Partition of property under Hindu law

Introduction

The division of property into two parts is popular as a partition. Under the Hindu regulation, partition wealth is a division of possessions of a Joint Hindu offspring so that present separate conferment of rank on the whole coparceners. It is suitable to note that no partition is likely if skilled is only a distinct coparcener in Joint kin. A coparcener is a person who inherits rank as coheir accompanying possible choice.

The idea of a coparcener is a complete few the Joint family property similarly the Hindu Law. Each of the coparceners has an equal share of the characteristic of the Joint Hindu Family and each of them reserves a hereditary title in the feature. If a Hindu Joint classification ends commotion partition before allure joint rank of a kin stop. However, in consideration of authenticating a state of jointness with the coparceners in classification, it is imperative to have at smallest two coparceners present in the family.

A partition can be possible on the property which is capable of being partitioned. If at all there is a separate property of any of the coparceners in the Joint family it cannot be subjected to partition3. In the case of Murunga Mohapatra v. Prana Krushna Mohapatra, the Court stated that when the elder brother had purchased the property from his personal funds it cannot be subjected to partition and included in the Joint Family at the instance of a younger brother.

Moreover, in the case of Prafulla Kumar Mohapatra v. Joy Kenta Krushna Mohapatra the court stated that when the property belongs to the paternal uncle and there is no substantial evidence about the share of the property of the claimant’s father, it would be considered as separate property and not a property of Joint Hindi family.

Formation and Differentiation of coparcenary under Aryabhata and MIT Akshara:

For all Hindus, the codified Hindu law provides uniform law where there is no space for schools to exist and these are applicable only in regard to the uncodified areas of Hindu Law. With the beginning of the age of commentaries and digests, the Schools of Hindu Law evolved. As a result, schools with opposing doctrines emerged, and the related laws were obtained in one and other parts of India.

The joint family system is divided into two different schools i.e. MIT Akshara and Aryabhata. These schools aren’t codified but have an impact on legislatures. The MIT Akshara concept of the Joint Family is practised in most parts of India, but the Aryabhata concept of the Joint Family is followed by people in West Bengal, Assam, and elsewhere. In the two schools, i.e. Aryabhata and MIT Akshara, it’s the subject matter of joint family property is the region that separates each of them from another. These schools have major impacts on the present development. MIT Akshara and Aryabhata system deals with various laws under the Hindu law, each in its own way.

MIT Akshara School Coparcener system has an interest in the property of Joint Hindu family by birth, but before partition takes place, coparcener enjoys the status as a coparcener by birth, this indicates that there is a nature of uncertain and fluctuating interest that increases with death and decreases in the family with birth. It is founded on the ‘ownership theory’. The presence of a community of interest and unity of ownership is also present in MIT Akshara School of law

The School of MIT Akshara bases its inheritance law on the principle of propinquity. It means the one who is closest in the relationship with respect to the blood succeeds. When applied, the theory would mean that, for example, sons would succeed in the property because they are similarly close to their deceased parent, which it excludes women from inheritance.

In the case of Thammavenkata Subbamma v Thamma Rattamma[3], the Supreme Court held that Mitakshara Coparcenary is an essential characteristic of unity of ownership and community of interest. The undivided share exists indefinitely, the coparcener has some definite share in the coparcenary property, which increases with the death and decreases with the birth of any coparcener.

The Dayabhaga Joint Family is a reflection of family member’s ability to live together. In food, worship, and land, the family is communal. The Dayabhaga School is based on the principle of religious effectiveness or spiritual gain and its rule of succession. It means that the person who gives the deceased more religious advantage is entitled to inheritance rather than the others who give the deceased less advantage religiously.

The Dayabhaga School of Law does not distinguish between Joint family property and separate property, because Property is based on the principle of inheritance. The shares of Coparcenary property are clear under Dayabhaga School and do not fluctuate with the death and birth of members. The property is returned to heirs by way of inheritance upon the death of a coparcener.

