FAMILY LAW II

PARTITION

SUBMITTED BY: ADITYA SARKAR (BLIL~1141)

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
NAGRBHAVI, BANGALORE -560072
SUBMITTED ON 10TH APRIL, 2004

FAMILY LAW II
PARTITION
Table of Contents
TABLE OF CONTENTS

TABLE OF CASES

TABLE OF STATUTES

INTRODUCTION

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES

SCOPE AND LIMITATIONS

RESEARCH QUESTIONS

CHAPTERISATION

SOURCES OF DATA

METHOD OF WRITING

MODE OF CITATION

PARTITION

CONCLUSION

26

BIBLIOGRAPHY

27

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TABLE

OF

CASES

1. Ajit Kumar v. Ujayar Singh, AIR 1961 SC 1334.

2. Apaji v. Ramchandra, (1812) 16 Bom 29.
3. Apoorva Shantilal v. CIT, AIR 1983 SC 409.
4. Appoovier v. Rama Subba Aiyan, (1866) 11 IA 75.
5. Bapuji v. Dattu, AIR 1923 Bom 425.
6. Bhagwan Dayal v. Reoti Devi, AIR 1962 SC 287.
7. Deshpande v. Kusum, AIR 1978 SC 1791.
8. Devagya Tuklya v. Shivgya Tuklya, AIR 1973 Mys 4.
9. Dukhi Dibya v. Landi Dibya, AIR 1978 Ori 182.
10. Fakimath v. Krishnachandra Nath, AIR 1954 Ori 176.
11. Girija Bai v. Sadashiv, AIR 1916 PC 104.
12. Guneshwar v. Durga Prasad, AIR 1917 PC 146.
13. Gurupad v. Hirabai, AIR 1978 SC 1239.
14. Haradhone Haldar v. Usha Charan Karmakar, AIR 1955 Cal 292.
15. Jagat Krishna v. Ajit Kumar, AIR 1964 Ori 75.
16. K.V. Narayanan v. Ranganadhan, AIR 1976 SC 1715.
17. Khunni Lal v. Gobind, (1911) 38 IA 87.
18. Krishendra v. Debendra, (1908) 12 CWN 793.
19. Lakshman Dada Naik v. Ramachandra, (1881) 7 IA 181.
20. Lakshmi Chand v. Ishroo Devi, AIR 1977 SC 1694.
21. Lilawati v. Paras Ram, AIR 1977 HP 1.
22. Mt. Bholabai v. Dwarka Das, (1924) 5 Lah 375.
23. Mulan Chand v. Kanchhendilal AIR 1958 MP 304.
24. Nabisha Begum v. Arumaga Thewar AIR 1966 Mad 111.
25. Narayan v. Arjun, AIR 1986 Bom 122.

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26. Nirupama v. Baidyanath, AIR 1985 Cal 406.
27. Pedasubbhaya v. Akkamma, AIR 1958 SC 1042.
28. Periaswami v. Periaswami, (1878) 5 IA 61.
29. Perrazu v. Subbrayadu, (1921) 48 IA 280.
30. Pramatha v. Pradumma, AIR 1925 PC 139.
31. Pudiava v. Pavanasa, AIR 1923 Mad 215.
32. Puttrangamma v. Rangamma, AIR 1968 SC 1018.
33. Raghavamma v. Chenchamma, AIR 1964 SC 136.
34. Raja Gopal v. Venkataraman 51 CWN 829 (PC).
35. Ram Narain Chaudhury v. Pan Kuer, (1935) 62 IA 16.
36. Ramabai v. Harnabai, (1924) 51 IA 177.
37. Ramabhadra v. Virabhadra, (1899) 26 IA 167.
38. Ratnam Chettiar v. Kuppuswami, AIR 1976 SC 1.
39. Sachindra v. Hem Chandra, AIR 1931 Cal 573.
40. Sartaj Kuari v. Deoraj Kuari, (1888) 15 IA 51.
41. Sat Narayan v. Das, (1936) 63 IA 384.
42. Savitribhai v. Bhaubat, AIR 1927 Bom 103.
43. Shiromani v. Hem Kumar, AIR 1968 SC 1299.
44. Venkata Reddi v. Lakshmama, AIR 1963 SC 1601.
45. Venkatappa v. Gangamma, AIR 1988 Ker 133.
46. Venkuraddy v. Venkuraddy, AIR 1923 Mad 471.

