DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

(2022-2027)

FAMILY LAW- II

TOPIC: PARTITION UNDER HINDU LAW

SUBMITTED TO: SUBMITTED BY:

Dr. Samreen Hussain Kaushik Das

Assistant Professor (Law) Section: A
Enrollment No.:220101081

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 ACKNOWLEDGEMENT

I have put in effort in this project. However, it would not have been possible without the
kind support of many individuals and mentors. I would like to extend my sincere gratitude
to all of them.

I am highly indebted to Ms. Samreen Hussain for her guidance and constant supervision as
well as for providing information regarding the project and for her support in completing
the project.

I would extend my gratitude to the seniors of my course, who constantly helped me find
the best resources for research.

I would like to thank my parents, siblings and fellow batch-mates for their kind cooperation
and encouragement that helped me in completing this project.

Finally, I would like to acknowledge the authorities as well as the caretakers of Dr Madhu
Limaye Library, who provided me with the means to make this project in the form of
books, computer system, internet access and access to reference materials required to
complete the project.
Kaushik Das

Enrollment No. 220101081

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 TABLE OF CONTENTS

INTRODUCTION...............................................................................................................................4
PARTITION UNDER MITAKSHARA AND DAYABHAGA SCHOOL.......................................5
De Jure and De Facto Partition..........................................................................................................5
ESSENTIALS OF A VALID PARTITION.......................................................................................6
PERSONS ENTITLED TO DEMAND PARTITION.......................................................................6
EFFECT OF PARTITION.................................................................................................................8
PARTITION OF COPARCENARY PROPERTY...........................................................................8
VARIOUS MODES OF PARTITION...............................................................................................9
RIGHT TO DEMAND PARTITION...............................................................................................10
SUIT FOR PARTITION...................................................................................................................11
SUIT FOR PARTITION AND JOINT HINDU FAMILY.............................................11

SUIT FOR PARTITION AND SEPARATE POSSESSION FILED BY MINOR SON

..............................................................................................................................................11

SUIT FOR PARTITION FILED BY WIDOW...............................................................12

EFFECT OF ORAL PARTITION...................................................................................................12

ORAL PARTITION IN A JOINT HINDU FAMILY.....................................................13

SHARES TO FEMALE MEBERS AT A PARTITION.................................................................14

PARTITION AT THE LIFETIME OF THE FATHER.................................................14

A PARTITION CLAIM IS FILED AND THE HUSBAND OR SON`S DEATH

HAPPENS WHEN THE SUIT IS PENDING..................................................................14

WHERE A MOTHER OR WIFE RECEIVES A SHARE UNDER THE HINDU

SUCCESSION ACT ON THE DEATH OF THE HUSBAND OR SON AND
THEREAFTER AN ACTUAL DIVISION AMONG THE COPARCENERS TAKES
PLACE.................................................................................................................................15

CONCLUSIVE ANALYSIS.............................................................................................................15
REFERENCES..................................................................................................................................16

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 INTRODUCTION
Partition, a fundamental concept in Hindu law, refers to the division of property within a Joint
Hindu family to grant separate status to its coparceners. Essential to note is that partition
cannot occur if there exists only one coparcener within the family. A coparcener is someone
who inherits an estate jointly with others.

Within Hindu law, the notion of coparceners is integral to the structure of Joint family
property. Each coparcener holds an equal share in the family's property and retains an
inherent title to it. When a Hindu Joint family opts for partition, its collective status as a
family ceases to exist. However, to maintain a state of jointness among coparceners, there
must be at least two present within the family.

For a partition to be feasible, the property in question must be capable of being partitioned.
Separate property owned by any coparcener within the Joint family cannot be divided. This
principle was established in the case of Mrutunjay Mohapatra v. Prana Krushna Mohapatra,
[AIR 2017 (NOC) 399 (ORI.)], where the court ruled that property purchased by an elder
brother with his personal funds cannot be subject to partition or included in the Joint family
against his wishes.