The foundation of a coparcenary is first laid at the birth of a son, according to the Mitakshara School of law. Therefore, if a Hindu governed by the Mitakshara law has a son born to him, the father and the son become coparceners at once. The foundation of a coparcenary is laid on the death of the father, according to the Dayabhaga School of law. There is no coparcenary as long as the father is alive. It is only on his death that a coparcenary is first created leaving two or more male members.

Inheritance

Concept of Inheritance Succession under Dayabhaga and Mitakshara:

In India, inheritance and property law finds its legislative origins in the Hindu Succession Act, of 1956. As given under it, the pattern of succession is for a testate inheritance, i.e. when a death happens without any will, the property must be distributed according to the law’s guidelines. In India, this pattern is not standard and varies from one religion to another and from one school to another, in accordance with the customs and guidelines laid down by the respective Family law system.

Under Hindu law, the right of inheritance was a right that vested immediately upon the death of the owner of the property on the person who at that time was the closest heir. Under no circumstances should it remain in abeyance in anticipation of the birth of a chosen successor, not born at the time of the death of the creator. Where the property of a Hindu Joint family was upon the responsibility of a person who, at the time of his death, was the nearest heir, it could not be divested.

Under inheritance, the Dayabhaga School and Mitakshara School have their framework. The two systems are based on the text of Manu that the next inheritance belongs to the nearest Sarinda. The contradictions between the two derive from the fact that although under the Dayabhaga School the doctrine of religious effectiveness is the guiding principle, under the Mitakshara there is such a definite guiding principle.

A Division may be made by any coparcener making a definite, unambiguous statement of purpose to detach him from the family. If this is achieved, the division of the property’s status will amount to whatever mode it is used. As per the Mitakshara Law, the coparcenary property that is subject to the partition is the modification of the diverse interests in relation to the whole by distributing them into separate portions of the aggregate. Under the Dayabhaga law, it means property division according to the coparcener’s particular share

The Sarinda relationship doctrine is insisted on by the Mitakshara school of law in offering religious oblations, the class of blood should be preferred to the particular class, and that is the governing element whereby the right to inherit occurs under the Mitakshara rule. The inheritance under Mitakshara is based on the Doctrine of Survivorship[4]. 

The concept of religious effectiveness or spiritual gain (Concept of Sarindas) is the foundation of Darbhanga School. In contrast to those who confer less spiritual advantage based on the Doctrine of Oblations, those who confer more spiritual advantage are entitled to inherit the property. The females can also inherit the property in the family under the Darbhanga school of law. Widow has the right to succeed in her husband’s share in the case of the coparcener dying issueless, and to impose a partition on her own account. Hence the right to inherit derives from spiritual effectiveness, i.e., the power to confer spiritual gain on the names of paternal and maternal ancestors under the Dayabhaga School of law. 

Under Mitakshara, women should not be coparceners. A wife has the right to maintain her husband’s property. Yet she’s no coparcener. Under the Hindu Women’s Right to Property Act, 1937[5], a widow also succeeds in the share of her deceased husband in the joint family but cannot be a coparcener. 

Partition

 Partition of an HJF in Dayabhaga and Mitakshara:

 Partitioning means separating the joint family property among the members who are eligible for the share in the partition. The joint family ceases to be joint upon division, and nuclear families or multiple joint families come into being. Joint family members can request partitioning and are entitled to share. A reunion or division can only be made between the family parties who can assert and have rights over their Property. 

The Coparcenary property should be liable to the partition. Separate property is not at all responsible for the partition. It totally belongs to the owner of that spot. In the case of Poonam Mishra vs. Rajkumari Mishra[6], it was held that the property obtained subsequently has to be considered as self-acquired property however obtained with joint funds and must be exempt from partition. 

According to Dayabhaga School, by birth, sons do not gain any interest in the ancestral property and they cannot request from the father a partition of such property. Partition, under the law of Dayabhaga, means the division of Joint property of the family in accordance with the particular share that is already in joint possession and common by the members of the family. This implies splitting up joint ownership, i.e. dividing or splitting the coparcener share that they already have a common possession according to metes and bounds[7]. Under the Dayabhaga School, the coparcenary nature is the unity of possession, while it is the unity of ownership in Mitakshara School of law.

