MODES OF PARTITION UNDER HINDU SUCCESSION LAW

INTRODUCTION

Partition means bringing joint family status to an end. It is a division of joint family property, i.e., coparcenary property. Under Hindu law, a joint Hindu family means a family which consists of two or more generations living together under the same roof and related to each other mostly through the paternal side. The eldest member of the family is the head of the family who enjoys supreme authority over the family, and all the major decisions relating to family are taken by him. All other family members residing with him refer under Hindu law as coparceners. Under the Dayabhaga school, coparceners already have ascertained and specified shares, so the property division takes place by such shares. On the other hand, under Mitakshara school, unlike Dayabhaga School, coparceners do not have ascertained and specified shares; in this school division of property does not only divide the property into specified shares but there is also the partition of status or severance of status or interest.

MODES OF PARTITION[1]

A partition can be made by any family member making a clear declaration of their desire to be separated from the rest of the family. If the partition is done after the declaration, it amounts to a split of status, regardless of the mode utilized. The partition can be affected by a suit, by referring the dispute over property division to arbitration, or by a demand for a portion in the properties. It can also be affected by a property division agreement, etc.

Partition by Suit: Partition suit – When a member of a joint Hindu family files a petition, it amounts to an unmistakable declaration of intent to separate. As a result, severance of status happens on the date the suit is filed rather than on the date of the decision. A court order does not affect partition. Even if such a lawsuit were to be dismissed, the split in status would still be presumed to have occurred. There is no severance of status if the suit is withdrawn before trial due to the plaintiff’s lack of desire for separation (‘before trial’ means before the summons is served on the defendants, i.e., before the communication of intention).

Partition by Agreement: The partition can also be initiated through an agreement. The agreement may be oral or written. The intention of separation must be expressed. The severance of status occurs on the date the agreement is signed. A written agreement that describes what transpired does not need to be registered. However, if the agreement divides properties, registration is required. The Privy Council stated in “Approver v. Ram Subba Iyer[2] that no coparcener can claim any defined share in joint family property, but where the coparceners agree that each member will have a specific and defined share in the future, the joint status is affected and each coparcener acquires the right to separate his specific share and use it to the exclusion of others.”

Oral Partition: Partition may also be effected orally. There is no law requiring that partition must be effected by written instruments and oral partition can be validly done. According to the “Privy Council in Rewan Prasad V. Mst. Radha[3], it was acknowledged that a written document is not necessary for the purpose of making partition of property.”

Unilateral Declaration: Another mode of effecting is by unilateral declaration. This partition is done when any of the coparceners makes a declaration of his intention to partition the joint family property. But there should be clear and unequivocal intention to partition and the intention must be communicated to all other coparceners. “It is settled law that a member of a joint Hindu family can bring about a separation in status by a definite declaration of his intention to separate himself from the family and enjoy his share in severalty by a definite declaration of his intention to separate himself from the family,” the Supreme Court said in “Raghvamma v. Chenchemma[4].”

Partition by Arbitration: The partition can also be done by appointing an arbitrator. Members of the joint family may agree to the appointment of an arbitrator for the purpose of dividing joint family property. When all of the coparceners jointly refer the issue of the partition of their shares to an arbitrator, it expressly indicates that they intend to separate from joint status. Even if no award is given in such cases, their intent is not lost.

Partition by Conduct: The partition can also be done through conduct. But the conduct should be clear and unequivocal. What conduct will amount to severance of status will depend on the facts and circumstances of each case. For instance, separate income and expenditure, separation of food, separate enjoyment of the property, etc., are some examples when conduct may amount to partition.

Partition by Will: A will, also known as a testament, is a legal document in which a person, known as the testator, states their desires for how their property should be dispersed after they die and names one or more people, known as the executors, to administer the estate until its final distribution. Coparceners can divide their property by writing a will. The will must state clearly and unequivocally that he wishes to be separated from the joint family.

Partition by Notice: The partition can also be done by serving Notice to other coparceners. The most significant feature of partition is the intention to separate, which must be declared to other coparceners. As a result, a notice to the coparceners, whether or not accompanied by a suit, may be sufficient to achieve partition.

Partition by Father: The partition can also be one by the father; even if the sons do not consent, the father has the power to separate them. It’s a remnant of the ancient “Patria Potestas” concept. According to Hindu law, the father has the authority to divide his property at any moment throughout his lifetime, and his sons are bound by it. It would bind the sons not just because they agreed to it, but because the father does have the authority to do so, but that authority is restricted by the utility of the authority and the family’s overall interests. It must be assessed whether or not it is legal in the spirit of Hindu law.

CONCLUSION

Partition is a legal concept in Hindu law that is governed by two schools of thought: Mitakshara and Dayabhaga. Partition in a Hindu family denotes the end of the status of jointness and the division of property among the family members. The division can take place in a variety of ways, including via agreement, arbitration, notice, will, and so on. In Mitakshara School, division may occur by stripes or by branch; however, in Dayabhaga School, partition occurs only after the death of the karta, and there is no concept of coparcenary in Dayabhaga School.

Author(s) Name: Mohit Sharma (Vidyasthali Law Collage)

References:

[1] Dr. Paras diwan, Modern Hindu law.

[2] Approver v. Ram Subba Iyer [1866] 11 M.L.A. 75.

[3] Rewan Prasad V. Mst. Radha [1856] 4 M.L.A. 137.

[4] Raghvamma v. Chenchemma 1964 S.C. 136.

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