Similarly, in the case of Prafulla Kumar Mohapatra v. Joy Kanta Krushna Mohapatra, [AIR
1994 ORI 173], the court held that property belonging to a paternal uncle, with no substantial
evidence indicating the claimant's father's share, would be considered separate property rather
than belonging to the Joint Hindu family.

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 PARTITION UNDER MITAKSHARA AND DAYABHAGA SCHOOL
The concept of partition under Hindu law is governed by two primary schools of thought:
Mitakshara and Dayabhaga. These schools offer distinct interpretations of the term 'Partition'
and the procedures involved. In the Mitakshara school, partition extends beyond mere
division of property among coparceners; it signifies a transformation in status accompanied
by a severance of interests. Within the ancestral property, coparceners' shares fluctuate with
births and deaths, diminishing with each new member and expanding with each demise.
Property rights are inherently tied to birth, and succession occurs through survivorship. Thus,
the partition is deemed complete once shares are delineated, obviating the necessity for the
physical division of property.

Conversely, the Dayabhaga school adopts a more tangible approach to partition. Each adult
coparcener possesses the right to demand partition, necessitating a physical demarcation of
their respective shares through metes and bounds. Unlike the Mitakshara school, where the
unity of ownership is paramount, Dayabhaga emphasises the individual's entitlement to
specific, delineated shares. While in Mitakshara, the mere intent to separate suffices to
demand partition, Dayabhaga mandates the physical division of property to fulfil the
coparcener`s rights.

De Jure and De Facto Partition

De Jure Partition: In an undivided coparcenary, all the existing coparceners have a joint
share in the property, and till the partition takes place, none of the coparceners can tell the
exact amount of share that he owns in the property.

Further, due to the application of the doctrine of survivorship, the interests can keep on
fluctuating due to births and deaths of the other coparceners. But, when the community
interest is broken down at the instance of one coparcener or by mutual agreement that the
shares are now clearly fixed or demarcated, such type of partition is known as De Jure
partition wherein there is no scope of application for Doctrine of Survivorship.

De Facto Partition: Unity of possession which signifies the enjoyment of property by the
coparceners may even continue after severance of Joint status or division of community
interest. The amount of shares in the property might not be fixed but no coparceners reserve

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the right to claim any property as falling into his exclusive shares. “The breaking up of Unity
of possession is affected by an actual division of property and is called a de facto partition.

ESSENTIALS OF A VALID PARTITION

It's important to highlight that a coparcener holds the right to request partition from the joint
family at any point, without needing consent from other coparceners. Thus, to initiate the
demand for partition, certain key criteria need to be met:

1. Expression of Intention to Separate: The individual must demonstrate a clear desire

to separate from the joint family.
2. Unambiguous and Individual Declaration: The declaration of intent must be
unmistakable, direct, and made independently, without ambiguity, indicating the
desire to separate from the joint family.
3. Communication of Intent: The intention to separate must be effectively
communicated either directly to the Karta (the head of the family) or to other
coparceners, even in the absence of the Karta.

In essence, for a demand for partition to be valid, there must be a definite intention to break
away from the joint family structure, expressed unequivocally and communicated to the
relevant parties involved.

PERSONS ENTITLED TO DEMAND PARTITION

As per Hindu law, every coparcener of a joint Hindu family is entitled to demand partition of
the coparcenary property. However, every coparcener does not have an unqualified and
unrestricted right for an enforcement of partition.

The persons, who are entitled to seek partition are as follows;

 COPARCENERS:
According to Hindu law, both major and minor coparceners possess the right to claim
a share during partition regardless of their status as sons, grandsons, or great-
grandsons. Coparceners can initiate partition at any time, with or without cause, and
the demand must be legally complied with by the family's Karta. Each coparcener
holds an undivided interest in the property, and partition results in the exclusive
ownership of respective shares.

