Partition Under Hindu Law

Partition Definition: Partition refers to the division of a family’s property among its members,
effectively ending the joint status of the family. After partition, the joint family ceases to exist, and its
members become separate, forming individual nuclear families. The partition process enables
coparceners to acquire their fixed shares in the joint family property.

Mitakshara School’s View on Partition:

Under the Mitakshara system, partition is understood as the severance of status or interest in the
family, rather than just a division of property. The partition process results in a complete severance
of the joint family status. A mere division of property doesn’t constitute partition; it’s the severance
of family status that defines the true partition.

Types of Partition:

1. Total Partition:

o In this method, the entire family property is divided among all coparceners,
effectively ending the joint family status for everyone involved.

2. Partial Partition:

o Here, only certain members of the family separate, while the remaining members
continue to live as a joint family. The separating members receive their shares, but
the joint status of the others remains intact.

Conditions for Partition:

For either total or partial partition to occur, two essential conditions must be met:

1. Intention to Separate:

o There must be a clear intention among the family members to separate from the
joint family. This intention can be individual or shared by multiple members.

2. External Declaration of Intention:

o The intention to partition must be communicated externally. This can be done

through verbal or written declarations. A clear, explicit declaration of intent is
essential for the process to begin.

Modes of Partition in Hindu Law:

1. Partition by Mere Declaration to Separate: A member of a joint family can sever their
connection from the family by declaring their intention to separate. This declaration, which
can be unilateral, does not require agreement from other coparceners. A clear declaration,
like filing a partition suit, indicates severance.

2. Partition by Notice: A coparcener can serve notice to others stating their intent to separate
and demand partition. If the notice is withdrawn with the consent of other coparceners, no
partition occurs.

3. Partition by Will: A coparcener can express their intention to separate from the family
through a will. However, if the will doesn’t explicitly indicate the intent to sever, it does not
result in partition. Consent from adult members is also required.
 4. Partition by Conversion: When a coparcener converts to another religion, their joint status is
severed, and they take their share of property as it stood at the time of conversion.
Reconversion to Hinduism doesn’t automatically restore coparcenary rights unless there is a
subsequent act.

5. Partition by Marriage under Special Marriage Act, 1954: A Hindu marrying under this act is
considered separate from the family, effectively severing the joint status.

6. Partition by Agreement: If members of a joint family agree to hold and enjoy property as
separate owners, it constitutes a partition, even if the property isn’t physically divided. This
agreement signifies the severance of joint status, though the division of property may
happen later.

7. Partition by Arbitration: An agreement to appoint an arbitrator to divide the family property

also results in partition. The partition occurs from the date of the agreement, even if no
award is made.

8. Partition by Father: Under the ancient doctrine of 'Patria Potestas,' a father may cause the
severance of his sons from the joint family without their consent, binding them to the
partition.

9. Partition by Suits: Filing a suit for partition automatically severs the joint status of the family.
Even if the suit is dismissed, the severance remains as long as the suit was filed. A father’s
consent is no longer required for sons to file a partition suit.

Non-Exhaustive Nature of Modes: The nine listed modes are not exhaustive. Any action or conduct
that clearly demonstrates the intention to separate can constitute partition. Partition doesn’t require
other members’ consent, but it must be clearly expressed through actions, such as filing a suit,
serving a notice, or entering into an agreement.

Doctrine of Relation Back and Its Limitations:

 Doctrine of Relation Back: Once a coparcener communicates their intention to separate

(either to the Karta or other coparceners), the partition relates back to the date the intention
was declared. The intention must be expressed and then brought to the knowledge of the
affected persons. The partition is retroactive, i.e., it is as if the separation happened from the
date of declaration, not the date of communication.

 Limitation of the Doctrine: If a coparcener dies before the intention is communicated, the
partition is not effective. If a property vested in a third person between the date of
declaration and communication, that vesting remains unaffected by the partition.

 Case Reference - A. Raghavamma v. A. Chenchamma (1964): In this case, the court held that
a declaration in a will did not communicate the intention to separate, and even if it did, the
partition would not relate back if the property had already vested in another person before
the communication.

 Principle of Equity: The doctrine should not disturb vested rights or settled titles. Vested
rights that are created before the communication of the intention to separate should remain
unaffected. This principle ensures fairness and prevents confusion of titles.
  Retrospective Nature: The doctrine of relation back operates retroactively but cannot affect
vested rights or rights already acquired. It would not disturb any rights that have become
valid between the declaration and communication of the intention.

Reopening of Partition:

 Manu’s Text on Finality of Partition: One text suggests that a partition, once made, is final
and irrevocable. However, another text says that if after a partition any property is
discovered, it should be divided equally.

 Yajnavalkya’s Text on Redistributing Concealed Property: This suggests that if property

concealed by one co-heir is discovered after partition, a new division should occur.

 Katyayana’s View on Unequal Distribution: If property has been distributed unequally, it

should be redistributed according to the law.

