Introduction :
The word partition enumerates end of joint nature of a Hindu family. Partition may be done by agreement, arbitration or by suit held in Nanak Chand v. Chander Kishore, 1982 del 520. After partition the joint family may be divided into nuclear families or different joint families, but they together can’t be remain as a joint family.
Under the Dayabhaga school on partition, coparceners entitled specific shares upon division of property. But in the Mitakshara school, partition not only emphasizes specific shares upon division of property, status, severance of status, interest also subject to be divided. In Mitakshara school there are two meanings of the term partition, these are :
(i) Division of interest or status, and
(ii) Partition of property by shares, also known as partition by metes and bounds.
Property which can be divided :
It was held in Murugesa v. M. Sadayappa 1997 Mad 4 that in ordinary course, coparcener who wants to divide the property, has to prove the existence of joint family property if other coparceners are not seeking partition. If any property in which a joint family is in position, as a permanent leassee such property can also be partitioned. Such property can be partitioned if there is any cancellation clause on such lease agreement.
Property which can not be divided :
Dress, vehicle, ornaments, pastures, dwelling house, garden, utensils, right to way, staircases, wells, tanks, property for pious use and sacrifices etc. are indivisible. Ordinarily value of these items increases, there are two types of adjustment which we can see from the Digest writer and commentators explanation regarding such types of properties :
(i) Properties like wells, bridges, temples and idols can be enjoyed jointly or turminaly.
(ii) Properties which are eligible to sold, and sale proceeds can be shared by all coparceners.
(iii) Properties which may be allotted to one or several coparceners, and other coparceners will get it’s equal valued properties.
Persons with Right to Partition and share :
A daughter is also a coparcener having right to ask for partition after the Amendment Act of 2005. As per the general rule, each coparcener has a partition right in both of Mitakshara and Dayabhaga school. Except daughter no other female coparcener has right to partition. On partition following female members have right to share as they are coparceners, they are as follows: Father’s wife, mother and grandmother. “Under the Hindu Succession Act, when a coparcener’s interest devolves by Succession by virtue of the application of Section 6, widow, daughter, mother, predeceased son’s daughters, and widow, predeceased son of a predeceased son’s widow and daughter, pre-deceasd daughter’s daughter are the females who are entitled to a share, and they can get their share demarcated by partition.”- Dr. Paras Diwan, Modern Hindu Law. Right to partition also available to an coparcener who has opted alienation.
General rule is that each coparcener has right to partition but except in following cases : (i) unqualified coparcener and (ii) according to Bombay school, sons are bared from asking partition against their father if their father is joint with his father.
Persons have right to partition under the Mitakshara school :
Right to partition of a father :
In Mitakshara school father’s right to partition is recognised as superior that the others. But in Dayabhaga school father is considered as absolute owner of his properties, so in his lifetime no one has right to partition against his properties, although he can distribute his wealth among his family members during his lifetime.
Right to partition of son, grandson and great grandson :
As per Dayabhaga school, father and his lineal male descendants i.e sons, grandsons, great – grandsons can not ask for partition to their lineal ascendants.
But in Mitakshara school, sons, grandsons and great-grandsons have a right to partition.
In Bombay school if the father is living in a joint family with his father, brother or other collaterals son has right to partition after assent from his father. We can refer here Narayan v. Arjun, 1986 Bom. 122.
Right to partition of a son born after partition :
Various Smritikars have different opinion regarding right to partition of a son born after partition. As per Vishnu and Yajnavalkya, re-opening of partition for determination and provide with of share of after born son has to be done. But Gautama, Manu, Narada and Brihaspati in the opinion that after born son has right to partition of his father’s property only. But according to Mitakshara school, we have two rules; one for the son who was in the womb when partition taking place, and the other for the son who has come into the womb after partition. Now we will discuss the rules regarding partition for these two types of son :
Son/daughter who was at the womb when the partition taking place:
According to texts, if existence of child in the womb of mother is known the partition should be postponed til the child born. A share equal to the share of a son should be reserved for the child in the womb if the coparceners do not wants to wait till the child born. Now if the child who will take birth is a son then he can take his share, but if the child who will take birth is a girl then from her share provision for her marriage also should be made. In Yekayamain v. Aganiswarian, (1870) Mad. H.C.R. 307 it was held that son can demand to reopen of the partition after his birth, if no share is allotted for him. ” If pregnancy is not known and consequently no share is reserved, then also the redistribution of
the estate should take place after after the birth of the son. In such a case also the after-born son can get partition re-opened. This rule applies to partition between father and sons.” Dr. Paras Diwan, Modern Hindu Law.
Son begotten and born after partition :
On that scenario Mitakshara’s general rule will be applicable. There are two situation which may be arises :
(a) the father has taken his share in a partition and (b) the father has not taken any share.