 Under the Dayabhaga, a partition of the coparcenary property can be imposed by any adult coparcener, whether male or female, while under the Mitakshara, as it existed before the 2005 amendment of the Hindu Succession Act, a female could not at all be a coparcener and was therefore not entitled to partition. A woman may be a coparcener today.

 A son, a grandson, and a great-grandson may demand partition against his three immediate ancestors under the Mitakshara School of law. According to Dayabhaga, a son is not entitled to divide his father’s joint land. The explanation is that a son does not gain an interest in the ancestral property by birth, according to Dayabhaga Law. For grandsons and great-grandsons, the same law applies. 

Partition is the adjustment of the different interests with regard to the whole, according to the Mitakshara School of Law, by distributing them to the respective members in separate parts. It has been described as the crystallization of a coparcenary’s fluctuating interest into a specific share of the joint family property by stopping the fluctuation and later freezing of the partition’s property value. In the case of Lord Westbury in Approver v. Ram Subbu Aiyar[8], it was held that” no individual member of the joint family, while the property remaining undivided, can predicate that he or any particular member, has a certain definite share of the joint and undivided property.

 In the case of Moro Vishwanath v. Ganesh Vishal[9], it was said that the meaning of a co-parcener under Mitakshara law is known as a unity of ownership. The coparcenary property’s possession is in the whole family of coparceners. No individual member of that family may predict a definite share of the joint and undivided property of the family, according to the true notion of an undivided family. His interest is a fluctuating interest, capable of being expanded by family deaths and reduced by family births. 

He becomes entitled to a definite share only on the partition. Undivided coparcenary interest is the most suitable concept for defining a coparcener’s interest in coparcenary land. If Under Mitakshara School of law any such coparcener dies Then upon his death, his interest immediately becomes part of the share of property that the coparceners who survive carry as likewise fluctuates positively towards the existing coparceners. 

In respect to the mother in initiating the Partition, under Dayabhaga and Mitakshara, a mother does not impose a partition herself, as under the Mitakshara, so also under the Dayabhaga; but when a partition takes place between her sons, she is entitled to a share equal to that of a son after calculation of various other elements like the property received as a benefit of a wife or daughter in law in the presence of the head of the Joint Hindu Family. 

Partition Under these two schools of law follows an exception of Reunion. The reunion takes the split members of the family to their former status, which is a joint Hindu family. The only means by which the original joint status can be re-established is after the general partition reunion. Only among those participants who were parties to the original partition will the meeting take place. Under MIT Akshara’s rule, only between father and son, between brothers, reunions take place. Partition is a concept under Hindu law and is basically guided by two Schools of law, namely. Dayabhaga and Mitakshara. The partition between a Hindu family means severance between the individuals from the family of the status of jointers and ownership of property. The partition may take place in various ways, such as by agreement, arbitration, notice, etc.

 The partition can occur by stripes or by branch under Mitakshara School, and under Dayabhaga School, partition occurs just after the Karta’s demise, the Dayabhaga School follows no idea like coparcenary. Partition is an instrument that plays out the ability to put to its end to a Hindu joint family and its Joint property.

De jure and De facto Partition 

Partition means to divide into parts or to separate. In view of Joint Hindu Family, it means division of joint family into smaller units. It means Hindu Joint family never comes to end as even after partition it gives birth to other smaller joint families; however, that is possible only when those who are seeking partition have remaining lineal descendants. Partition can be done in presence of at least two coparceners in the Hindu Joint Family. Partition can be of two kinds: De facto Partition and De Jure Partition. De Jure partition refers to a partition which has taken place but actual possession has not been given. De facto Partition means when the partition has actually taken place, not only the ownership but also the possession of a property has been transferred.

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 number of shares in the property might not be fixed but no coparceners reserve the right to claim any property as falling into his exclusive shares. “This 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 is pertinent to note that a coparcener reserves a right to demand partition at any time without the consent of the other coparceners. Therefore, in order to bring demand for partition the following essentials must be established:-

1. There must be an intention to separate from the Joint Family.
2. There must be a clear, unequivocal and unilateral declaration which conveys the intention to separate from the Joint Family.
3. The intention must be communicated to the Karta or to the other coparcener in his absence.

