Shalini Raut & Ors v Milind

Raut And Dr.Gautam Raut

& Ors

A case of Partition under Hindu Law

Partition
● Partition is an incident of Hindu Undivided Family whereby joint family status among
coparceners comes to an end.
● It means that joint ownership is transformed into separate titles of individual
coparceners in respect of several items of properties.
● There can be no partition unless there are at least two coparceners.
● Partition is a process whereby joint tenants become tenants - in - common as there
is severance of ownership of coparcenary property by coparceners.
● All that is necessary to constitute a partition is a definite and unequivocal indication
of intention by a coparcener to separate himself from the family.
● Under Dayabhaga school, partition means division of property.
● But, under Mitakshara school, partition does not merely mean division of property
into specific shares, it basically means severance of status or interest as the shares
in mitakshara coparcenary are not specified but are fluctuating.
● Under Mitakshara school, Partition involves:
1. Severance of interest/status.
2. Actual division of property in accordance with the shares so specified. (known as
partition by metes and bound/ physical/ actual partition)
● For partition, intention matters, existence of property is not essentially required for
partition.
● Subject matter of partition: The only property that can be divided under partition is
coparcenary property.
Principle of partition:
1. If property can be partitioned without destroying the intrinsic value of the whole
property or share, such partition ought to be made.
2. If not, no partition can be made without destroying the intrinsic value, then a money
compensation should be given instead of share which would fall.
Property that cannot be included under subject matter of partition:
1. Individual / self acquired property
2. Property under primogeniture cannot be divided
3. Family idols and place of worship
4. Property of indivisible nature, eg; vehicle, animals, furniture, ponds, staircase, well,
etc.
Provisions to be made before partition:
1. Payments of joint family debts
2. Personal debts of father
3. Maintenance of dependants: mother, grandmother, widowed daughter of deceased
coparcener, unmarried sisters till they are married, disqualified coparcener and their
immediate dependants.
4. Marriage expenses
5. Funeral expenses
Right to demand partition/ entitled to share on partition:
1. Father (demand)
2. Son/daughter, grandson/granddaughter , great grandson/ great granddaughter
(demand)
3. Son/daughter conceived before but born after partition (demand)
4. Son/daughter conceived and born after partition (entitled)
5. Adopted son or daughter (entitled)
6. Widows (entitled)
7. Alienee (demand)
8. Wife, widowed mother, paternal grandmother (entitled)
Who can sue for partition:
1. Every adult coparcener
2. A Purchaser of a coparcenary interest of a coparcener at a sale in execution of a
decree
3. A minor
4. A widow
Modes of partition:
1. Partition by mere declaration to separate
2. Partition by notice
3. Partition by will
4. Conversion to another faith
5. Marriage under special marriage act, 1954
6. Partition by agreement
7. Partition by arbitration agreement
8. Partition by father
9. Partition by suits
Reopening of partition:
1. Mistake
2. Fraud
3. Son in womb
4. Adopted
5. Disqualified coparcener
6. Son conceived and born after partition
7. Absentee coparcener
8. Minor coparcener
Reunion:

According to Mitakshara, re-union cannot take place with any person indifferently but
with father, a brother or a paternal uncle. According to Dayabhaga also, a reunion is valid
only with a father, brother or paternal uncle. There is a difference of opinion between the
different schools on the question whether any two persons who were parties to the
partition may reunite.
Effect of reunion:

The effect of reunion is to remit the reunited members to their former status as members
of a joint Hindu family. [Pran Krishan v. Mathur Mohan (1865) 10 M.I.A. 403], The question is
whether the property, which was formerly joint but was later on parted as a result of
partition will pass by survivorship or by inheritance. The majority of High Courts are of the
view that property will pass by survivorship like any other joint family property. There is no
difference in coparcenaries by birth and coparceners by reunion. The special rules of
inheritance are applicable only to the separate property of the reunited members.
Overview
The rights of coparceners in the interests of Hindu Undivided Families
properties have been hotly contested in the recent times. This case discusses
the altered position of the Hindu Succession Act 1956 with regards to
coparcenary rights in the ancestral properties or Hindu Undivided Family
properties. The Court held in this case that after the death of the coparcener,
his or her interests in the ancestral property devolved to his or her sons and
daughters (after the amendment of 2005) by means of testamentary
succession and not by survivorship as per Section 8 of the Hindu Succession
Act. Until the Amendment of 2005, daughters and other female relatives were
considered as heirs and were entitled to their shares by means of notional
partition only upon the death of the male relative. However, the amendment
has given them the status of coparceners, who are equally entitled to their
shares in the ancestral property by succession.
Plaintiff: Shalini Sumant Raut and Ors.
Bench: R. S. Dalvi
Defendants: Milind Sumant Raut & Ors. and Dr.
Gautam Manohar Raut & Anr. (applicants)
Date of reserving the order: 31st october, 2012
Date of pronouncing the order: 14th december, 2012
Facts
● In this case, Rajaram expired on 23.11.1991 leaving behind 8 heirs being his 5 sons and
3 daughters.
● Some of them have expired leaving behind their widow and sons and daughters.
● The children and the grand children who are the children of the pre-deceased or the
deceased children of Rajaram are the parties to the suit.
● Rajaram died intestate.
● Rajaram’s succession opened on 23.11.1991.
● His interest in his ancestral property which was Mitakshara coparcenary property,
therefore, devolved upon his sons and daughters by intestate succession under
Section 8 of the Hindu Succession Act and not by survivorship.
● All his sons and daughters would share equally per capita as tenants in common.
● Upon their death their children would take their share.
● Under that succession so long as the sons and daughters of Rajaram are alive, the
grandsons or the great-grandsons of Rajaram would not succeed at all to any interest
in the coparcenary property that Rajaram had.
● In the case of Commissioner of Wealth-tax, Kanpur v. Chander Sen, the Supreme
Court held that the heirs in Class I do not include the grandson being the son of a son
living.
● Hence it is held that when the son as a Class I heir inherits the property, he does so in
his individual capacity.
● The son takes individually in his individual capacity and not as Karta of his own family.
● It is seen in this case that though the suit is indeed in respect of the ancestral
properties left by Rajaram, the shares claimed by the plaintiffs are ascertained as if on
succession.
● They are not ascertained taking into account the survivorship of any coparcener of
the Hindu Undivided Family (hereinafter referred to as “HUF”) of Rajaram but as
co-owners of the property belonging to Rajaram.
● The addition of the applicants to the array of parties in the suit would necessitate
revision of the shares of each coparcener which, upon partition, he/she would be
entitled to.
● Consequently the share of the parties to the suit would also similarly vary.
● The applicants would be required to file their own separate suit for partition of the
coparcenary interest which they have in the HUF of Rajaram which would continue
after his death, until partition is demanded by any coparcener.
● Though, the applicants may be entitled to partition, it would not be proper to allow
them to join in this suit. They may sue separately upon showing all the coparceners of
the HUF of Rajaram.
● After the death of Rajaram when the family continued joint but with diminution of
the share of Rajaram and upon the death of Sumant, another son of Rajaram on
22.01.2008, the interest of Sumant in the coparcenary also devolved by succession,
he having left a widow and a daughter as his female relatives (heirs).
● The daughter of Rajaram, Sunanda having died in 2001, the share in the coparcenary
would not augment or diminish, she not having been a coparcener until her death;
she is only an heir of the deceased Rajaram who would have succeeded to his
Rajaram’ interest in his ancestral properties.
● The applicants, therefore, do have a share in the HUF properties, being the ancestral
properties of Rajaram left after the interest of Rajaram and Sumant and another such
deceased coparcener leaving behind female heirs or male heirs claiming through
their female heirs is deducted there from.
● However, since the suit is not fully settled, it continues.
● The applicants are, therefore, seen to be the coparceners of the suit properties which
are admittedly ancestral properties.
● The applicants would certainly be entitled to demand partition of the properties.
● They would have to consider and account for the notional partition as had taken
place upon the death of Rajaram leaving three female heirs and ascertained their
share in the suit properties.
● The applicants would also have to consider and account for the notional partitions
which may have taken place in their HUF upon the death of other coparceners
leaving behind other female heirs.
RATIO DECIDENDI OF THE
CASE
The Ratio decidendi of the case was found to be, “Entire
property of deceased which is ancestral and which continues
joint would not succeed to his sons as heirs of deceased alone
but other legal heirs would have a share in HUF properties,
being ancestral properties of deceased left after interest of
deceased.”
Issues
● Whether the applicants, who are the son and grandson of Plaintiff No. 4 must
be made a party to the suit as having an independent right and interest in the
suit properties being coparceners of the joint Hindu family.
● Whether a son or a grandson of a coparcener claiming an interest in the joint
family properties/coparcenary properties would be entitled to claim such
interest by virtue of his birth?
Analysis
● Coparcenary Property
The joint family property and the joint family ancestral property are collectively, or
individually called as coparcenary property.

Coparcenary property is collectively owned by all the coparceners, and thus, to own
an interest in the ancestral or joint family property, a Hindu male or female must be
a coparcener.

There is joint possession, and since the ownership is collective, a Hindu male or
female has limited powers of disposal over it.
The property inherited by a Hindu from his father, father’s father or father’s father’s
father is the ancestral property (unobstructed heritage as regards his own male issue).

His male issues acquire an interest in it from the moment of their birth.

They become coparceners with their paternal ancestor upon their birth.

The joint and undivided family is a normal condition of Hindu society.

An Undivided Hindu family is ordinarily joint in estate, food and worship.

A Hindu coparcenary is a narrower body than the joint family.

It includes only those persons who acquire by birth an interest in the joint or
coparcenary property.

The persons who acquire an interest by birth in a joint family property or coparcenary
property are sons, grandsons and great grandsons of the holder of the joint property,
and now, after the 2005 Amendment Act , even daughters, daughters’ daughters,
daughters’ sons’ daughters, daughters’ daughters’ and daughters sons’ daughters.
They become entitled to joint property/coparcenary property upon their birth.

