1. debts incurred for joint family which are payable out of 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:
Unmarried sisters till they are married.
Mother, grand mother.
Disqualified coparceners and their immediate dependents.
Widowed daughters of the deceased coparceners.

3. marriage expenses of unmarried daughters of the last male holder but not of the collaterals : The
amount of expenses must be commensurate with the wealth of the family there is no need for making
provision for the marriage of unmarried coparceners.
In Sankaranarayanan v. Official Receiver, Tirunelveli the Madras High Court has held that where the
marriage of a daughter is performed after filing the petition should but before the finalization of the
said suit the amount expended for the marriage of daughter is recoverable from the joint family
property.
4. Performance of ceremonies : If a partition takes place among the brothers, a provision has to be
made for the funeral expenses of their mother. Similarly, provision is to be made for the performance
of other essential ceremonies, such as upanayana (sacred thread) ceremony.

PERSONS WHO HAVE RIGHT TO PARTITION :

As per Hindu law, every coparcener of a joint Hindu family is entitled to demand partition of the
coparcenary property. However, every coparcener does not have an unqualified and unrestricted right
for an enforcement of partition. The persons, who are entitled to seek partition are as follows :

1. Father-The father has not merely a right to partition between himself and his sons but he has also
the power to effect a partition among the sons inter se. The Mitakshara expressly confers this
power on the father in respect of not only father's separate property but also in respect of joint
family property. However, it is necessary that the father must act bona fide otherwise the partition
can be re-opened.

2. Son, grandson and great-grandson.- Under the Dayabhaga school, there is no coparcenary
consisting of the father and his lineal male descendants and, therefore, sons, grandsons or great-
grandsons have no right to partition. On the other hand, under the Mitakshara school, son, son's
son and son's son's son have a right to partition. However, in Bombay school, the son has no right
to partition without the assent of his father, if the father is joint with his own father brother or
collteral. Under Punjab customary law also, sons have no right to partition against their father,
because under the Punjab customary law, sons do not have any right by birth.

3. Son born after partition : On the basis of the Mitakshara formulation, we have now two rules; one
in respect of a son in the womb at the time of partition, and the other in respect of a son who
comes into the womb after partition.

4. Son conceived at the time of partition but born after partition : The texts lay down that if the
pregnancy is known, the partition should be postponed till the child is born. But if the coparceners
do not agree to this, then a share equal to the share of a son should be reserved for the child in
the womb. If the child is born a son, he takes it, but if it is born a female, a marriage provision
should be made for her out of the share reserved and the surplus, if any, should be distributed
among the coparceners. In case no share is reserved for the son in the womb, he can, after his
birth, demand reopening of the partition. If pregnancy is not known and consequently no share is
reserved, then also the redistribution of the estate should take place after the birth of the son.

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 then After the death of the father
he takes not only this estate by survivorship but he also inherits the entire separate property
of his father to the exclusion of divided sons.
 (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 stood.

Yet, another situation may arise. When a coparcener renounces his interest in the joint family
property, the question is, has a son conceived and born to him after he has renounced his
interest in the joint family estate, any right or interest in the joint family property, and can he
claim a share if partition takes place ?
A Full Bench of the Andhra Pradesh High Court considered the question and observed that,
the coparcener can no longer be regarded as a member of the coparcenary, and cannot claim
the status of a coparcener with the remaining members of the undivided family.

5. Adopted son : The Dharmashastra has dealt with the position of adopted son in two situations: (a)
when there is a subsequently born aurasa (natural) son of his father : In the former case, though
he has the same right to partition, he is not entitled to the same share. In competition with the
subsequently born aurasa son he takes a lesser share, which differs from school to school.
(b) when there is no such son: the texts lay down that his position is the same as that of the aurasa
son.

6. Son of void marriage or annulled voidable marriage : Since son of a void marriage or annulled
voidable marriage is not a coparcener, he cannot sue for partition. The contrary view is not correct
as held in the case of rasala vs rasala. Presently, an illegitimate son cannot inherit from the father,
but he can inherit from his mother.

7. illegitimate son : Illegitimate sons fall under two categories: (a) The Dasiputra, or a son born to a
concubine exclusively and permanently kept by a Hindu, and (b) an illegitimate son born of a
woman who is not a dasi. Their position is as under :

(a) An illegitimate son of both categories is not entitled to partition or to a share on partition
among the first three classes as he is not a coparcener. He is entitled to maintenance.
(b) The position of a dasiputra of a Sudra is as under :
(1) A dasiputra does not acquire by birth any interest in the joint family property. However,
the father has power to give him a share during his life time.
(2) After his father's death, he is entitled to maintenance, out of the joint family estate, in
case his father has left no separate property.
(3) Where if the joint family consists of the father, his legitimate sons and dasiputra, after the
death of the father, the dasiputra becomes a coparcener along with the legitimate sons
however he is entitled to only one-half of what he would have taken, had he been a
legitimate son.

