Partition :-

Partition means bringing the joint status to an end. On partition, the joint family ceases to be
joint and nuclear families or different joint families come into existence. There are members
of the joint family who can ask for partition and are entitled to a share also. There is another
category of the members of the joint family who have no right to partition but, if partition
takes place, they are entitled to share. A reunion can be made only between the parties to
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.
PARTITION UNDER SCHOOLS OF MITAKSHARA AND
DAYABHAGA
 Dayabhaga school: In a Dayabhaga school, every adult coparcener has the
right to demand partition by physical demarcation of his shares. Partitioning
by limits and metes, for example, must adhere to the demarcation of
specified partition shares.
 Mitakshara school: In Mitakshara school, property is not divided into precise
shares, and while the elements of a coparcener must be shown, the presence
of joint property is not a requirement for pursuing partition. To demand a
divorce, all that is required is an unequivocal proclamation of his wish to be
divorced from his family.
TYPES OF PARTITION UNDER HINDU LAW
 De Jure Partition: In an undivided coparcenary, all existing coparceners
have a joint share in the property, and none of the coparceners can tell the
exact amount of share that he holds in the property until the division takes
place. Simply said, it is a partition that has occurred but no actual possession
has been assigned.
Due to the sheer law of survivorship, the interests of the coparceners can
fluctuate according to births and deaths of the other coparceners. However, a
De Jure division occurs when the community interest is broken down at the
request of one coparcener or by mutual agreement that the shares are now
clearly set or demarcated.
 De facto Partition: After the severance of Joint status or split of community
interest, unity of possession, which refers to the coparceners’ enjoyment of
property, may continue. Although the number of shares in the property may
not be specified, no coparcener waives his right to claim any property as his
exclusive share. “A de facto partition occurs when the Unity of Possession is
broken up by a real division of property.” Simply said, in a De facto partition,
not only the ownership but also the possession of a property is transferred.
SUBJECT MATTER OF PARTITION
1. In general, the entire joint family property is susceptible to partition, but the
distinct property of coparceners is not. The existence of joint family property must
be proven by a plaintiff seeking partition. Where the existence of a joint family is not
in question, however, each coparcener is entitled to an equal portion.

2. Some properties, however, may be held jointly by two or more coparceners,

such as when a coparcenary exists within a coparcenary, and if a general partition
occurs, these properties may be divided among these coparceners, but other
coparceners may claim a portion in them. Even though the lease may be subject to
revocation in certain situations, if the joint family is in possession of property held on
a permanent lease, such property is also available for partition. The partition does
not apply to impartible estates that are part of a joint family’s property.[1]
CHAPTER 2: ESSENTIAL MODES OF A VALID PARTITION
UNDER HINDU LAW
 Expression of intention is where one member of the joint family can
express his intention to partition that expression of intention only results in
severance of joint status even though no actual partition took place. Following
are some major modes of partition-
· Partition by father
Under Hindu Law, the father has more power than the other coparceners, and his
rights are more powerful. i.e. ‘Patria potestas’, by enacting a partition, he can
separate himself from the Joint family as well as each son, including minors.
· Partition by agreement
Partition by agreement occurs when all of the coparceners agree to dissolve the joint
status. The court has no authority to recognize a partition unless the parties have
reached an agreement on mutually acceptable terms. Each participant to a partition
agreement agrees not to cause any hindrances or assert any claim or right on the
portion they have decided to give up through this partition deed.

· Partition by Suit
Filing a lawsuit in court is the most popular technique to indicate one’s desire to get
divorced from the joint family property. The plaintiff’s status in the joint family
property ends the moment he states his unmistakable decision to separate in court.
It usually occurs when there is a family disagreement or when there is a lack of
mutual consent among the coparceners.

· Partition by Conversion
Conversion to a non-Hindu religion might result in the loss of a coparcener’s standing
in the Joint Family. The member who converted to religion would lose his
coparcenary membership, but the status of the other coparceners would not be
affected.

· Marriage under the Special Marriage Act

Severance of status happens automatically from the day of marriage if a coparcener
marries according to the provisions of the Special Marriage Act, 1954, and the
coparcener is entitled to receive his or her part of the property.

· Partition by Arbitration
An agreement is established among the coparceners of a joint family to choose an
arbitrator to arbitrate and divide the property among themselves or coparceners
under this mode of partition. The date on which such a partition becomes operational
is the date on which it was created.