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;

1. Sons and Grand-Sons:

Under the Mitakshara Law, the right of a son, a grand-son and a great grand-son as well as every other adult member of the coparcenary, can demand a partition even against the consent of the others. The Bombay High Court in a case has said that a son is not entitled to ask for a partition in the life-time of his father without his consent, when the father is not already separate from his own father or brothers and nephews.

But this view no longer stands valid. The Bombay High Court in a later case accepting the authority of the Supreme Court in Puttorangamma v. Rangamma held that a suit for partition and separate possession of ancestral joint family properties by one of the coparceners is maintainable even if their father is joint with his brother and is not willing and does not consent to such a partition.

The Delhi High Court clearly maintained that a son can demand partition during the lifetime of his father without any hindrance. This view was again supported by the Bombay High Court in its latest pronouncement

2. After-Born Sons

After-born sons can be classified under two heads. Firstly, those born as well as begotten after the partition and secondly, those born after partition but begotten before it. A son in his mother’s womb is treated in law in existence and is entitled to re-open the partition to receive a share equal to that of his brothers.

In the case of a son born as well as begotten after partition, if his father has taken a share for himself and separated from the other sons, then the after-born son is entitled to his father’s share at the partition and also his separate property to the exclusion of the separated sons and is not entitled to re-open the partition.

3. Illegitimate Sons:

An illegitimate son among the three upper classes does not have any vested interest in the property and therefore, cannot demand a partition, although he is entitled to maintenance out of his father’s estate. The Madras and Allahabad High Courts have held that an illegitimate son of a Sudra may enforce a partition against his illegitimate brothers but not against his father or his father’s coparceners. The Bombay High Court has also taken the same view but the Calcutta High Court has taken an opposite view.

4. Widows:

A widow, though not a coparcener under Mitakshara law could still claim a partition of the joint estate under the Hindu Women’s’ Right to Property Act, 1937. Mere partition of the estate between two widows does not destroy the right of survivorship of each to the properties allotted to the other. The party, who asserts that there was an arrangement, by which the widows agreed to relinquish the right of survivorship must establish it by clear and cogent evidence.

5. Adopted Son:

An adopted son like a natural born son would be entitled to demand a partition any time after adoption. But where a son has been adopted by the parents and a natural son is begotten subsequently, although the adopted son was to be treated at par with wife the natural son yet the quantum of his share in the joint family property differed in different schools.

In Bengal, he took 1/3rd share, in Banaras he took 1/4th and in Bombay and Madras he took 1 /5th share of the property. The Hindu Adoption and Maintenance Act, 1956 has done away with the discrimination and enabled the adopted son to get a share equal to that of natural born son on partition.

6. Minor Coparcener:

A minor coparcener is also entitled to affect a partition in case the joint status does not remain beneficial to his interest. He cannot file the suit himself but any other person on his behalf can file such a suit. His minority or the minority of other members of the family would not be a hindrance to affect a partition by him. If the partition has already taken effect detrimental to his interest, he could challenge it on attaining majority.

7. Alienee:

An alienee of a coparcener’s interest, if such an alienation is valid, has a right to demand partition. In Smt. Kailashpati Devi v. Smt. Bhuwaneshwari Devi, the Supreme Court held that the purchaser of joint family property from a member of a joint Hindu family may have the right to file a general suit for partition against the members of the joint family and that may be the proper remedy for him to adopt to effectuate his purchase. An execution purchaser of a member’s interest and purchaser of the same for value in Bombay and Madras is entitled to demand partition in the rights of that member.

8. Female Sharers:

The term “female sharers” include three types of females, namely, (1) the wife, (2) widowed mother, and (3) paternal grand-mother. These female sharers cannot demand a partition but, however, entitled to get their share when the joint family property is actually divided on partition. Where a suit for partition filed by a coparcener has been withdrawn, the female sharer will not be entitled to continue the suit or to press a demand of his share.