 Court’s View: Though partition is generally considered final, it may be reopened in cases of
fraud, mistake, or subsequent recovery of property.

Readjustment of Assets:

 When Readjustment is Possible: If some property is discovered after partition, or if

properties were left out due to mistake, oversight, or other reasons (e.g., properties under
usufructuary mortgage), the partition may be readjusted.

 Reopening of Partition vs. Readjustment: When only minor adjustments are needed due to
discovered property or slight inequities, the partition need not be fully reopened. Instead, a
readjustment can be made without disturbing the entire partition.

Reopening of Partition

A partition can be reopened in the following circumstances:

1. Fraud: If the partition is based on fraudulent schemes (e.g., worthless assets being given as
valuable or non-family property being allotted), it can be set aside unless the injured party
has accepted it with full knowledge of all facts. A partition that is unjust, unfair, or
detrimental to minors' interests may also be reopened.

2. Son in the Womb: If a son is in the womb at the time of partition and no share is reserved
for him, the partition can be reopened to include him.

3. Adopted Son: An adopted son, if adopted after the partition, is entitled to reopen the
partition as if he were a posthumous son, provided he occupies the same legal position. He is
entitled to his share in the property existing at the time of his adoptive father's death, as well
as any accretions to the family property.

4. Disqualified Coparceners: A disqualified coparcener, who recovers from the disqualification

post-partition, can reopen the partition if they were an after-born son.

5. Son Born After Partition: If a son is born to a father after a partition and the father did not
take a share, the partition can be reopened to include the son.

6. Absentee Coparcener: If a coparcener is absent during the partition and no share is allotted
to them, they can get the partition reopened upon their return.
 7. Minor Coparcener: If a partition occurs during a coparcener's minority, they can seek to
reopen it if the partition was unfair, prejudicial, or unjust.

Reunion

Reunion refers to the reintegration of a separated family, typically between specific family members.
According to Hindu law, for a reunion to be valid, the following conditions must be met:

1. Parties to the Partition: The reunion must occur only between those who were part of the
original partition. Reunion is not possible with individuals who were not parties to the
partition.

2. Eligible Relationships: The reunion is valid only between:

o Father and son

o Paternal uncle and nephew

o Brothers

Example Scenarios:

 If a partition occurs between a father (F) and his two sons (A and B), and then a son (S) is
born to F, A or B can reunite with F, but S cannot reunite with anyone since he was not part
of the original partition.

 If a partition occurs between two brothers (A and B), and then A has a son (S), after A's
death, S cannot reunite with his uncle (B) because he was not part of the partition.

Key Points on Reunion:

 Reunion must be strictly proven with clear and convincing evidence, like any other disputed
fact.

 The intention of the parties to reunite must be evident, and there must be an agreement to
reunite. This agreement need not be written but must be clearly indicated through the
parties' conduct.

 Reunion is not possible unless both conditions (parties to the partition and eligible
relationships) are satisfied.

Reunion: How Effected

To constitute a reunion, the following conditions must be met:

1. Intention to Reunite: There must be a clear intention from the parties to reunite in both
estate and interest, meaning they aim to revert to their prior status as coparceners. The
intention must be reflected in an agreement between the parties, which does not need to be
in writing. It can be expressed orally or through conduct.

2. Agreement to Reunite: A coparcener cannot be considered reunited merely by withdrawing

a unilateral declaration to separate. The agreement to reunite must be made, and the
conduct of the parties must clearly show this intention. Mere cohabitation or business
dealings after a partition are insufficient to prove reunion.
 3. Burden of Proof: The burden of proving reunion lies on the person who claims it. Reunion
requires clear and convincing evidence, and possession of joint family property at the time of
reunion is not necessary.

Minor’s Right to Demand Partition

1. Equal Right: A minor coparcener has the same right as an adult to demand partition of the
joint family property (JFP). However, since a minor lacks full legal capacity, this right must be
exercised through a guardian or next friend.

2. Filing a Suit: If a partition is to be sought in court, the minor's guardian must file a suit. The
court must ensure that the partition is in the minor's best interest. A minor can also demand
partition by giving notice through their guardian, but the suit is required when adult
coparceners are unwilling to partition.

3. Effect of Court’s Decision: The partition is considered effective from the date the suit is filed,
not from when the court acknowledges it as beneficial for the minor (as stated in
Pedasubhajya v. Akanamma). If the minor dies during the suit, the legal representatives (e.g.,
the mother) can continue the proceedings.

4. Effect on Minor’s Share: A father’s partition does not automatically affect a minor's share.
The minor’s interest in the property only gets severed upon the partition being carried out
for the minor's benefit, either by suit or notice.

Effect of Reunion

 Restoration to Original Position: When a reunion happens, the parties are restored to their
original position in the family. The community of interest and unity of possession are fully re-
established. This means that the reunited coparceners regain their rights of survivorship and
their descendants born after the reunion are considered full-fledged coparceners.

