PARTITION Under Hindu Law

Introduction

Partition means a division of joint family property within two or more parts is known as partition. .i.e coparceners property, the individual property is not subject to the partition. It is a process by which joint family ceases to be joint family, and nuclear family come into existence. And automatically by law the joint status of the family come to an end.

For example: –  ‘x’ ‘y’ ‘z’ are three brother in a joint hindu family, and their three sons ‘XS’ ‘YS’ ‘ZS’. If three brothers partition, their sons not partitioning from them it will come into existence of three joint family consisting of ‘X’ and his son ‘XS’, ‘y’ and his son ‘YS, ‘Z’ and his son ‘ZS’.

 

Sources of Hindu Law:

There is the two-fold classification of the source of the Hindi Law

• Ancient sources
• Mordern Sources

Ancient Source –

It is further classified into 4 categories

1) Shrut Smriti

2) Customs

3) Smriti

4) Digest and commentaries.

 

Shruti:- The term Shruti means what has been heard. It contains sacred words of god The four vedas Rig, Sama, Yajur and Atharva veď as as well as 108 Upanishads are known as Shruti.

Smriti: Smriti are considered as text which has been remembered and then interpreted by the rishis throughout the generation.

Customs: Customs is the tradition that has been practiced in Society since ancient times. It is the type of practice which is the Continous observation of the people has been followed by people

Digest and Commentaries: It played a very major role in developing the very concept of Hindu law.
It helped in the interpretation of the smriti Single interpretation of smriti is called as different interpretations of the smritis is known as digestive commentary while Dayabhana and Mitakshara are considered to be the two arost important commentaries.

 

 

 

 

 

 

Mordern Sources:

Judicial Decisions: Judicial decision is considered to be authoritative and binding. The doctrine of precedent was established and I was cases resembling the same faits and circumstances of a case already decided. applied in the

Justice equity and good conscience: It is a basic rule of law This rule is considered to be the fairest and reasonable option available to person.

Schools of Hindy Law:

The two major schools of Hindu haw are as follows:

• Mitakshra
• Dayabhaga

Mitakshra– (It oves its name from Vijanashwar Smriti)

Salient features of Mitakshra School:

1) A Son [mow daughter also after the commencement Hindu “Succession (Amendment) Act, 2005] has an interest im the ancestral property since birth and is a coparcener such property along with his father.

 

2.) Father has restricted power of alienation of the joint family property and the son (or daughter) can claim partition at any time.

 

3) Mitakshara school of Hindu law is practiced in all States of India except Assam and West Bengal

 

4.) Mitakshara is believed to be written between 1055.CE and 1126 CE by Vijmanesvara. Some of the most important chapters of Mitakshara include property rights, property distribution and inheritance

 

5.) Mitakshara considers only the male members of the family under the joint family system.

 

6.) The rule of survivorship was applied for the devolution of interest in coparcenery property. It has been now abolished by Hindu Succession (Amendment) Act, 2005.

7) The principle of inheritance under the Mitakshara law u consanguinity.

 

8) Acc to school “Sapinda” relationship is one between persons through If one body their being connected arising by particles of one body.

 

Mitakshara School is further divided into five Sub-schools:

 

1. Benaras School – This school prevails in whole North Indie including Orissa ‘but not Mithila and Punjab Mitakshara Viramitrodaya are some of the important commentaries of this school.

 

2. Mithila School – This school prevails in Tirhoot and North Bihar. Vivada Ratanakar and Vivada Chintamani are some of authoritative commentaries of this school.

 

3. Madras School – This school governs the whole of the Madras state Some authoritative commentarer are- Smriti Chandrika, Vajayanti.

 

4. Bombay School – This school prevails in almost the whole of the state of bombay including Gujrat and Kamara Vyarhara Mayukha and Nirmaya sindhu are some of its authoritative work.

 

5. Punjab School – It prevails in parts of East Punjab. It is mainly governed by customs Mitakshasa and Viramitrodaya are some of it’s important commentaries.

 

 

 

Dayabhaga  School:-

Silent features of Dayabhaga School are:

1. The son has no interest in his father’s property by reason of his birth and right to property , by reason of his birth and right to property arises by death of the last owner.
2. Father has absolute power of alienation over all the property, whether ancestral or self-
3. The interest of every person passes by inheritance on his death to his heirs
4. Any member of a joint family manner con alienate in his share even when undivided. 6.)

 

Partition :-

The concept of partition under Hindu law is mainly regulated by 2 schools  i.e. Mitakshara and Dayabhaga. Partition means the end of joint status of Hindus undivided family.

 

Under Mitakshara school

*Partition does not simply mean division of property into certain or specific shares amongst the Coparceners, but it actually meant a division of status along with severance interest.

 

* In Mitakshara school there is no demarcation. of property into specific shares, and essentials a coparcener need to be established but the existence of joint property is not an element for demanding partition. essential

 

*All it takes to demand a partition is a and unequivocal declaration that Conveys Intention of separating from the family.

 Under Daya bhaga School

 

In this school every adult coparcenes reserves a right to demand partition by the physical demarcation of his shares. Such partition must be in accordance with the demarcation of specific shares of partition i-e partition by mets and bounds.

 

 

Essentials of a valid Partition –

 

A coparcener reserves a right to demand partition at any time without the consent the other coparceners.

• There must be an intention to separate from “the joint family.

 

• There must be a clear, unequivocal and unilateral declaration which conveys the intention to separate from the joint family.