The property inherited by a person from his father is ancestral in his hands.

He is not the owner of the property, he is entitled merely to hold and manage the
property as the head of the family for and on behalf of the family.

The ownership of the property is in the joint family consisting of himself and his sons.

They are all co-owners or coparceners. (Hence the expression co-owners and
coparceners are synonymous).

As can be seen, the essence of a coparcenary is unity of ownership.

No coparcener or member of a joint Hindu family has a definite share in the property.
His interest is a fluctuating interest.

It is enlarged by the deaths in the family; it is diminished by the births in the family.

Hence his interest is called “undivided coparcenary interest”.

He becomes entitled to a definite share only on partition, and the members of a joint
family who are within 3 degrees from the last holder of the property have a right to
demand partition.

The interest of the deceased members passes on his death to the surviving coparceners.

Each and every coparcener has an equal interest in the coparcenary property.
 ● Section 8 Of The Hindu Succession Act, 1956

According to Section 8 of the Hindu Succession Act, 1956, after the death of a male
Hindu, who dies intestate (without leaving a Will behind him), his property shall devolve
to his immediate heirs (relatives specified in class I and class II of the Schedule), and not
to all the coparceners in the family tree.

The interest that the male had in the coparcenary property, upon his death, is divided
equally among all his heirs, that is, his sons, daughters, widow and mother.

This property is devolved by the rules of succession, and not survivorship.

Hindu Succession Act "Heirs in Class I"

Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased

son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a
predeceased son; son of a predeceased son of a predeceased son; daughter of a
predeceased son of a predeceased son; widow of a predeceased son of a predeceased
son.

Hindu Succession Act "Heirs in Class II"

I. Father.

II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.

III. (1) Daughter's son's son, (2) daughter's son' daughter, (3) daughter's daughters' son, (4)
daughter's daughter's daughter.
IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.

V. Father's father; father's mother.

VI. Father's widow; brother's widow.

VII. Father's brother; father's sister.

VIII. Mother's father; mother's mother.

IX. Mother's brother; mother's sister.

Explanation : In this Schedule, references to a brother or sister do not include references

to a brother or sister by uterine blood.
The Schedule annexed to Section 8 showing Class I and Class II heirs show the son,
daughter, widow and mother of a Hindu male dying intestate as his first heirs.

Along with them are included the sons and daughters of predeceased sons and daughter;
a grandson is not included anywhere in Class I or Class II of the schedule to Section 8 of
the HSA.

The grandson never succeeds to the property of the Hindu male dying intestate.

hat includes also the interest in the joint family property which that Hindu male had and
which would constitute his property or his estate. Under Section 6 of the HSA 1956, there
is a notional partition which is deemed to have been affected upon the death of a
coparcener.

The share so separated devolves upon the heirs of the deceased instead of vesting in the
other coparceners by survivorship.
Hindu Succession Amendment Act, 2005

This law was put into action with the aim of expanding the rights of women irrelevant of
their status and circumstances.

This law brings them to par with the male members of the family.

This law followed all reports presented by the commission in the year 2000.

This law assured a woman that she gained coparcenary rights and also the liabilities
equal to that of a son.

The amendments not only limit itself with the rights but also make sure that a daughter
becomes liable for the debts and the losses too in addition to the property shares and
other rights.
Section 6 of the Hindu Succession Amendment Act, 2005 has challenged the fundamental
principles of the earlier Hindu Coparcenary law.

This amendment made sure that daughters whether married or not, will be given rights
equivalent to that of a son on the matter of coparcenary rights.

It is also mentioned that females of any joint family are also eligible to be a Karta now.

Any reference made to a coparcener would easily and obviously include daughters as well.

Properties entitled to a woman by inheritance by her would-be under coparcenary ownership

will not be disposed of by testamentary disposition.

A complete fair chance of equality even after her death at par with a son is still not provided
herein.

But the fact which is clearly mentioned is in the matter of intestate succession, properties that
are inherited by a woman from her father would return back to her parental kin and not her
husband’s family and also the vice-versa.
Held
The Court held that applicants did
have a share in HUF properties,
being ancestral properties of the
deceased. Since coparceners jointly
own the coparcenary property, these
properties could not have been
alienated without the consent of all
coparceners. In coparcenary, after
the death of a coparcener, his
interest of the property would be
equally divided among his heirs, by
notional partition, and other
coparceners would continue to
enjoy their interest in the joint family
property.
Conclusion
Before the 2005 Act, daughters were only regarded as heirs to their father, and could
only get the father’s share of notional partition after his death, and not in his lifetime.
Though the 1956 Act did try to remove the disparity that existed between male and
female children before 1956, it did not fully succeed. Complete equality was brought
about by the 2005 Amendment Act, where the daughters were given equal status to
that of the sons, by being made more than just heirs. Daughters now enjoy the same
rights as that of the son, and are also equally subjected to liabilities in the coparcenary
property. This Act of 2005 has opened up new horizons for women to get their fair
share in society. It is in tune with the true spirit of our Constitution and treats men and
women alike.