If the suit has been dismissed for any other reasons, the mother would not be entitled to demand partition in the property. The mother and the grand-mother would be entitled to get a share on partition only when the partition is effected between the sons and grand-sons. The female sharers would not be entitled to any share in the property merely by the fact that a suit for partition has been filed or a preliminary decree has been obtained in the suit. So long the actual partition is not effected; there is no question of allotment any share to them.

Section 23 of the Hindu Succession Act, 1956 postpones the right of female heirs to claim partition of the dwelling house until male heirs choose to divide their respective shares therein.

After passing Hindu Succession (Amendment) Act, now the position has been changed, now Section 23 of the principal Act has been omitted by Hindu Succession (Amendment) Act. Now daughters have the same rights as sons to reside in and to claim for partition of the parental dwelling house.

Effects Of Partition of Property Under Hindu Law

There are various effects on the parties to the partition namely;

1. It leads to end of coparcenary membership. Every coparcener acquires separate shares and individual rights over that share. A person becomes free from rights, duties and responsibilities towards the joint family that existed before the partition.

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

3. Ancestral business losses its essence and become subject to the provision of the Partnership Act. Coparceners acquire different businesses and they no longer are liable to give an account of their business to a joint family.

4. Father as Karta of the family cannot extent limitation in regard to pre-partition debt by means of part payment or endorsement.

5. In the case of partial partition, members who severed their rights from the joint family lose the status that they enjoyed previously.

Partition of a Coparcenary Property

Under the Mitakshara Law, a partition in a joint family not only means the division of the property but also the demolition of its joint status. This division of property is only limited to the coparcenary property and does not include any property acquired separately. The share of each coparcener can also be decided only after the partition. 

Who has the right to demand a partition?

Any coparcener can demand a partition whether minor or adult. This list of coparceners includes: 

• Father
• Son/ grandson/ great-grandson
• After the amendment of 2005, daughters are also coparceners and can demand a partition.
• On behalf of a minor coparcener his/her guardian can demand a partition.

Modes of partition:

• Partition by father
• Partition by agreement
• Partition by suit
• Partition by conversation
• Partition by arbitration
• Partition by converse=ion to another religion
• Partition by special marriage
• Partition by notice

Different Modes Of Partition of Property Under Hindu Law

A partition of property may be effected in many ways under Hindu law, namely by agreement, by will, by notice, by arbitration, by conversion etc. intention is the essence of the partition. Intimation by coparcener about his unequivocal intentions brings into his right to obtain his share whether or not others agree to separation and there is severance in the family[9]. The intention must be communicated to be effective. It can be in different ways either explicit or by the conductor of other members of the family.

1. Partition By Father:

Where coparcenary consists of a father and his sons only, he has a right to affect the partition without the consent of the sons. It is binding on the sons by virtue of the power conferred to father. However such partition must be in good faith.

2. Partition By Will:

Coparcener through a will can intimate his desire to separate from a joint family. He can make will and declare his desire to separate. He may assert his right to separate. Mitakshara coparcener after the addition of Section 30 in the Hindu Succession Act, 1956 can now make a testamentary disposition of his shares in the joint property.

3. Partition By Agreement:

Partition where all coparceners jointly agree for the partition. It is an internal arrangement mostly done in order to secure the respect and dignity of the family and to be away from the litigation. Where the evidence on the face of it declares the intention to separate no evidence of the subsequent acts of the parties to alter the agreement is admissible.

Where the intention is clear, the subsequent conduct of parties is of no use. Once the agreement is entered severance of status begins. The coparceners can divide the property by mutual agreement. The partition cannot be recognized by the court if the agreement of partition is not acted upon. In case of Approver v Ram subha Iyer, the Privy Council has observed that,

“that no coparcener can claim any defined share in the property but where the coparceners enter into an agreement to the effect that every member will have a specific and defined share in future the joint status is affected and very coparcener acquires  right to separate his specific share and use the same to exclusion of others.

4. Partition By Arbitration:

Coparceners may appoint arbitrators to lead and execute the partition. It may be affected with the help of a mediator or arbitrators who will divide the property. All the coparceners jointly appoint arbitrators, it shows common intention to get separated even where no award is given, intention does not vanish. The death of a coparcener does not affect the arbitration. He remains separate where the intention to part from the other coparceners is clear. The interest of the deceased coparcener shall descend as his separate property.