 Legal Precedent: Under the Mitakshara school, reunion establishes both community of
interest and unity of possession. The Madras High Court clarified that reunited coparceners
are not tenants-in-common but coparceners with rights of survivorship. Their sons are
deemed coparceners with them.

Problem and Answer:

Scenario: Mohan, a coparcener, writes a letter on March 10, 1945, expressing his intention to
separate from the joint family and informs Kumar. The letter is lost, and on March 13, 1945, Kumar
conveys Mohan’s intention to the family. Meanwhile, on March 12, 1945, part of the family property
is attached due to a court decree.

Answer:

 Severance of Status: Mohan's separation from the joint family becomes effective on March
13, 1945, when his intention is communicated to the family through Kumar.

 Doctrine of Relation Back: The severance of status, however, takes effect from the date
Mohan first expressed his intention (March 10, 1945), as per the Doctrine of Relation Back
(as explained in A. Raghavamma v. A. Chenchamma).

 Vested Rights: The attachment of family property on March 12, 1945, creates a vested right
that is binding on all coparceners. Therefore, although Mohan's separation took effect from
 March 10, his share in the joint family property is reduced in proportion to the portion
attached by the court. The attachment, being a vested right, is not affected by the severance.

Religious and Charitable Endowments under Hindu Law

Definition and Concept:

 An endowment is a dedication of property for religious or charitable purposes, particularly

for the benefit of the public or specific sections of it. It includes the advancement of religion,
knowledge, health, safety, and other beneficial purposes for mankind.

 Endowments may involve dedication for the worship of a deity, the maintenance of religious
or charitable institutions, hospitals, schools, alms houses, and idols.

Legal Basis:

 Historically, religious endowments were regulated by customary practices, with laws largely
evolving from judge-made law.

 Gifts for religious and charitable purposes stem from charity and the desire to earn religious
merit. They were categorized into Ishta (sacrifices and sacrificial gifts) and Purtta (charities
aimed at social welfare), with charity regarded as more meritorious than religious
ceremonies.

 The concept of endowments includes both property dedicated to specific religious or

charitable purposes and the governance of such properties.

Creation of Endowments:

1. Eligibility: A Hindu of sound mind, who is not a minor, can create an endowment by gifting or
bequeathing property for religious or charitable purposes.

2. Types of Purpose: The endowment can be made for the worship of a deity, feeding the poor
or Brahmins, performing religious ceremonies, or supporting institutions like hospitals or
universities.

3. Legal Validity: There is no exhaustive list of valid purposes for endowments, but any purpose
lacking public benefit must have a basis in Hindu religious texts (Shastras).

4. Methods of Creation:

o Trust: Property can be transferred to trustees for a religious purpose, similar to a

trust under English law.

o Dedication: The property can be directly transferred to a deity or religious

institution. No formal acceptance by the deity is required.

5. Formal Requirements: While no formal writing is required, unless done by a will, the
property and purpose must be clearly defined, and the founder must divest themselves of all
beneficial interest in the property.

Essentials of a Valid Religious or Charitable Endowment:

1. Object: The purpose must be religious or charitable, aligned with Hindu law, and definite.

2. Unambiguous Dedication: The dedication must be clear and sincere.

 3. Founder’s Capacity: The settler must have legal capacity under Hindu law to create the
endowment.

4. Clarity of Purpose: The settler must specify the purpose and property with precision.

5. Compliance with Other Laws: The endowment must not violate any applicable law.

6. Complete Dedication: The founder must completely divest themselves of any beneficial
interest in the property dedicated.

Hindu Religious and Charitable Endowments Act, 1951:

 Objective: The Act governs the administration of religious institutions and their
endowments, providing for state intervention to regulate and maintain these endowments
for public benefit.

 Public Benefit: Temples and other religious institutions, being founded and maintained for
public benefit, are subject to regulation and oversight to ensure that their activities align
with the public trust and religious purposes.

Different Kinds of Endowments:

1. Public vs. Private Endowments:

o Public Endowment: If the public is allowed to participate in worship, or if the

property is used by the public for religious activities, it is considered a public
endowment.

o Private Endowment: If the endowment is for the benefit of a family or specific

individuals (e.g., worship of a family deity), it is considered a private endowment,
with no public involvement.

2. Real vs. Apparent Endowments: Real endowments are those with clear, legally recognized
dedication, while apparent endowments may lack full legal validity or recognition.

3. Absolute vs. Partial Endowments: An absolute endowment is a complete dedication,

whereas a partial endowment may involve only a part of the property or resources.

4. Religious vs. Charitable Endowments: Religious endowments are those made for religious
purposes, such as worship or temple maintenance, while charitable endowments support
social welfare activities like education or healthcare.

Conclusion:

Religious and charitable endowments play an important role in Hindu law, ensuring that property is
dedicated for religious and social welfare purposes. They must comply with specific legal
requirements, and the founder must have clear intentions for the purpose of the dedication,
ensuring that it benefits the public or specific charitable or religious activities.