 

• The intention must be communicated to the karta or to other coparcener in his absence.

 

Persons entitled to demand Partition –

 

Every coparceners of a joint Hindu family is entitled to demand partition of a coparcenary.

 

• Coparceners:

 

Acc. to Hindu law both a major and minor coparcones have a right to get a share during the partition irrespective of whether they are demanding a partition as Sons, Grandsons, great grandsons A coparcener can make a demand for partition anytime with or without reason. Here, all the coparceners have an undivided interest in the property and through a partition, the title is divided amongst them, thereby leading to exclusive ownership. In the case of minor, the only condition has to be considered for demanding partition is that ; the suit for partition has to be filed the minor On behalf of the minor.

 

 

• Female Members :-

Female members in this regard comprise of 3 types of females i.e.

1) the father’s wife

2) the widowed mother

3) the paternal grandmother.

Generally the female sharers do not have right to ask for a Car partition, but they get their share when the joint family property is actually being divided after partition. As far the father’s wife is concerned when a partition occurs between father and his son, the wife is entitled the go get an equal share to that of a son irrespective of the fact when the partitions affected by the father or of a son. S.2.3 of the Hindu Succession Act 1956 postpone the right of female heirs to claim partition. until male hay choose to divide their respective shores therein. Prior to the 2005 amendment in HSA only male members descended from a common Ancestor such as son, grandsons and, great grandsons could be coparceners and had An interest by birth in coparcenay property. However now, by virtue of the amendment of the HSA, Such discrimination has been removed and a daughter of a coparcener shall:

(1) By birth become coparcener in the same as son,

(2) Have some rights in the coparcenary property as She would have had if she had been son.

(3) Be subject to the some liabilities in respect of the coparcenary property as that of a son.

(4) Be entitled to demand a partition of the HUF.

Case-

Prakash & Ors. v. Phulavati & Ors.

It was held that the amendment to the HSA a prospective and is applicable for a living daughter of a living coparceners, irrespective of daughter born provided that any When such daughter was born provided that any disposition or alienation including partitions which may have taken place before 20 Dec. 2004 as per law applicable prior to the said date will remain unaffected.

Effect of Partition:-

 

*A Partition can lead to severance of property separation of property in a joint family.

 

*After Partition, a person is considered as free from his rights, obligations, duties and responsibilities arising out of a joint family.

*Moreover, post-partition since the number of shares has been fixed the fluctuations that happen in a family due to births and deaths stops.

*And the property which has been acquired by the coparceners after the Partition will be known as his separate property or self-acquired property.

*In case of death of separated member his shares devolves by heirship and not by survivorship.

 

Various modes of Partition:-

• Partition by father

The father under the hindu haw has superior powers in comparison to the other coparceners wherein by virtue of his rights i.e. patria potestas he can separate himself from joint family and also separate each and every son, including minors by affecting a partition. However such partition must be done in good faith.

• Partition by Will

Coparceners through a will can intimate his desire to separate from a joint family. He can make will and declare hy desire to separate. Mitakshara coparceners after the addition (S. 30) in the Hindu Succession Act, 1958 can how make a testamentary disposition of his shares in the joint family.

• Partition by agreement

Partition where all coparceners jointly agree for the partition. The court does not have the power to recognize any partition under there is an agreement between the parties on mutually agreeable terms. Moreover, a Partition agreement internal arrangement among wherein the rights are compromised in order to keep the dignity of the family. Once the agreement is entered Severance of status begins.

Case

In Approver v. Ram Subha Iyer

It was Observed that no coparceners can claim any defined share in the property but where the an coparcener enters into an agreement to that every member will have a specific and define share the joint status is affected and the coparcener acquires right to separate specific share and use the same.

 

• Partition by Suit

The most common way to express the intention to separate himself from the joint family property is filing a suit in the court. As soon as the plaintiff expresses thus unequivocal intention to get separated in the court, his Status in the joint family property comes to an end. However a decreee from the court is required which decides The respective Shares of the coparceners Both minor a major coparcener may approach the count for his purpose.

 

Re-opening of Partition:-

The Hindu Law, after the partition has made it possible to re-open the partition or revoke the partition.

In the case of Mistake, Absentee, Coparcener, fraud, Son in womb, son conceived and born after partition and the additional property after the partition can be re-opened in accordance to the Hindu Law.

 

• Mistake I all the members of the joint family have left their joint family properties. by mistake and are left out of the partition, To some property that does not belong to the family is wrongly alloted to a coparcener In this start scenario partition be re- -opened.

 

• Fraud – Any partition can be revoked which is done because of the fraudulent activities I as fraud and in such cases, -unfair advantage over another coparcener the partition can be re-opened by coparcener who have knowledge of suck grand.

 

• Disqualified – Such coparcener generally unentitled to share because of certain disqualifications. He now reserves a right to get the partition removed by removing disqualification

 

• Son in womb: If a a son is in womb, and no Shares were alloted to him, at the time of partition then later it can be re-opened.

 

• Absentee :- If any coparcener is absent diving partition Separate shares are provided to him. Where he Separate sharer are provided at the time of partition to the absentee He can reopen the partition.

 

• Adopted son: As per (S-12) of Hindu Adoption and Maintenance Act, 1956 adopted son and natural bow has the Same rights Hence, adopted Son is entitled to reopen the partition

 

• Minor: Where minor has been given no share and when a partition mode during the minority the applicant was unfair to his interest. He can re-open the partition.

 

 

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.