Meaning of Partition

The division of property into two parts is known as partition. Under the Hindu law,
partition means a division of property of a Joint Hindu family in order to give
separate conferment of status on the undivided coparceners. It is important to
note that no partition is possible if there is only a single coparcener in a Joint
family.

The concept of a coparcener is an integral part of the Joint family property in

accordance with the Hindu Law. Each of the coparceners has an equal share of
the property of the Joint Hindu Family and each of them reserves an inherent title
in the property. If a Hindu Joint family decides to do partition then its joint status
of a family comes to an end. However, in order to establish a state of jointness
among the coparceners in a family, it is necessary to have at least two
coparceners present in the family.

A partition can be possible on the property which is capable of being partitioned.

If at all there is a separate property of any of the coparceners in the Joint family
it cannot be subjected to partition. In the case of Mrutunjay Mohapatra v. Prana
Krushna Mohapatra, AIR 2017 Orissa High Court, the Court stated that when
the elder brother had purchased the property from his persona funds it cannot
be subjected to partition and included in the Joint Family at the instance of a
younger brother.

Partition is an event in Hindu Joint family through which the joint status of a
family comes to an end. Partition gives rise to new joint families or nuclear
families. For partition, there must be at least two coparceners in the Hindu joint
family because then only there will be a state of jointness amongst the
coparceners which will come to an end by partition. It implies that until and unless
a coparcenary exists in a family, partition cannot take place.

The concept of coparcenary is an innate part of the Hindu joint family property.
Each coparcener has an inherent title to the joint property and all the coparceners
together own the whole property.

Partition generally means that joint ownership has transformed to separate

ownership of the individual coparceners. Thus partition is also defined as “the
crystallization of the fluctuating interest of a coparcenary property into a specific
share in the joint family estate.”

The concept of partition is applied with different rules under the two schools of
Hindu law.
Dayabhaga School: Under Dayabhaga school, partition means division of
property in accordance with the specific shares of the coparceners i.e. partition
by metes and bounds. It means physical division of joint family property.

Mitakshara School: Under Mitakshara school, partition not merely means

division of property into specific shares. It basically means severance of joint
status. Essential of coparcenary is important but existence of joint property is not
essential for demanding partition. It is a law by which the joint family status
terminates and the coparcenary comes to an end. All that is necessary to
constitute a partition is a definite and unequivocal declaration of the intention by
a coparcener to separate himself from the family.

Essentials of a valid partition

It is pertinent to note that a coparcener reserves a right to demand partition at
any time without the consent of the other coparceners. Therefore, in order to
bring demand for partition the following essentials must be established:-

1. There must be an intention to separate from the Joint Family.

2. There must be a clear, unequivocal and unilateral declaration which
conveys the intention to separate from the Joint Family.
3. The intention must be communicated to the Karta or to the other
coparcener in his absence
Effect of Partition:-
1. A Partition can lead to severance of property or separation of property in
a joint Family.
2. After partition, a person is considered as free from his rights, obligations,
duties and responsibilities arising out of a Joint Family.
3. After the partition has happened the fixed number of shares of every
existing coparcener gets defined.
4. Moreover, post-partition since the number of shares has been fixed the
fluctuations that happen in a family due to births and deaths stops.
5. And the property which has been acquired by the coparcener after the
partition will be known as his separate property or self-acquired property.

Partition of coparcenary property

Partition must not be confused with the de facto division of property and
allotment of the shares. Partition by metes and bounds is not mandatory
ingredient for completing the process of partition. The physical division of the
property affects the mode of enjoyment and management only and not the
nature of its tenure. Strictly speaking, a partition is said to be completed the
moment the severance joint status takes place.

If an intention is expressed to partition the coparcenary property, then each

share of coparceners becomes clear and ascertainable. It is pertinent to note
that once the share of the coparcener is determined, it ceases to be a
coparcenary property. The parties in such an event would not possess the
property as joint tenants but they will possess the property as tenants-in-
common. Tenancy in common is an arrangement where two or more people
share rights in the property.

Types of Partition
Coparcenary is a creature of Hindu law. The concept of coparcenary encompasses
community of interest and unity of possession. Each coparcener’s right extends
to the whole joint family property; though each one of them has an interest in
the whole family property, he has no definite share therein. Partition can take
place in two ways:

De Jure Partition: In an undivided coparcenary, all the existing coparceners

have a joint share in the property, and till the partition takes place, none of the
coparceners can tell the exact amount of share that he owns in the property.

Further, due to the application of the doctrine of survivorship, the interests can
keep on fluctuating due to births and deaths of the other coparceners. But, when
the community interest is broken down at the instance of one coparcener or by
mutual agreement that the shares are now clearly fixed or demarcated, such type
of partition is known as De Jure partition wherein there is no scope of application
for Doctrine of Survivorship.

When the community of interest is broken or divided and converted into a fix
share leaving no scope for the application of doctrine of survivorship, this type of
partition is known as de jure partition or in other words, the severance of the
joint status.