 FEMALE MEMBERS:

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 Regarding female members, they typically lack the right to demand partition but can
receive their share when the joint family property is divided. The father's wife is
entitled to an equal share to that of a son when partition occurs between a father and
his sons. However, if the father dies without partitioning the property, the wife
receives nothing due to the doctrine of survivorship. A widowed mother and paternal
grandmother are entitled to equal shares as sons and grandsons, respectively, after the
death of the father or sons.

 DISQUALIFIED COPARCENER:
Any coparcener, such as those with congenital deformities rendering them incapable
of enjoying or managing the property, are disqualified from receiving a share during
partition. However, if a coparcener becomes incapacitated after birth, they retain their
interest in the property.

 SONS BORN AFTER PARTITION:

Sons born after partition are classified into two categories: those born or conceived
after partition and those born after partition but begotten before it. Sons conceived
before partition but born afterward are considered in existence at the time of partition
and are entitled to a share. Sons born after partition but begotten before it are entitled
to their father's share but cannot reopen partition for separate property.

 SON BORN OF A VOID OR VOIDABLE MARRIAGE:

Male children born of void or voidable marriages are considered legitimate and have
inheritance rights from their parents. They are treated as coparceners for the father's
property but cannot demand partition during the father's lifetime.

 ADOPTED SON:
Adopted sons are considered members of the joint family after a valid adoption,
acquiring rights in the joint family property from the date of adoption. They can
demand partition and are entitled to an equal share to that of the adoptive father.

 ILLEGITIMATE SON:

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 Illegitimate sons' rights to inheritance vary by caste. In general, they cannot inherit
from the father but can inherit from the mother. Brahmins, Kshatriyas, and Vaishyas
do not regard illegitimate sons as coparceners and deny them a share in the joint
family property, although they are entitled to maintenance from the father's estate.

EFFECT OF PARTITION
A Partition can lead to severance of property or 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. After the partition has happened the fixed number of shares of
every existing coparcener gets defined. 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 coparcener after the partition will be known as his
separate property or self-acquired property.

PARTITION OF COPARCENARY PROPERTY

If an intention is expressed to partition the coparcenary property, then each share of
coparceners becomes clear and ascertainable. It is pertinent to note that once the share of the
coparcener is determined, it ceases to be a coparcenary property. The parties in such an event
would not possess the property as joint tenants but they will possess the property as tenants-
in-common. Tenancy in common is an arrangement where two or more people share rights in
the property.

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 VARIOUS MODES OF PARTITION
Partition by father:

The father under the Hindu Law has superior powers in comparison to the other coparceners
wherein by virtue of his rights i.e. ‘patria potestas’, he can separate himself from the Joint
family and also separate each and every son, including minors by affecting a partition.

Partition by agreement:

Partition within a joint family, where coparceners dissolve their joint status, can occur
through various means, each with its own legal implications and procedures. One method,
known as Partition by Agreement, involves coparceners mutually agreeing to divide the joint
family property according to terms acceptable to all parties. This agreement can be an internal
arrangement among family members, aimed at preserving family dignity and avoiding legal
disputes.

Partition by Suit:

A coparcener files a lawsuit expressing their intention to separate from the joint family
property. Upon filing the suit, the coparcener's status in the property ends, although a court
decree is necessary to determine each party's respective shares.

In the legal case of Jingulaiah Subramanyam Naidu v Jinguliah Venkatesulu Naidu, [2013
SCC ONLINE AP 52], the court emphasized the importance of including all titleholders as
necessary parties in a partition suit to ensure fair proceedings.

Partition by Conversion:

Partition by Conversion occurs when a coparcener converts to a non-Hindu religion, resulting

in the severance of their status within the joint family. However, this conversion does not
affect the status of other coparceners.

Partition by Arbitration:

Another method is Partition by Arbitration, where coparceners appoint an arbitrator to divide

the property according to agreed terms. Such a partition becomes effective upon the
agreement's date.

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Partition by Notice:

It involves communicating the intention to separate to other coparceners. This notice, whether
accompanied by a lawsuit or not, is crucial in effecting the partition.