Position under dayabhaga law : Under the Dayabhaga school, the illegitimate son of Sudra
becomes a coparcener with the legitimate sons when they inherit the property after the
death of the father.
 After the coming into force of Hindu Succession Act, 1956, as the illegitimate son of any
Hindu cannot succeed to his property, the dasiputra's right to become a coparcener with
the legitimate son of his putative father is lost both under the Dayabhaga school and the
Mitakshara school. Under the Mitakshara school, this right remains in respect of
coparcenary property of a Sudra which his sons take by survivorship.

8. Minor coparcener : the right of the minor coparceners is precisely the same as those of major
coparceners. A suit for partition may be filed on behalf of the minor by his next friend or guardian.
A minor is a person of immature intellect, and the court acting as parens patriae has the duty to
protect a minor's interest. If the court comes to the finding that the proposed partition is not for
the benefit of the minor, the partition will not be allowed.

Which date severance of status takes place : (a) from the date of the institution of suit, or (b) from
the date of the court's order finding that the partition is for the welfare of the minor. The Supreme
Court in Kakumanu v. Kakumanu, has resolved the controversy by holding that it takes place from
the date of institution of the suit as the court is to recognize the right which had already been
accrued to him.

It is also an established rule of Hindu law that presence of minor coparceners is no bar effecting
partition by adult coparceners. Thus, a partition by agreement entered into by adult coparceners,
when there are minor coparceners will be binding on the minor coparceners, unless it is unfair or
prejudicial to their interest.

9. Alienee-A purchaser of a coparcener's interest in a court sale, or in at private sale where the
coparcener has such a power, can demand partition as he steps into the shoes of the coparcener
for the purpose of working out his equity.

10. Daughters-After amendment of 2005 now the daughters in their right coparceners can claim
Partition. Daughters.

In Pachi Krishnamma v Kumaram : daughter claimed her share as equal to the son during partition
but failed to prove his customs saying equal share to daughters as sons. But after the amendment
has equal rights as that of son.
In case of Danamma Suman Surpur and Anr v Amar and ors : the Hon’ble Supreme Court held that
daughters have equal rights in the ancestral property even if they were born before enactment of
the Hindu Succession Act.

11. Absent-Coparcener : When the coparcener is absent at the time of partition, a share has to be
allotted to him. In case no share is allotted to him, he has a right to get the parttion reopened.
PERSONS WHO ARE ENTITLED TO SHARE IF PARTITION TAKES PLACE :
There is another category of members of the joint family who have no right to partition but, if partition
takes place, they are entitled to share. In this category fall three females: father's wife, mother and
grandmother.
FATHERS WIFE : If a partition takes place between her husband and his son, the father's wife is entitled to
a share equal to the share of a son. If no share is allotted to her, she can get the partition re-opened. Under
the Dayabhaga school, she has no such right.
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. Under the Dayabhaga school, a childless stepmother is not entitled to a share on
partition.
GRANDMOTHER : in mitakshara school, When partition takes place between her son and sons of a
predeceased son, she is entitled to a share equal to the share of a grandson.

Brownie point :
Whenever father's wife or widowed mother is given a share on partition and she has also received
stridhan from their husband or father-in-law, her share is subject to deduction to the extent of the value
of stridhan so received by her.

How Partition is Effected

It has been seen earlier that according to the Mitakshara school partition means two things: severance of
status and division of property by metes and bounds.

Severance of joint status or interest

(a) Expression of intention.-What is necessary to bring about a severance is a clear and unequivocal
expression, by words or conduct, of an intention to partition. Once intention to partition is expressed it
results in partition, share of each coparcener becomes clear.
In Raghvamma v. Chenchamma : the Supreme Court said that there must be intimation, indication or
representation of an intention to partition, though in what form the manifestation of an intention is made
will depend upon the circumstances of each case.
But, as the Supreme Court said, if the expression of intention is a mere preference or a sham, there is, in
the eyes of law, no severance of the joint family status.
Girjanandini v. Bijendra, the Supreme Court said that merely because one member of a family severs his
relations there is no presumption that there is a severance between the other members.