De facto Partition: Unity of possession which signifies the enjoyment of

property by the coparceners may even continue after severance of Joint status
or division of community interest. The amount of shares in the property might
be fixed but no coparceners reserve the right to claim any property as falling
into his exclusive shares. “This breaking up of Unity of Possession is affected by
an actual division of property and is called a de facto partition.”

Unity of possession can be maintained even after a severance of joint status.

The shares might get fixed but no coparcener can claim any property as falling
into his exclusive share. It is not clear that which property will go to which
coparcener. When this unity of possession is broken by an actual physical
division of the property and replaced by exclusive possession, it is called as de
facto partition or partition by metes and bounds.

Subject Matter of Partition

Generally the entire joint family property constitutes the subject matter of the
partition. Separate or self-acquired property of any member of the family is not
eligible to be divided amongst all the coparceners of the family on partition.

If partition of a property can be done without shattering the intrinsic value of the
whole property, such partition is mandatory to be made. On the contrary, if a
partition cannot be made without shattering the intrinsic value of the property, in
such circumstances, a money compensation must be given to every coparcener
instead of his respective share.

If a joint family property consists of movable and immovable properties then each
coparcener must be given his share in all movable and immovable properties. As
per the interpretations of the court in various cases, there is no hard and fast rule
as far as the share of each coparcener in immovable properties is concerned. It
may be possible that some coparceners may not get any share in immovable
property. It depends upon the nature and number of the immovable properties
and also the number of coparceners in a joint family to whom the share in the
property has to be given. Properties of greater value may go to one coparcener
while of lesser value to another. In such a situation, the adjustment of the value
is important. So, the coparcener who gets the larger value property may provide
money to the one who gets the share of lesser value. In this way, a justified and
satisfactory division of joint property can be done so that each coparcener is
equally benefited.

Properties not subject to Partition

As a general rule, the whole joint family property is available for partition.
Exceptionally, there are certain kinds of joint family property which are incapable
of division by their nature. Such properties are impartible and indivisible. The
following are the description of such properties and rules in this regard:

1. Indivisible property by its nature: There are certain properties which

are incapable of division by their very nature. For example, animals, wells,
stair case, furniture, utensils, ornaments etc. The general division of these
types of property will lead to distortion of their intrinsic value, thus cannot
be divided directly. Therefore, these can either be sold and its value is
distributed among all the coparceners or may be distributed by agreement
by adjusting the corresponding values of the properties. While distributing
such properties, due care must be taken to maintain equality in share of
each coparcener.
2. Dwelling house: If we consider the ancient view, the dwelling house
should not partitioned. But according to the modern perspective, the law
does not consider this ancient rule as sacrosanct. A partition of a dwelling
house can be done through a decree by court. The court will put all its
effort to make such an arrangement so that all the coparceners are
equally benefited. If the court fails to make equitable agreement, the
dwelling house will be sold and the value will be divided equally among
all the coparceners.
3. Family shrines, temples and idols: These are the kinds of properties
which can neither be divided nor sold. For such properties, the courts have
adopted the following systems:

• The possession of idols, temples or shrines may be given to the

senior most coparcener or a junior coparcener if he seems to be more
religious or suitable amongst all others with a liberty to other
coparceners to access them for the purpose of worship at all
reasonable times.
• The coparceners may hold them turn wise for a period in proportion
to their share in the property.

4. Staircases, wells, etc: The species of property like staircase, wells,

courtyards, tanks, roads, etc. are incapable of division and valuation by
their nature of existence. For such properties, an arrangement has to be
formulated so that they remain in common use of all coparceners.

Right to Demand Partition

As a general rule, every coparcener of a Hindu joint family is entitled to demand
partition of the coparcenary/ Hindu joint family property. However, every
coparcener has not an unqualified and unrestricted right to enforce partition. The
ambit of their right to effect partition can be studied under the following heads:
 • Special power of father: Under the Mitakshara law, a Hindu father can
affect a partition between himself and his sons and also among his sons.
Despite the express dissent of his sons, he can exercise this right. The
consent of sons is not compulsory. The father is authorised to divide the
title as well as the corpus of the property by metes and bounds. This
right of father has three restrictions on it-
1. Father can divide his property only during his life time but not by will
after his death. A testamentary partition can only take place with the
consent of all the coparceners.
2. A father cannot effect partial partition among his sons without their
consent.
3. The allotment of the property must be equal and fair, He must treat
every son equally by giving equal share to everyone and should not
favour one against the other. If the sons find that the partition was
not just and fair, they may challenge such partition in the court and
ask to reopening the partition for the purpose of readjusting shares.
• Son, Grandson and Great-grandson: All coparceners, who is major and
of sound mind is entitled to demand partition anytime irrespective of
whether they are sons, grandsons or great-grandsons. A clear demand
made by any coparcener, with or without reasons, is sufficient and the Karta
is legally bound to comply with his demand.
• Daughters: Under the Hindu Succession (Amendment) Act, 2005, it has
been admitted that a daughter can also be a coparcener in the Mitakshara
Coparcenary like a son and has all the rights that any coparcener has.
Therefore, a daughter has also acquired the right to claim partition in the
same way as if she was a son
• Son in the womb: A son who is in the womb at the time of partition and
born alive thereafter, is also entitled to a share, though he was not in
existence at the time of Partition. Under Hindu law, a child in the womb is
considered to be as good as in existence for this purpose. A separate share
has to be allotted to him. If his share is not kept, he has the right to ask
for the reopening of the partition so that his share may be allotted to him
thereby.
• Son conceived and born after partition: The right of a son who is
conceived and born after the partition depend upon whether the father has
taken a share for himself at the time of partition from his sons. Where the
father has taken no share for himself at the time of partition , the son
conceived as well as born after partition can demand the reopening of the
partition and obtain his share. In such a case not only the property which
existed at the time of the earlier partition is subject to the repartition but
also the property came into existence thereafter.
Where the father has reserved share for himself, a son who is begotten as well
as born after Partition, is not entitled to have a partitioned reopened, but in lieu
thereof he is entitled after the father’s death, to inherit not only the share allotted
to the father on partition but the whole separate property of the father, whether
acquired by him before or after partition, to the entire exclusion of the separate
sons.