TABLE

OF

STATUTES

1. Caste Disabilities Removal Act, 1850.

2. Hindu Inheritance (Removal of Disabilities) Act, 1928.

3. Hindu Law of Inheritance (Amendment) Act, 1929.

4. Hindu Succession Act, 1956.
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5. Hindu Womens Right to Property Act, 1937.
6. Kerala Joint Hindu Family System (Abolition) Act, 1976.
7. The Hindu Succession (Andhra Pradesh Amendment) Act, 1985.

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INTRODUCTION
The common sense understanding of the term partition is division and in the legal
sense the term in essence signifies the same thing. Yet this division that takes place of joint
family property comes with several nuances and involves different areas which require to be
understood in order to understand the very institution of a joint family. According to
Mitakshara law partition consists in the numerical division of property which belongs to
the joint family.1
This numerical division, to be completely and properly understood involves several
sub issues such as the nature of the property to be divided, the persons entitled to a share
and the calculation of such shares, what exactly constitutes partition, the mode of division
of property, the reopening of partition etc. This is only possible with a detailed reference to
the different writings on the topic that already exist, and the plethora of judicial
pronouncements that exist on the subject. This being the subject of many disputes in the
daily operation of a joint family there are judicial pronouncements which date back a
hundred years or more and are still relevant to the topic.
An attempt shall also be made to try and understand the manner in which the
different statutes that have been criticised as piecemeal legislations have actually influenced
and changed the law negating the effect of several judicial decisions and in some cases
leading to more confusion. A special attempt shall also be made to try and understand the
effect of the amendments that have been made in the Southern States of India which have
changed the very nature of partition by creating new coparcenars. The different advantages
and disadvantages that ensue as a result shall also be discussed.
The most important points surrounding a partition are the rights and liabilities that
arise out of the same due to the nature of the process of partition. Keeping this in mind
1

Mulla, Hindu Law, S. A. Desai eds., 18th ed., Vol. 1, (Butterworths India, New Delhi, 2001) at 597.

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there shall be an attempt made in this research paper while discussing the various issues
surrounding the various facets of partition to examine the issue from the perspective of one
whose rights may be either favourably or prejudicially affected.
The importance of this paper, therefore, lies in the fact that it attempts to discuss an
area of law which is essential to the understanding of the institution of a joint family if it is
appropriate to call it an institution at all which in its turn is essential for the understanding
of the law governing succession and inheritance in India. This shall be done through an
examination of the different commentaries on the issue and through primarily a discussion
of the different judicial pronouncements on the different relevant areas. This discussion
shall take place wherever possible from the perspective of an individual whose rights are
being either prejudicially or favourably affected by the partition or legal issue surrounding
the process of partition.

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RESEARCH

METHODOLOGY

AIMS AND OBJECTIVES

The aim of this research paper is to examine in some detail from the perspectives of
the people who either derive some advantage from the process of partition or are
prejudicially affected by such a process. The aim of this research paper shall also be to
examine the effect that the later statutory enactments have had on the traditional law and
whether these effects are desirable or not. The aim of this research paper shall finally be to
examine the body of judicial pronouncements and attempt to look at the different
contradictions that exist within this and an attempt shall also be made to resolve or work
around these conflicts of judicial reasoning.
The objectives of this research paper shall be to establish a clear cut picture of the
law relating to partition as it stands to day after statutory enactments and different judicial
pronouncements.
SCOPE AND LIMITATIONS
Due to the incredibly vast corpus of material that is available on this issue the scope
of this research paper is incredibly large yet due to constraints of time and space and
availability of the very old judicial pronouncements on the issue the scope of this research
paper is somewhat limited.
Also the discussion shall be limited to the law as it stands today after the different
statutory enactments and therefore there shall only be a discussion on the Mitakshara
system of law and the system prevailing therein.
RESEARCH QUESTIONS
1. What property can be partitioned?
2. Who are the persons entitled to a share?