· Partition by Notice
The intention to separate, which must be disclosed to other coparceners, is the most
important aspect of partition. As a result, whether or not accompanied by litigation, a
partition may take effect simply by giving notice to the coparceners.

· Right to Demand Partition

As a general rule, any coparcener of a Hindu joint family has the right to demand
that the coparcenary/ Hindu joint family property be partitioned.[2]
PARTIAL PARTITION
In most cases, each family member receives a different portion and acquires a
separate part as a result of the split. However, there are occasional exceptions to
this general rule; for example, a suit for division can sometimes be for a portion of
the entire property.

1. When general partition of a property is not practicable due to conditions such as a

lease or mortgage, the property will be left unpartitioned and the remainder will be
subject to partial partition

2. Where various parts of property are located within and outside of India.
3. When property is owned jointly with strangers who are not subject to the Family
Partition Act.

4. Where some property was missing out at the prior split due to a mistake or fraud.

In these instances, a partial partition suit, that is, a partition based solely on
available property, will be filed.

When a joint family owns more than one property, one of the properties can be
divided in half. It results in severance of a portion of the joint property while
maintaining joint family status. It is the property’s partial partition. A partial partition
as to persons occurs when one person’s family wishes to withdraw from the unit.[3]
CHAPTER 3: PARTIES LEGALLY ENTITLED TO DEMAND
PARTITION UNDER HINDU LAW
1. Special power of father: A Hindu father retains the authority to divide his
property between his sons. As a result, regardless of his sons’ verbal assent or
dissent, the father can sever the property using the exceptional power granted to
him.
2. Son, Grandson, and Great-grandson: Regardless of whether they are sons,
grandsons, or great-grandsons, all coparceners who are major and of sound mind
have the right to demand partition at any moment. Any coparcener can make a clear
demand, with or without justification, and the Karta is legally obligated to obey.
3. Daughter: Daughters, sons in the womb of their mothers, adopted sons, sons
born after a void or voidable marriage, illegitimate sons, and so on all have the right
to demand partition as legal coparceners.
4. Partition of coparcenary property: It’s important to remember that a
coparcener has the power to demand partition at any time without the other
coparceners’ approval. Since the purpose to partition the coparcenary property is
announced, each coparcener’s portion becomes explicit and quantifiable. It’s worth
noting that after the coparcener’s share is established, the property no longer
qualifies as coparcenary. In this case, the parties will own the property as tenants-in-
common rather than as joint tenants. The term “tenancy in common” refers to a
situation in which two or more persons share ownership of a property.
5. Adopted Child: If the widow of a coparcener embraced a child after the
partition, the embraced child is authorised to reopen the partition. The Hindu
Adoptions and Maintenance Act of 1956, which dates back to the date of the
deceased husband’s death, might be used to resurrect the division.
5. Minor coparcener: In the case of a minor coparcener, the test for partition is
whether the division is in the minor’s advantage or interest, or whether it poses a
risk to the minor’s interests. It’s important to note that the court has the last say on
whether or not a matter comes within the scope of the minor’s interests.
According to Hindu law, if a minor has an undivided part in a Joint Family, the Karta
of the Joint Family becomes the youngster’s guardian. The rights of the minor and
the rights of the major are identical when it comes to the right to demand partition
by a person.

By filing an action through his guardian, the child retains the right to claim partition
just like an adult coparcener. However, if it is determined that the suit is not in the
best interests of the minor, the case may be dismissed. As a result, it is the court’s
responsibility to provide justice to minors by safeguarding their rights and interests.
[4]
CHAPTER 4: EFFECTS OF PARTITION OF PROPERTY IN
A HINDU JOINT FAMILY
In a joint family, a partition can result in the property being severed or separated. A
person’s rights, obligations, duties, and responsibilities originating from a Joint
Family are regarded to be discharged after partition. Following the partition, every
current coparcener is assigned a fixed number of shares. The following are some of
the repercussions on the parties to the partition:

1. It results in the loss of coparcenary status. Every coparcener receives his or her
own portion and rights to that part. A person’s rights, duties, and responsibilities
toward the joint family that existed prior to the partition are no longer applicable.