(b) Communication of intention to server : it is necessary that intention to sever must be communicated
to other coparceners. The difficult question in this connection is: when should the communication of
intention to sever be deemed effective from the date on which the communication is put into
transmission, or from the date on which it reaches the coparcener?
Raghavamma v. Chenchamma : in this the SC held that The communication of intention to sever must be
communicated to all interested parties and severance will be effective from the date on which the
communication was put into transmission.
Puttranganna v. M.S. Rangamma: In this case, a coparcener posted a letter and then withdrew the same.
But the news of the intention reached the affected parties indirectly. The court held that communication
was sufficient and effective and it could not be withdrawn. It Was also held that communication to karta
alone is not sufficient and It is also well established that once the intention is declared and its
communication made, the severance of status takes place, assent or dissent of the other coparceners is
immaterial.

DIVISION OF PRPERTY BY METES AND BOUNDS

Partition by metes and bounds.-Partition in its larger sense consists in a division by which the share of each
coparcener with respect to all or any of the joint property is fixed, and once shares are defined, the
partition in the sense of severance of status or disruption of joint status is complete, but after the shares
are so ascertained, the parties might elect either to have a partition of their status by metes and bounds,
i.e., actual division of property or continue to live together and enjoy their property in common as before.
Partition means severance of status as well as division of property by metes and bounds. The latter is a
consequence of the former.

MODES OF PARTITION
A partition can be made by a definite, unambiguous declaration of intention by any coparcener to
separate himself from the family. If this is done, it would amount to division of status, whatever mode
may be used. But separate enjoyment for the sake of convenience is not a partition.

Partition by suit : When a coparcener files a suit for partition, it amounts to an unequivocal intimation of
the intention to sever, and consequently, severance of status takes place from the date the suit is
instituted. In a suit for partition, the initial burden is on the plaintiff to show that the entire property is
joint family property.
In Kedar Nath v. Ratan Singh, the Privy Council said that if the suit is withdrawn before the summons are
served on the defendants there is no severance of status.

Partition by agreement : An agreement to constitute partition must define the shares of coparceners
with an intention of an immediate separation, otherwise such an agreement will not lead to severance of
status. Under Hindu law, an agreement to partition need not be in writing. The severance of status takes
place from the date of signing of the agreement.

Oral partition.-There is a long line of cases holding the view that oral partition can be validly made. The
rationale behind the principle is that partition does not involve transfer of property; it is in the nature of
mutual renunciation of rights. It can be made oral as held in the case of girja vs Sadashiv.
Unilateral declaration : This, in other words, means that the consent of the other coparceners is not
necessary. But this does not mean that intention need not be communicated. The communication of
intention is necessary, whatever mode of partition one may use.

Partition by arbitration : If members of joint family enter into an agreement under which they appoint
arbitrators for dividing the joint family property among themselves, the severance of status takes place
from the date of the agreement.

Partition by conduct : The conduct, like a declaration of intention, must be unequivocal, explicit and
definite. For instance, separation of food, worship, dwelling, separate enjoyment of the property,
separate income and expenditure.

Automatic severance of status : Conversion of a coparcener to a non-Hindu religion (i.e., Islam,

Christianity, etc.) operates as an automatic severance of status of that member from others, but it does
not amount to severance of status among the other members inter se.

PARTIAL PARTITION :
On partial partition, the family does not cease to be joint family and the joint business continues to be
joint. A partial partition may be :
A. Partial as to property
B. Patial as to persons
Partial as to property : it is open to the coparceners to sever their interest in respect of part of joint estate,
while retaining their status of a joint family in respect of the rest of the properties. Sometimes a partition
may be partial because a statute forbids fragmentation of holdings, when by their very nature some
properties are not capable of partition, or when estate is impartible by custom.
Partial as to coparcener : If one coparcener or a group of coparceners want to separate, they cannot
impose separation on others inter se. No express agreement to remain joint on the part of the remaining
coparceners is necessary.

TAKING OF ACCOUNTS :
no coparcener can even at the time of partition, call upon the karta to account his past dealings with the
joint family property. However, when a coparcener suing for partition is entirely excluded from the
enjoyment of property, he can ask for accounts. After the severance of status has taken place, the karta is
bound to render accounts of all expenditure and income.

Rules relating to division of property

In the old Hindu law, two modes of division of property were recognized: Putra bhaga and
patni bhaga. When a division of property is by the number of sons, it is known as the putra
bhaga. When a division of property is according to the number of wives, it is known as the
patni bhaga. In modern Hindu law, the putra bhaga rule operates and patni bhaga rule is
obsolete.
The Hindu sages also recognised another practice which came to be known as the jyeshta
bhaga doctrine. Under this doctrine, the karta or the eldest brother took double share. In
modern Hindu law, this doctrine is not recognized.