• Adopted Son: The inequality between a natural son and an adopted son
on the issue of their shares on the partition of the coparcenary property
has been abolished by the Hindu Adoption and Maintenance [HAMA] Act,
1956. Adopted son is now entitled to equal share and has the right to
demand partition just like a natural born child.
• Son born of a void or voidable marriage: A child born of a void or
voidable marriage, is a legitimate child of the parents and therefore,
statutorily entitled to inherit their separate property. At the same time, he
cannot inherit property from any other relative of parents. Due to statutory
legitimacy, he can be treated as a coparcener only for the properties held
by the father. He is not entitled to seek partition during the lifetime of the
putative father. Moreover, he can seek partition only after the death of the
father. It can be concluded that the rights of a son born of a void or voidable
marriage are better than those of an illegitimate child, but inferior to those
of a child born of a valid marriage.
• Illegitimate son: The rights of an illegitimate son are the subject of
special rules of Mitakshara. The rules differ from class to class. In the higher
three classes, no illegitimate child is entitled to the share in the coparcenary
property. Although, he cannot ask for partition but still he is entitled to
maintenance as long as he lives, in recognition of his status as a member
of his father’s family. This rule is not followed by Shudras.

• Minor Coparcener: The existence of a minor coparcener is not a bar to

partition and a minor has equal rights to claim partition in the
coparcenary property just like a major coparcener. The only condition
that applies in the case of a minor is that the suit for partition has to be
filed by a guardian or next friend on behalf of the minor. A suit filed by
a major coparcener itself brings partition but this is not mandatory in
the case of a minor coparcener. The court will pass a decree for partition
only if it finds that the partition is in the best interests of the minor and
will benefit him. If the court finds it to be against the welfare of the
minor, it will dismiss such suit.

• Disqualified and Absent Coparcener: Any coparcener who is

disqualified from inheriting under any defect are equally disentitled to a
share on partition.
If any coparcener is absent at the time of partition due to a strong reason and
his share is not kept, he is entitled, on his reappearance to demand partition
through reopening.
People who are entitled to a share in partition
The general rule is that any non-coparcener members of a joint family, whether
male or female is not entitled to get a share in the joint family property on
partition. However, this rule goes with certain exceptions under the Mitakshara
law. The Mitakshara law safeguards and protects the rights of women of the family
including wives, widows, mothers and daughters. These members of the Hindu
Joint family have no right to demand partition but if anyhow partition takes place,
they are entitled to their respective shares. For these females, the entitlement of
shares arises only if there is severance of status of the joint family accompanied
by a partition by metes and bounds. If she is not allotted with her share at the
time of partition, she has the right to reopen the partition to claim her share.

• Father’s wife: A wife does not have a right to demand partition in a Hndu
joint family as she is not recognized as a coparcener. But if partition
takes place between her husband and sons, she is entitled to get a
share equal to that of a son. If a father was married before the
enactment of the Hindu Marriage Act, 1955, and has more than one wife,
each wife is entitled to a separate share equal to that of a son. However,
if the father dies before partition, the son will take the entire property
under the doctrine of survivorship and the wife/wives will not get any
share.

• Widowed mother: After the death of the father, if a partition takes

place between the brothers, their widowed mother will get the share
equal to the share of a brother. Widowed mother includes the step
mother too if she was married to the father prior to the HMA, 1955.

• Paternal Widowed Grandmother: She has no right to demand partition

but if a partition is taking place between her grandsons, she is entitled
to get a share equal to that of a grandson. Grandmother includes step
grandmother too.
Besides these three females, no one else is entitled to receive a share on partition.
Daughter since, is considered as a coparcener, has the right to demand partition
after the amendment of the legislation, thus, is entitled to get share.