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3. What constitutes partition?
4. What are the modes by which division of property may take place?
5. What is reopening of partition?

CHAPTERISATION
Instead of having chapters which seems to signify a certain degree of separability of
concepts which is not possible in this case this research paper has been divided into several
sections each of which deal with one of the research questions. Through the process of
dealing with the research questions the modern position of law shall also be dealt with as
modified by the different statutory enactments.
SOURCES OF DATA
1. Articles
2. Books
3. Case Law
METHOD OF WRITING
The researcher has followed a primarily analytical method of writing though there
may be parts where the writing is descriptive in nature.
MODE OF CITATION
The researcher has followed an uniform method of citation throughout this research
paper.

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PPARTITION
artition being a huge subject and one that cannot be dealt with comprehensively within the
constraints of this research paper effectively if the normal approach of attempting a dry
enunciation of different principles is employed. This research paper shall therefore attempt
to examine the different issues involved in partition through an examination of the different
rights and liabilities of the different characters who are involved in the partition. This shall
be accomplished primarily through an examination of the case law on the subject. Partition
has been defined as the adjustment of diverse rights regarding the whole, by distributing
them in particular portions of the aggregate. 2 Although initially discouraged it has later
come to be accepted and now means division of property by metes and bounds.

I
The first issue that has to be discussed is that of the property which actually, is the
subject matter of partition. Within this section there shall be an examination of the rights of
the persons entitled to maintenance, the issues surrounding the division of property which
is by its very nature not divisible, questions related to the maintenance and requirement for
accounts by the karta, and the question regarding the determination of coparcenary and self
acquired property.

COPARCENARY AND SELF ACQUIRED PROPERTY

Only joint family property is the subject of partition and the self acquired property is
not a subject of the same. A detailed discussion of coparcenary property is not possible here
due to the limited space available here. However it shall suffice to say that coparcenary
property is that property which belongs only to the joint family as a whole. Ancestral
property which is another term for the same is property inherited by a male Hindu from his

M.R. Mallick eds., Tagore Law Lectures: Mitra on Law of Joint Property and Partition, 3rd ed., (Kamal Law
House, Calcutta, 1991) at 317. See also G. Sarkar, A Treatise on Hindu Law, R.N. Sarkar eds., 5th ed., (Eastern Law
House Calcutta , 1924) at 409.

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father, fathers father or fathers fathers father. 3 According to the Mitakshara law the
essential characteristic of ancestral property is that sons, grandsons and great grandsons of
the person acquires an interest and the rights attached to such property at the moment of
their birth.4 Joint family there may be property which may belong only to the members of
the joint family not as a family but individually. 5 As regards the self acquired property of
the father whatever restrictions that there may have been against the willing away of such
property case law has removed all such restrictions and therefore only when this property
becomes ancestral property in the hands of the successors does the same become available
for partition.6 Dealing only with coparcenary property there are several restrictions that
have been placed on the division of even coparcenary property. These are to do with the
nature of property namely whether it is property whose worth will be destroyed on the
same being partitioned or not or whether the same is property that has come only to a
single member of the family to the exclusion of the other members of the family. 7
The general principle appears to be that as with the evolution of property whose
value diminishes on the division of the same the strict letter of the texts has been explained
away and there has been a trend towards decisions which say that where the property is
indivisible by nature there the property should either be held jointly or should be held in
turns, or the property should be sold and the value shared or retained by one coparcener. 8