In a partition by metes and bounds, the shares are allotted to coparceners on the basis of
the following rules:

1. Division between father and son.-When partition takes place between father
and sons, the rule is that each son takes a share equal to the share of the father. For
example, A has three sons, B, C and D. Each of them, i.e., A, B, C and D will take 1/4
share in the joint family property.

1. Division between brothers. When a coparcenary consists of brothers and a

partition takes place between them, the rule is that they take equal shares in the joint
family property. For instance, a coparcenary consists of five brothers A, B, C, D and E,
each of them on partition, will take 1/5 share.

2. When division takes place among branches -When a coparcenary consists

of several branches and a partition takes place, the rule is that each branch takes per
stirpes (i.e., according to the stock) as regards every other branch, and the members of
each branch take per capita (i.e., per head) as regards each other. This rule may be
explained by the following examples.

In this example, a coparcenary consists of three generations father, sons, and

grandsons. If partition takes place among the coparceners, according to Rule 3, partition will
 be per stirpes. This means that in a partition where there are branches, there are two steps
in partition: (a) the division of properties will, first, take place between the father and sons,
i.e., between the father and the heads of branches. The shares allotted to the heads of
branches will be the shares of the respective branches. Thus, in the above illustration, in the
first step of partition, properties will be divided between A, S, S1 and S2. If we apply Rule
(1), viz., each son takes a share equal to the share of the father, each one of them will take
1/4 share in the property. Although A's 1/4 is A's individual share, 1/4 of S, S1 and S2 are
not their individual share but the share of their respective branches, (b) the next step will
be to effect partition between the members of each branch. The second part of Rule (3) lays
down that among the members of a branch, the distribution will be per capita (per head).
Applying this rule we find that in S's branch there are four members including himself; if we
divide 1/4 share of this branch into four shares, result will be that each of S, SS, SS1 and SS2
will take 1/4 x 14 = 1/16, if we divide S's branch's share, we find there are three members
including S1; the share of S1, SS3 and SS4 will be 1/4 x 1/3 = 112 each. If we divide the share
of S's branch, there being two members in the branch each will take 1/4 x 1/2 = 1/8.

3. Doctrine of representation.-Under the Mitakshara school, coparcener's interest

devolves by survivorship. This is subject to the rule that where a deceased coparcener
leaves male issues, the latter represent their ancestor in a partition, and take his share,
provided that such issues are within the limit of coparcenary. For example, take the
following Diagram:

If partition takes place, SSSS will not take any share, as on the death of S4, SS4 and SSS2, he
got removed by more than four degrees from the last holder of the property, i.e., P, and thus
lost his right of ever becoming a coparcener. The share of his branch will go by survivorship to
the other coparceners. Thus, if a partition takes place, in the first step, properties will be
divided into four shares, i.e., per stirpes, P will take 1/4, S will take 1/4. Since S2 is dead, his
interest will be taken by his two sons SS1 and SS2 representing their father. In the second
step, they (SS1 and SS2) being brothers (or as members of the same branch) will divide
equally, i.e., each will take 1/8. Similarly, since S3 and SS3 are dead, SSS will represent them
and being the only person in this branch will take 1/4.

Under the Dayabhaga school

The aforesaid Rules apply to the partition under the Dayabhaga school with some
modifications. Under the

Dayabhaga school, there is no room of Rule (1) as there cannot be a partition between father
and sons. Rule (2) applies as it is. The share of a brother who is dead, is taken by his heir,
devisee or assignee. Rules (3) and (4) apply with some modifications. Their application may
be illustrated as under:

Under the Dayabhaga school, the coparcenary comes into existence on the death of the
father when sons succeed to his property jointly. In the present Diagram, on A's death, the
coparcenary consisting of B, C and D comes into existence. Subsequently, C dies leaving
behind a son CS, and then D dies leaving behind two sons DS and DS1. Now the coparcenary
consists of B, CS and DS and DS1. If now a partition takes place, the properties will be divided
into three shares: B taking 13, CS taking 1/3 and DS and DS¹ together taking 1/3. This
illustrates both the per stirpes and the representation rules. The doctrine of representation in
the Dayabhaga school applies with some modifications. For instance, if a Dayabhaga
coparcerter dies leaving behind a widow, or a daughter or daughter's son, his share will
devolve by succession on widow, daughter or daughter's son, as the case may be, and will not
lapse into the shares of other members. The doctrine of representation does not extend
beyond daughters. The daughters of the same class inherit their father per stirpes. The
daughter's sons do not take as representatives of their mother, but as heirs to their maternal
grandfather. This means that no daughters can take a share, until all the eligible daughters are
dead. When daughter's sons inherit, they take per capita and not per stirpes. Thus, if a
person has six sons from a predeceased daughter A, and one son from a pre-deceased
daughter B, then on his death, the sons of both daughters will take equally, i.e., 1/7 each.
SUCCESSIVE PARTITION