(a) When the father has taken his share, the son who takes birth after partition may ask for his share from father’s property.
(b) When the father has not taken his share, the son who takes birth after the partition has a right to re-opened the partition and get his share, held in Chennagama v. Munisami, (1897) 20 Mad 75.
Adopted son :
Various school of thought, assign different types of shares for adopted son. These are as follows :
(a) In Bengal he takes 1/3 of the share of biological son.
(b) In Benares he takes 1/4 of the share of biological son.
(c) In Bombay and Madras he takes 1/5 of the share of biological son.
Son of void marriage or annulled voidable marriage :
It was held in Rasala v. Rasala 1992 AP 234 that within the term coparcener, son of a void marriage or annulled voidable marriage does not come.
Illegitimate son :
Illegitimate sons divided into two categories :
“(a) The Dasiputra, or a son born to a concubine (avarudha dasi) exclusively and permanently kept by a Hindu, and (b) an illegitimate son born of a woman who is not a dasi.” Dr. Paras Diwan, Modern Hindu Law.
Both categories of illegitimate son can’t ask for partition or entitled to a share in partition because he is not a coparcener.
Daughter’s right to partition :
Due to ammendment on 2005 daughter can ask for partition. In Rajamani v. Malliga 2018 Mad 208 it was held that daughter has a right to partition with son of second wife.
Persons who are entitled to a share if partition takes place :
There is certain category of members in the joint family those who have not any right to ask for partition but, they have right to share if any partition takes place. There three members in a joint family who falls under this category, these are : father’s wife, mother and grandmother. There are certain pre-conditions which have to be followed, these are :
According to Dravida school, females are not entitled to a share on partition held in Subramanian v. Arunachalam, (1950) 28 Mad. 1. (FB).
If a share on partition is given to father’s wife or widowed mother inspite of receiving stridhan from her husband or father-in-law, then her share will be deducted with an equal amount of stridhan received by her held in Gopal v. Durga Prasad 1971 Delhi 61.
Whenever a partition will takes place, the entitled female’s share will be vested on her, even if no share is allotted to her.
Father’s wife :
Under Mitakshara school if a partition takes place between a female’s husband and her husband’s son then she is entitled to a share equal to the share of her husband’s son. If more than one wife is there then each wife is entitled to a share equal to the share of a son. On non-allotment of any share to her she has right to get the partition re-opened held in Radha v. Pandhari, 1941 Nag. 135. But under Dayabhaga school she don’t has such right.
Mother :
Under Mitakshara school after the death of father if partition takes place among the sons then the mother including stepmother is entitled to a share. But under Dayabhaga school, if partition takes place a childless stepmother is not entitled to a share held in Gopal v. Durga Prasad, 1971 Del, 61.
Grandmother :
It has been held in Pratapmull v. Dhanpat, 1973 P.C.21 that under the Mitakshara school, if partition takes place then paternal grandmother and step-grandmother are entitled to a share in the following situations :
- When partition takes place among grandsons of a female after death of her son, then a share equal to the share of a grandson is entitled for such female held in Kanhaya Lal v. Gaura, 1925 All.
- When between son and sons of a predeceased son of a female partition takes place, a share equal to the share of a grandson she is entitled held in Babuna v. Jagat, 1928 All. 330.
- When between sons and their sons a partition takes place, then according to the Allahabad and Bombay High Courts( Joti Ram v. Ram Chandra, 1941 Bom. 382) such a female is not entitled to the share, but she is entitled to the share equal to the share of a grandson according to the Calcutta and Patna High Court[Badri v. Bhagwat, (1882) 8 cal. 649.
Presumption regarding possession of joint property by daughter :
It has been held that in L H Vidyapooran v. L.H. Premavathy, AIR 2005 Mad that suppose a daughter was not in possession of any property and other heirs are in possession of their father’s property then it should be presumed notionally that the daughter was in possession and enjoyment of joint family property.
Conclusion :
Partition of properties among legal heirs is a very progressive concept. Although keep a family undivided is very much desirable as it will strengthen the co-operative nature among humans. If we see that in a country being a middle class or lower middle class dominated population, able to maintain a good number of joint families then surely it will be a country with social awareness and unity among the people. For example we can refer some socialist countries of Latin America. On the other hand richest persons of the world also come from joint family. Partition does not ends the unity of a joint family in the sense of philosophical or ideological nature, but right to alienation is actually main catalyst behind the nuclear nature of families.
References:
Dr. Paras Diwan, Modern Hindu Law ( ALLAHABAD LAW AGENCY, 2023 ).
Dr. S.R.Myneni, Hindu Law (ASIA LAW HOUSE, 2023).
Sir Dinshaw Fardunji Mulla,Satyajeet A Deshai, Hindu Law ( LEXIS NEXIS, 2022 ).