cease to be members of the HUF, and all the properties cease to be properties
belonging to the said HUF It is to be noted that partial partition may be partial vis-a-vis
properties and members both.
In the case of partial partition, some of the members go out on partition and other members
continue to be the members of the family (HUF). It may be partial where some of the
properties are divided among the members and the other properties continue to be HUF
properties

Reopening of Partition
The general rule is that once a partition is affected, subsequently of partition does not arise.
According to Manusmriti also, partition in a joint family can be done once only, However.
there are some exceptions to this general rule.

1. Subsequent sons or after-born sons.

2. Adopted sons.
3. Minor coparcener.
4. Fraud.
Subsequent Sons (or) After-Born Sons
The wife of the coparcener may be pregnant at the time of the partition. After the partition, if
the wife of the coparcener gives birth to a son, he would be entitled to a share as a
coparcener. He can reopen the partition if his share has not been reserved.
However, it is to be noted that in the case of a son born as well as begotten after partition, if
his father has taken a share for himself and separated from the other sons, then the after-born
son is entitled to his father’s share at the partition and also his separate property to the
exclusion of the separated sons and is not entitled to reopen the partition.
Adopted Sons
After the partition, if the coparcener’s widow makes an adoption, the adopted son could
reopen the partition, He can do so only when his share has not been allotted as such adoption
relates back to the date of his father under the Adoption and Maintenance Act, 1956.
Minor coparcener
If the minor coparcener’s interest is not properly safeguarded, he may ask to reopen the
partition.
Fraud
The partition can be reopened if the partition was spoiled by fraud. But the actual fraud must
be discovered.
Mistake
At the time of the partition of joint family properties, some properties may be left out by
mistake. In such circumstances, the partition can be reopened in respect of properties left out
at the time of partition.

Voluntary or Compulsory Partition

Partition may be either voluntary or compulsory. Voluntary partition is when all owners agree
to divide the property themselves. In such a case, each co-owner owns a part of the property
and ceases to have an undivided interest in the whole. When the co-owners cannot agree to a
voluntary partition, a suit has to be instituted to compel the partition to sever property
interests. In such a case, the partition must be made even if every other owner objects to it. A
tenant in common or a joint tenant has the absolute right to seek a compulsory partition.

Reunion After Partition

Reunion means rejoining as a joint family after the partition is made. The Dayabhaga school
and Dravida school permit reunion after partition. However, parties to the reunion must be
father and sons, brother’s paternal uncle, and nephews. The reunion is also permissible under
the Mayukha and Mithila schools. But reunion parties must be parties to the original partition.
A text, of Brihaspati, being a leading text states that “He who, being once separated dwells
again through affection with father, brother or paternal uncle, is termed reunited with him.”
According to Mitakshara and Dayabhaga, the reunion cannot take place with any person other
than the father, brother or paternal uncle.
Who can Reunite?
Any person who was a coparcener originally in the joint status of the family can be part of the
reunion. Reunification takes place by the virtue of Hindu Succession Act, 1956.

Following are the conditions for the parties to reunite:

 ● A partition is an essential condition for a reunion- No reunion can take place if there
was no partition in the first place.
● The intention to reunite in any case is an essential factor which must not be
overlooked. Reunion shall not take place if there is no intention of the parties to
reunite. Such intention to reunite must be communicated clearly. Where a person
merely live together without having an intention to reunite, it is necessary to note that
such a person shall also not constitute to be a part of the reunion.
● The reunion can take place only if the person has separated with his father, brother or
paternal uncle but not with anyone else other than them, which is the case of
Mitakshara but in the Mithila school, it can be with anyone, provided that they are a
part of the original partition that had taken place and thus have the shares,
individually under their name.
● The reunion must be unilateral, i.e. there must be consent of each and every person
who is a coparcener. The consent of the parties or the coparceners, shall not constitute
to be formal agreements but merely consensual agreements which may be either oral
or written or even by their conduct, depicting their agreements which are not
mandatory to be registered.
● The reunion must be of effect only by the parties, who had been a part of the partition.
● There must be a property involved in the case of the reunion; as reunion does not
merely mean living together as tenants.
● A minor cannot reunite, as he is not a competent party to the contracts. The minor
cannot be a party, either on his own or as someone on behalf of him.
● The rules which are special for the inheritance will not take place in the reunited
property but will only be applicable in case of the separate property which the
reunited person holds.
The intention of the reunion is to bring about the amalgamation of the interests of the parties
in the Hindu Undivided Family and therefore, it creates a right on all the parties involved. In
the case of reunion, it is possible that some of the properties and some of the people involved
in the partition may be left out or choose not to be a part of the reunion at all. This means that
there is a chance of a partial reunion. Therefore, the interest has to be clearly established.