2. If a separated member dies, his shares pass to his heirs rather than survivorship.

3. An ancestor’s business loses its essence and becomes subject to the Partnership
Act’s provisions. Coparceners purchase different firms and are no longer obligated to
furnish a joint family an account of their business.

4. The father, as the family’s Karta, is unable to impose a constraint on pre-partition

debts through partial payment or endorsement.

5. In the case of partial division, those who have broken their ties with the joint
family lose their prior status.

EFFECTS OF ORAL PARTITION UNDER HINDU LAW

Oral partition, also known as family arrangement, is a powerful tool for ensuring a
family’s peace, happiness, and well-being while avoiding litigation. It is especially
beneficial in the case of illiterate family members or those who lack the financial
means to pay for legal processes/advice, etc. Oral partition and family were changed
by legislation to the Hindu Succession Act. As a result, the Commission proposes an
appropriate revision to section 6 of the Hindu Succession Act, 1956’s Explanation to
include oral partition and family arrangement in the definition of “partition”.

CHAPTER 5: PROPERTIES NOT CAPABLE OF DIVISION

BY THEIR VERY NATURE
Although the general rule is that the entire joint family property is open for partition,
certain species of joint family property are by their very nature difficult to split, and
such properties cannot be divided. As a result, there are three options for adjusting:

 Some of the properties may be enjoyed equally or alternately by the

coparceners.
 Some of the properties may be allotted to a coparcener’s share and its value
changed in accordance with the value of the other properties assigned to the
other coparceners.
 Some of the properties may be sold and the Earnings distributed to other
coparceners.
Can living dwellings and places of worship be partitioned? This is a common
question. The court concluded in Nirupama Basak v. Baidyanath Pramanick[5] that in
the case of dwelling houses, the attempt should be made to reach an agreement
that leaves the house wholly in the hands of one or more coparceners or retained for
common use. Similarly, it was held in Pramatha Nath Mullick v. Pradumma
Kumar[6] that family shrines, temples, and idols should be assigned to one
coparcener with the liberty of the others to have access to them for the sake of
worship; the properties should be kept in turn, in accordance to their share in the
property; If the family relies on the offerings for a living, each coparcener would
worship and take the gifts in turn. The right of way, as well as other indivisible
property, remains in common usage by all coparceners.
CHAPTER 6: GROUNDS FOR REOPENING OF PARTITION
UNDER HINDU LAW
Following the Partition, Hindu law has made it permissible to reopen or revoke the
partition. According to Hindu Law, in circumstances of Mistake, Absentee
Coparcener, Undue Influence, Fraud, Son in the womb, Son conceived and born after
partition, Disqualified coparceners, as well and additional property after division, the
partition might be reopened.

1. Mistake: If any members of the Joint family have mistakenly abandoned their
joint family properties and are left out of the partition, the partition can take place
later.
2. Fraud: Any partition can be revoked if it is used for dishonest purposes. If the
assets are fraudulently represented, for example, the coparcener has the power to
reopen the partition.
3. Disqualified coparcener: There may be times when the disqualified
coparcener falls short of his share at the moment of partition due to a technological
constraint. He retains the right to have the partition removed and the disqualification
lifted.
4. Son in Womb: If a son is in the womb at the time of partition and no shares
were awarded to him, the partition can be reopened later.
5. Adopted Son: If the widow of a coparcener adopts a son after the partition, the
adopted son is allowed to reopen the partition. Under the Hindu Adoptions and
Maintenance Act 1956, such adoptions are traced back to the date of the deceased
husband’s death, and the adopted son can reopen the partition.
6. Absentee Coparcener: If a coparcener is absent at the time of partition and
no share is allocated to him, he might reopen the partition.
7. Minor Coparcener: After reaching majority, a minor Coparcener might request
that the partition be reopened if he was not allocated his share at the time of
partition. It usually occurs when the partition was unequal, unfair, or adverse to the
minor’s interests.
CHAPTER 7: LIABILITIES TO BE TAKEN CARE OF
BEFORE PARTITION
1. Debts: Debts incurred by the father or the Karta on his behalf, or for the
benefit of the joint family, must be paid. According to Mitakshara law, the sons are
obligated to pay up the father’s obligations if they are not contaminated with
immorality or illegality and if they were not provided for at the time of partition. If
the payment provisions are not made, the sons are accountable to the father’s
creditors to the extent of their stake in the property. Thus, any outstanding debts or
claims against the family must be settled before the split may proceed.
2. Marriage expenses of daughters: It is to be ensured that all the
necessary marriage expenses of daughter and performance of certain ceremonies
and rite are carried out by the father or Karta before Partition
3. Maintenance: Before the Actual Partition, the maintenance of disqualified
coparceners and their immediate dependents, mothers, stepmothers, grandmothers,
and other females entitled to be kept by the joint family property, unmarried sisters,
and widowed daughters of deceased coparceners must be secured.[7]
CHAPTER 8: SHARES TO FEMALE MEMBERS AT A
PARTITION UNDER HINDU LAW
The Mitakshara coparcenary partition’s allotment of shares to female members has
caused great controversy and dispute, especially since the implementation of new
enactments codifying the law of succession, adoption, and maintenance.