5. Partition By Conversion:

On conversion into Non-Hindu religion, a person is separated, no right of survivorship remains as no longer he remains a coparcener. From his joint family, he is not considered a coparcener. Person is entitled to get a share in the joint property after conversion as it stood at the date of his conversion. Reconversion does not necessarily bring back coparcenary relation in absence of subsequent act. Such conversion has no effect on the rights of other coparceners.

6. Partition By Suit:

It is the most common approach to severe rights. The partition can be demanded by filing a suit thereof in court. Father’s consent is not necessary, an eligible son during the father’s lifetime can file such a suit. A minor, as well as a major coparcener, has the right to go to court for this purpose.

a) In case of an adult, severance of status begins at the time of filing a suit thereof. The decree is required for allotting shares of the coparceners. In case of death, the legal representatives have the right to substitute for him to continue and obtain the decree for his share.

b) In the case of a minor, the suit is to be filed by his guardian or next friend. Here filing of the suit does not itself result in the partition and only after the decree is passed it is brought about. A court unlike in the case of an adult is not bound to pass a decree, it’s the discretion of the court and if it is satisfied that the partition is for benefit of the minor then the only a decree is passed.

7. Partition By special marriage:

When a person marries under the Special Marriage Act, 1954 he loses the membership of a joint family and it affects his severance from the joint family.

8. Partition By Notice:

In partition, the intention is the essential element. Such intention can be manifested by sending a registered notice to other coparceners. It must clearly state the intention to severe his rights in the joint family property and to have his share of the property. It might be followed by suit or not.

Right to Demand Partition

As a common rule, every coparcener of a Hindu joint family is permitted to demand partition of the coparcenary/ Hindu joint family property.

1. Special power of father: A Hindu father reserves a right to effect a partition between himself and his sons. Despite the express consent or dissent of his sons, he can exercise this right. Therefore the severance of the property can be done as per the special power given to the father.
2. Son, Grandson and Great-grandson: All coparceners, who is major and of sound mind is entitled to demand partition anytime irrespective of whether they are sons, grandsons or great-grandsons. A clear demand made by any coparcener, with or without reasons, is sufficient and the Karta is legally bound to comply with his demand.
3. Daughter:-Moreover, daughters, son in a mother’s womb, adopted son, son born after void or voidable marriage, an illegitimate son etc. also reserves a right to demand partition.

In the case of Pachi Krishnamma v. Kumaran, 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 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 case of Prakash & Ors. v. Phulavati & Ors  Full Bench of the Bombay High Court in this case in Para No. 23 of the judgement held that: Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per the law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the explanation.

In the instant case of Danamma Suman Surpur & Anr. v. Amar & Ors, The Hon’ble Supreme Court of India in this case as on 1st Feb 2018 held that: Daughters Have Equal Rights In Ancestral Property, Even If They Were Born Before Enactment Of Hindu Succession Act. 

In the instant case of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan. Vs. Patel Shantaben Bhikhabhai & Others, in this the Gujarat High Court as on 26/09/2017 held that a Hindu daughter after marrying to a Muslim guy does not lose her right to inherit property under The Hindu Succession Act . It was further observed that: 

“Prima facie, I am of the view that for the purpose of getting her name entered in the record of rights, all that was necessary to be indicated was that the applicant is one of the Class-I legal heirs. It was not necessary for her to declare that she is married to a Muslim and she has embraced Islam by renouncing her Hindu religion. Once the question of law is answered in favour of the applicant, I do not see any good reason to lay much emphasis on the issue of an affidavit filed by the applicant.”

4. Minor coparcener: The test for partition in case of a minor coparcener is whether the partition is in the benefit or interest of the minor or whether it can cause danger to the interests of the minor person. It is pertinent to note that it’s upon the discretion of the court to decide that a particular case falls under the ambit of interests of the minor. 

As per the Hindu Law, if at all a minor has an undivided share in a Joint Family the Karta of the Joint family will act as a guardian of the minor. However, when it comes to the right to demand partition by a person,

the rights of the minor and rights of major are similar in nature. 