RIGHT TO DEMAND PARTITION

In a Hindu joint family, there exists a fundamental principle that every coparcener, or
member, has the right to demand a partition of the joint family property. This means that any
member, regardless of their relationship to the head of the family or their status within the
family hierarchy, has the legal entitlement to request the division of the family's assets.

1. Special power of father: One significant aspect of this right to partition is the special
power granted to the father within the family structure. A Hindu father holds the
authority to initiate a partition between himself and his sons without requiring their
express consent. This means that even if his sons do not agree to the partition, the
father can unilaterally decide to divide the family property.
2. Son, Grandson and Great-grandson: Moreover, the right to demand partition
extends to all coparceners who are of legal age and sound mind, regardless of their
specific familial relationship within the joint family. Whether they are sons,
grandsons, great-grandsons, or any other coparcener, as long as they meet the criteria
of being of sound mind and of legal age, they have the right to demand partition. This
demand can be made at any time, and the head of the family, known as the Karta, is
legally obligated to comply with such requests.
3. Daughter: It's important to note that daughters also hold the right to demand partition
within a Hindu joint family. Furthermore, this entitlement extends to other individuals
such as sons in a mother’s womb, adopted sons, sons born after a void or voidable
marriage, and even illegitimate sons. This means that regardless of their gender or the
circumstances of their birth, these individuals have the legal standing to request a
partition of the joint family property.

In the case of Pachi Krishnamma v. Kumaran, [AIR 1982 KERALA 137], the court stated
that the daughter claimed his share as equal to the son in the partition of joint family property,
but she failed to prove her customs which says that a daughter can get an equal share as to the
son. But after the amendment of 2005 in Hindu Succession Act, it gave the power that a

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daughter has the right to ask for partition and can claim an equal share as to the son in the
partition of joint family property.

In the instant case of Danamma Suman Surpur & Anr. V. Amar & Ors, [AIR 2018 SCC 721],
The Hon`ble Supreme Court of India held that, Daughters have equal rights in ancestral
property, even if they were born before enactment of Hindu Succession Act.

4. Minor Coparcener: In cases concerning the partition of property involving a minor

coparcener, the determining factor lies in whether such partition serves the minor's
benefit or poses a threat to their interests. Notably, the court holds the discretion to
determine whether a particular situation aligns with the minor's best interests.
According to Hindu Law, if a minor possesses an undivided share in a Joint Family,
the Karta assumes the role of guardian for the minor. However, regarding the right to
demand partition, both minors and adults share similar entitlements. A minor retains
the right to initiate a partition claim, facilitated through their guardian. Nevertheless,
if the court deems that such a claim doesn't serve the minor's welfare, it reserves the
authority to dismiss the suit. Thus, the court bears the responsibility of safeguarding
the minor's rights and interests while administering justice.

SUIT FOR PARTITION

SUIT FOR PARTITION AND JOINT HINDU FAMILY
The court ruled that the plaintiff, who claimed ownership of a disputed property allegedly
purchased with joint family income, failed to provide substantial evidence supporting this
claim. Conversely, the defendant, the plaintiff's brother, successfully demonstrated through
convincing evidence that the property in question was acquired using his personal income
and resources, without reliance on joint family funds.

Additionally, the court emphasized that the mere fact of family members residing together in
the same property does not automatically imply the existence of a joint family nucleus for
income purposes. Such a presumption can only be established through concrete legal
evidence. Therefore, the court concluded that the plaintiff's lawsuit lacked merit and should
be dismissed.

SUIT FOR PARTITION AND SEPARATE POSSESSION FILED BY MINOR SON

When a lawsuit was initiated by a minor son for partitioning a property, it was initially
undisputed that both the Karta (manager) and his son were entitled to equal shares of the

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property. However, later it was discovered that the Karta had sold a portion of the property
without the consent or knowledge of his minor son.

Subsequently, it was determined that in the event of the property being partitioned between
the parties, the portion already sold by the Karta could not be allocated to his intended share.
Therefore, it was reasoned that the sale in question wouldn't cause any direct harm to the
minor son's entitlement, as he wouldn't be deprived of a portion that was already sold off.