According to Section 6 of the Hindu Succession Act, a coparcenary is retained under

Mitakshara, allowing succession rights to female members of Class I of the Schedule
or male members who claim through such female members.

· Partition at the Lifetime of the father

(a)A woman’s right to a share on division during the father’s lifetime exists due to
her co-ownership in the husband’s property, thus the wife should be allotted a share
on partition during the father’s lifetime, according to a liberal perspective.

(b)Even if it is assumed that it is in place of maintenance, there is no written or

implied provision that undermines the family’s claim to such a share on the partition
for the family’s lifespan. Section 22(2) of the Hindu Adoptions and Maintenance Act,
1956, if it has any effect at all, cannot protect such a case because it only deals with
the maintenance issue after the devolution of property by maintenance.

The right of a paternal grandmother to share among her grandsons on a partition is

unaffected. When a partition claim is filed, the spouse or son dies while the case is
proceeding.

· Share of Female Members at a Partition after the death of

Husband/Son
1. The 1937 Hindu Women’s Rights to Property Act “replaced” a woman’s right to
share in the partition following her father’s death. In the absence of any specific
legislative provision to that effect, the Hindu Succession Act cannot be considered as
resurrecting the mother’s right by repealing the Hindu Women’s Rights to Property
Act of 1956.

2. After the death of the father, a mother’s share on the partition is instead of
maintenance. If the previous system persists, it should be regarded as abolished
because the Hindu Adoptions and Maintenance Act formalised the law and granted
the mother a particular entitlement.

CHAPTER 9: REUNION OR REVOCATION OF

PARTITION UNDER HINDU LAW
If any member of the family wants to reunite and re-join their respective estate
portions, this is a very uncommon practise. It is feasible for the coparceners to
reconnect after a total division by undoing the previous partition among themselves.
Only those who were involved in the original partition are eligible for a reunion. If a
Hindu joint family splits up, the family or any of its members may elect to reconnect
as a Hindu joint family.

The following are the prerequisites for a legal Hindu Law reunion:

 Only your brother, father, and paternal uncle can participate in the partition
reunion.
  You can hold a partition reunion with the members who were involved in the
partition.
 Since reunion is more than just an agreement to live together as tenants in
common, there must be a connection between estate and property reunion.
The objective of the reunion is to bring all of the coparceners back together. Reunion
confers a right on all reuniting family members in the joint family properties that are
the subject of partition among them, to the degree that they have not been
dissipated prior to the union.

CONCLUSION
Partition under Hindu law is a concept that is guided primarily by two modes of
thought, Mitakshara and Dayabhaga. Partition in a Hindu joint family means that the
status of jointness, ownership and solidarity among the family members is broken.
The division can take place in a variety of ways, including Conversion, Notification,
Will, Arbitration, Agreement, and Suit etc. Thereby we also discussed parties eligible
for Partition including women and adopted children, as well as grounds for
disqualification, along with effects of partition. Also, the grounds for reopening of
partition have also been discussed in the paper along with liabilities that has to be
taken care of before Partition.

The partition under Hindu Law may occur by stripes or by branch in the Mitakshara
school; however, in the Dayabhaga school, Partition occurs simply after the death of
the Karta; the Dayabhaga school does not follow any coparcenary ideas. Provision
also provides an opportunity for Reunion or Revocation of Partition as well. Hence,
the Provisions try to cover various aspects to ensure a fair distribution of property
amongst the members of the family including the unborn child, yet the laws have
been going through constant amendments to ensure all the lacunas during
distribution of property are erased from the provisions of India.