The minor reserves a right to claim partition just like an adult coparcener by filing a suit through his guardian. But, if it is found that the suit is not beneficial to the minor the suit can be dismissed. Therefore, it is the duty of the court to serve justice to the minor by protecting their rights and interests.

Reunion of Partition under Hindu Law

Reunion of a family; a situation in which the specific family members regain their position as a joint-family, which was lost during partition. The only method for family members to re-establish their joint status is through a reunion. However, members of the family who previously held joint ownership of the land are entitled to reunite only.

The most essential element for reunion is that the parties intend to reunite in the estate and share a common interest. That also means that just deciding to live under the same roof without the goal of restoring joint property status does not constitute a genuine reunion. It is also essential that the communication be vivid, with each individual coparcener providing individual approval to the reunion.

Reunion

Reunion is reuniting families that have been separated due to partition. However, under Hindu Law, the term “reunion” refers to a circumstance in which the status of a formerly united family is restored following its split. Despite the fact that the HUF(Hindu Undivided Family) has been completely divided, it is possible to reunite under Hindu law.

The court in the Case of M/s. Paramanand L. Bajaj, Bangalore Vs. The Commissioner of Income Tax, Karnataka[1] relied on the text on reunion in Brihaspati Smriti and quoted that,

“He who being once separated dwells again through affection with his father brought or paternal uncle is termed reunited. reunited through affection, they shall mutually participate in each other’s properties.

Association not necessarily being by co-residence, the association is expressed to be through wealth; so, by way of removing the distinguishing factor of that, it should be understood that the re-association of the separated members shall be to the extent of pooling together(all) the wealth etc., as before, and not merely by a co-residence only. Effects which had been divided and which are again mixed together are termed reunited. He, to whom such appertain, is a re-united parcener.”

Suit for Partition 

Suit for partition and Joint Hindu Family

Where there were no accounts of the joint family income nor any substantial proof that has been submitted in order to show that property as alleged was actually purchased by father from the Joint family income and on the other hand, the defendant brother was successful in proving by cogent and necessary evidence that the property in dispute was actually acquired from his own income and resources i.e. without taking any aid from the joint family income, therefore, the suit filed by plaintiff-brother is liable to be dismissed.

Moreover, it was further held that if at all any family member were living in the same premises, there could not be any presumption or any inference with regard to the joint family nucleus so far as income is concerned until and unless it is proved in accordance with any cogent legal evidence.

Suit for partition and separate possession filed by minor son

When the suit was filed by minor son for partition and there was no dispute with regard to fact that Karta and his son both were entitled to half of the share in the suit property, however, at a later stage it was found that the Karta had sold a portion of the suit property without having the consent and knowledge of the minor son.

Then it was accordingly held that in the event of partition between the parties the portion which is sold already by Karta under sale in question cannot be allotted to his proposed share and as such no prejudice per se would be caused to the minor son due to the sale in question and so impugned order holding a sale in question and so it was accordingly held that the impugned order is valid and it does not require any inference.

Suit for partition filed by widow 

If at all a suit is instituted by a partition i.e. a member of a 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, in the instant case, a partition was sought of the property in the name of the wife of the opposite party and they were accordingly claiming that they were as the joint family proprieties and therefore no as such titleholder of the instant property has been made. Therefore, the apex court held that when there is a partition of a particular property, the titleholder must be made a necessary party for such property.

CONCLUSION

partition under Hindu standard maybe accomplished ease. There are plenty material discrepancies concern the grinding of a suit of partition and effect of spoken partition that has happened reviewed in this place paper stating beliefs. Further, it is established that the law of partition must see the right to female to partition as skilled have existed cases wherein the rights of mothers and daughters have existed discarded.

A partition maybe delineated as an idea of Hindu Law that is contingent mainly two types of schools of concept that is the MIT Akshara and Aryabhata schools individually. Partition is mainly accomplished among the appendages of the Joint Hindu Family, that resources a severance of rank of the jointness and again the wholeness of possession among the members of the joint family.