Consequently, it was concluded that the order in question, which held the sale as valid, was
deemed appropriate and didn't necessitate any further intervention or modification.

SUIT FOR PARTITION FILED BY WIDOW

If at all a suit is instituted by a partition i.e. a member of Joint Hindu Family, all the
coparceners have to be made parties to it, as defendants. Further, wherein the partition is
sought between the branches, then only branches who are representative parties shall be made
parties to the suit. It is imperative to note that all the females in the family are entitled to get
the share at the time of partition. Or a purchaser of a coparcener`s vested interest can also be
implicated as defendants.

In the case of Jingulaiah Subramanyam Naidu v. Jinguliah Venkatesulu Naidu, [2013 SCC
ONLINE AP 50], In this instance, the opposing party filed a request for a partition of the
property, using their joint family properties as their justification for not being named as the
property's official titleholder. The top court so decided that the titleholder had to be included
as an essential party in any partition of a specific piece of property.

EFFECT OF ORAL PARTITION

In Ram Charan Sharma v. Suresh Chand Pathak and Others, [2007 SCC ONLINE RAJ 208],
The trial court recorded a significant finding regarding a disputed property, stating that before
her demise, the deceased verbally divided the property equally between her two sons in the
presence of her husband and sons. Despite this, the husband contested the division, claiming
one-third of the property for himself. However, his claim was dismissed because he failed to
testify in court that no partition had occurred during his wife's lifetime. Consequently, the
court ruled that he was not entitled to a one-third share as the property had already been
partitioned, and oral partition is recognized under Hindu Law.

Furthermore, within the same legal case, it was noted that the deceased had verbally divided
the property equally among her sons in the presence of her husband and sons. However, the

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husband's claim for a one-third share was rejected because he did not file a separate suit or
counterclaim requesting such a decree from the trial court, along with the necessary court
fees. As a result, he was deemed ineligible to appeal against the partition decree favoring his
sons.

In another scenario where it was undisputed that the property in question belonged to the
joint family, and a document regarding partition was created after the initiation of the oral
partition, it was clarified that such a document does not require stamp duty or registration. In
cases of oral partition, the vested interest in the specific property is created by the oral
agreement itself, not by any subsequent documents. These documents can only serve as
evidence of the severance of joint family status.

ORAL PARTITION IN A JOINT HINDU FAMILY

It is pertinent to note that, In cases where a joint Hindu family has undergone an oral
partition, where the land has been formally divided among the father and his sons, and this
division has been appropriately documented in revenue papers, subsequent arrangements
such as the father choosing to reside with one of his sons, particularly the eldest who may be
responsible for his care and sustenance, cannot be automatically construed as a reunion of the
family.

The act of the eldest son or any other son taking care of their aging father is not just a familial
obligation but also a pious duty deeply ingrained in Hindu tradition. Hence, the mere
provision of sustenance and care to the father, along with the management of the land allotted
to him, does not signify a reconstitution of the joint family.

To establish a reunion, there needs to be a clear agreement, either explicit or implied, among
the family members, which can be inferred from the circumstances surrounding their living
arrangements and interactions. Moreover, the burden of proving such a reunion rests upon the
party making the claim. Therefore, merely residing with the father, providing for his needs,
and managing his land does not automatically constitute a reunion, nor does it justify the
exclusion of other brothers from inheriting their father's property. In the event of the father's
demise, all sons would be entitled to an equal share of his estate, unless there is concrete
evidence demonstrating a formal reunion of the family.

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 SHARES TO FEMALE MEBERS AT A PARTITION
The distribution of shares to female members within a Mitakshara coparcenary partition has
sparked significant ambiguity and skepticism, particularly following the implementation of
new legislative acts aimed at codifying laws pertaining to succession, adoption, and
maintenance. Much of the confusion stems from the partial codification of Hindu Law. While
the legislature took steps to codify aspects of Hindu law related to marriage, succession,
adoption, and maintenance, it notably refrained from altering the law of partition and
overlooked opportunities to amend it. Despite this, Section 6 of the Hindu Succession Act
introduces provisions for the preservation of coparcenary rights under Mitakshara, thereby
extending succession entitlements to female members belonging to Class I of the Schedule, or
to male members who derive their claims through such female members.