In the wake of partial partition, i.e., when some of the coparceners partition and take away
their share, leaving the rest joint, a problem relating to allotment of share arises when the
remaining coparceners effect a partition subsequently. So when successive partition takes
place, how are shares to be determined?

Rebus sic stantibus : Ordinarily, the doctrine of rebus sic stantibus applies. The doctrine
means that the existing facts are taken into consideration, i.e., state of the family at the time
of each partition should be taken into account while ignoring the earlier partition or
partitions.

Equitable view.-The Madras and Mysore High Courts differ from the Bombay view. These High
Courts hold that the former partition too has to be taken into account.

REOPENING OF PARTITION :

Manu runs: "If, after all the debts and assets have been distributed according To the rule, any
property is afterwards discovered, one must divide it equally.

The courts have taken the view that though a partition once effected is final, yet it can be re-
opened in case of fraud, mistake or subsequent recovery of property.

The matter may be looked at from two angles:

a) Readjustment of properties, and b) Re-opening of partition.

1. Readjustment of assets : one case of re-adjustment of the properties which are discovered
after the distribution of assets had taken place. Thus, the general rule is that when
readjustment can be made, a partition need not be re-opened.

2. Re-opening of partition : Generally, a partition can be re-opened if it was obtained by

fraud, coercion, misrepresentation or undue influence.

Fraud : When the whole scheme of distribution of properties is fraudulent, it will be ordered
to be set aside. For instance, when worthless assets have been given to some coparceners as
valuable assets etc.

Son in womb : It has been seen earlier that if at the time of partition a son is in the womb and
no share is reserved for him, he can get the partition re-opened.

Adopted son : A son adopted to a deceased coparcener by his widow after the partition, is
entitled to re-open the partition.
Disqualified coparceners : A disqualified coparcener, who recovers from his disqualification
after the partition, can get the partition re-opened.

Son conceived and born after partition : It has been seen earlier in the work that where the
father does not take a share on partition, and a son is begotten and born to him after
partition, the partition can be re-opened.

Absentee coparcener : If at the time of partition a coparcener is absent and no share is

allotted to him, he can get the partition re-opened.

Minor coparcener : When a partition is effected during the minority of a coparcener, he can
get the partition re-opened if he can show that partition was unfair, prejudicial or unjust.

In Venkata Subramania v. Easwara," the Madras High Court held that when in a partition one
member gets an excess share, and out of the income of the excess share, he acquires fresh
property, he does not hold the fresh property for the benefit of the other sharers when the
partition is subsequently re-opened on the ground of unequal partition. However, he will be
liable to account for the co-ownership funds used by him.

REUNION :

For reunion, two conditions must be satisfied :

1. reunion can be made only between the parties to partition

2. A reunion can take place only: (a) between father and son, (b) between the paternal
uncle and nephew, and (c) between brothers

It is implicit in the concept of reunion that there should be an agreement to reunite between
the parties. Such an agreement need not be in writing. It may be implied from the conduct.

All the schools agree that reunion is possible only between the parties to partition. However,
the Bombay High Court said that a reunion may take place even among the descendants of
persons who were parties to partition.

REUNION HOW EFFECTED :

To constitute a reunion, there must be an intention of the parties to reunite in estate and
interest. It is implicit in the concept of a reunion that there shall be an agreement between
the parties to reunite.

Can a minor reunite : the Privy Council decision in Balabux v. Rukhmabai,' it seems to be clear
that a minor cannot reunite, since a minor has no capacity to contract. Mayne has argued
very cogently: "It is open to the father or mother as his guardian to effect a separation on
behalf of the minor coparcener, it would be equally open to the father or mother to reunite."
The Madras High Court favoured this view in Babu v. Govinddass.
EFFECT OF REUNION :

There has been some 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
status continuing. It is, now, an established view both under the Mitakshara and Dayabhaga
schools that after reunion status quo ante is fully restored.