PARTITION AT THE LIFETIME OF THE FATHER

a) Taking a liberal perspective, the entitlement of a wife to a portion upon partition while
the father is alive stems from her joint ownership in her husband's property.
Consequently, it's argued that she should indeed receive a share during the father's
lifetime.
b) Even if one were to argue that such entitlement is akin to maintenance, there is no
explicit or implicit provision within the familial context that denies her this share
during the father's lifetime. Furthermore, the protection offered by Section 22(2) of
the Hindu Adoptions and Maintenance Act, 1956, which pertains to maintenance post-
property devolution, does not apply here. Thus, a paternal grandmother's entitlement
to a share among grandsons during partition remains unaffected.

A PARTITION CLAIM IS FILED AND THE HUSBAND OR SON`S DEATH

HAPPENS WHEN THE SUIT IS PENDING
a) If a preliminary decree has already been issued in the dispute over partition, then she
will have the right to claim both her share resulting from the partition as well as her
inheritance share.
b) If the succession process begins after a partition lawsuit has been initiated but before
the preliminary decree is finalized, the matter should be regarded as undecided.
However, the most favorable interpretation would be that she retains entitlement to
her share.

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WHERE A MOTHER OR WIFE RECEIVES A SHARE UNDER THE HINDU
SUCCESSION ACT ON THE DEATH OF THE HUSBAND OR SON AND
THEREAFTER AN ACTUAL DIVISION AMONG THE COPARCENERS TAKES
PLACE
The entitlement of a woman to inherit a portion of her father's estate upon his demise was
nullified by the introduction of the 1937 Hindu Women's Rights to Property Act. However,
when the Hindu Women's Rights to Property Act of 1956 was repealed, it cannot be inferred
that the Hindu Succession Act automatically reinstated the mother's inheritance rights, unless
explicitly stated in the legislation. The allocation granted to a mother during the division of
assets subsequent to the father's death is construed as a form of sustenance. With the Hindu
Adoptions and Maintenance Act formalizing the legal framework and granting specific rights
to mothers, any pre-existing regulations should be deemed obsolete if they persist.

CONCLUSIVE ANALYSIS
The current procedure for partition under Hindu law requires some adjustments to ensure a
smoother process. The paper highlights several discrepancies regarding the filing of partition
suits and the implications of oral partitions. Additionally, it argues for the recognition of
female rights in partition cases, citing instances where the rights of mothers and daughters
have been overlooked.

Partition, as per Hindu law, involves the division of property among members of a joint
Hindu family, resulting in the termination of their joint status and shared possession. There
are primarily two schools of thought governing partition: the Mitakshara and Dayabhaga
schools. Mitakshara allows for partition by branch or by stripes, while Dayabhaga only
permits partition after the death of the family's Karta, without the concept of coparcenary.

In essence, partitioning marks the conclusion of a Hindu joint family, converting joint family
property into individual coparcener's self-acquired property according to their shares. This
process can involve delineating land boundaries, severing familial ties, or both. Ultimately,
partitioning signifies the end of joint status within a Hindu Undivided Family.

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REFERENCES
 https://blog.ipleaders.in/critical-analysis-partition-hindu-law/
 https://www.legalkart.com/legal-blog/partition-of-property-under-hindu-law
 https://www.linkedin.com/pulse/partition-hindu-joint-family-property-edge-law-
partners/
 https://ncwapps.nic.in/acts/TheHinduSuccessionAct1956.pdf
 https://www.ezylegal.in/blogs/know-all-about-hindu-law-of-inheritance
 https://www.iilsindia.com/study-material/112019_1646647119.pdf
 https://www.markercontent.com/articles/family/the-minor-and-partition-under-hindu-
law-183673

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