Supra note 1 at 380. See also S. Venkataraman, A Treatise on Hindu Law, 2nd ed., (Orient Longman, New Delhi,
1980) at 52-54.
4
Ibid at 380. See also P. Diwan, Ancestral Property after Hindu Succession Act 1956 Joint Family Property or
Separate Property, Vol. 25(1), 1983, p. 1.which argues that the interpretation that has been given to the Act by the
Courts has also changed the manner in which joint family property is viewed. See also R.L. Butani, Partition of
Hindu Undivided Family under Income Tax Act, (2000) 164 CTR (Articles) 63.
5
M.R. Mallick eds., Tagore Law Lectures: Mitra on Law of Joint Property and Partition, 3rd ed., (Kamal Law
House, Calcutta, 1991) at 334. See also Periaswami v. Periaswami, (1878) 5 IA 61. See also Lakshman Dada Naik
v. Ramachandra, (1881) 7 IA 181 both of pronounce authoritatively that separate property or self acquired property
are not divisible.
6
Id.
7
Supra note 1 at 572. See also A. Kuppuswami eds., Maynes Treatise on Hindu Law and Usage, 13th ed., (Bharat
Law House, New Delhi, 1998) at 709.
8
A. Kuppuswami eds., Maynes Treatise on Hindu Law and Usage, 13th ed., (Bharat Law House, New Delhi, 1998)
at 710.

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Mulla says that
if the property can be partitioned without destroying the intrinsic value of the whole
property, or of the shares, such partition ought to be made. If on the contrary, no partition
can be made, without destroying the intrinsic value, a money compensation should be given
instead of the share which would fall to the plaintiff by partition

Let us take the example of a dwelling house for instance, where there had been alienation of
a part of the house (the undetermined share of one of the coparceners), the court tried to
come to a conclusion whereby it stated that an arrangement should be made such that the
property should be remain in the hands of one of the coparceners or for shared and
common use by using the right of pre-emption. 9
A special mention should be made of the decisions which govern the partition of
places of worship and idols. The most authoritative pronouncement of the Court has been
in the case of Pramatha v. Pradumma10 where it was held that the right of worship of an idol
cannot be made the subject matter of partition and that the remedy was to have the joint
owners of the property perform the worship in turns. 11

PROPERTY AVAILABLE FOR PARTITION

The property that is available for partition has to be calculated through a detailed
process of taking accounts where different factors including debts, the rights of those
entitled to maintenance, etc are considered. 12 The payment of debts is an especially
interesting area because it is in this area that it appears that according to the Mitakshara law
9

Nirupama v. Baidyanath, AIR 1985 Cal 406. See also Haradhone Haldar v. Usha Charan Karmakar, AIR 1955
Cal 292.
10
AIR 1925 PC 139.
11
See also Dukhi Dibya v. Landi Dibya, AIR 1978 Ori 182 where it was held that a thakurbari is not divisible. See
also Sachindra v. Hem Chandra, AIR 1931 Cal 573 where it was held that in the absence of the dedication of a
building for the worship of the family idol, the building should not be excluded from partition but the Court may
give one of the coparceners to maintain the property or buy the property at a valuation.
12
Venkuraddy v. Venkuraddy, AIR 1923 Mad 471; See also Raja Gopal v. Venkataraman 51 CWN 829 (PC); K.V.
Narayanan v. Ranganadhan, AIR 1976 SC 1715.

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the sons are bound to pay off the debts of the father if these are not tainted with immorality
or illegality if these have not been provided for at the time of partition itself. 13 In case the
provisions for the payment have not been made it has been held that the sons are liable to
the creditors of the father to the extent of their interest in the property. 14 In the case of
Deshpande v. Kusum15 it was held that where the father who was the karta of the family had
borrowed money for the sinking of a bore well in the land, i.e. for the improvement of the
land then the other coparceners in this case the sons would be liable for the same.
Therefore the encumbrances on the estate which should be accounted for before the
partition actually takes place are
1. the debts due or claims against the family;
2. charges on account of disqualified heirs, of female members and of others
who are entitled to be maintained;16
3. marriages and such other family ceremonies have to be provided for;
ACCOUNTS
It is in this light therefore that the taking of accounts becomes absolutely important and the
mode of taking accounts as has been laid down by the courts of law is as follows. The taking
of accounts only takes place after the different liabilities of the estate to be partitioned have
been accounted for and the taking of this account is simply an enquiry into the existing
assets.17 Also while taking accounts the fact should be remembered that if a member of the
joint family has made an investment in the property of the joint family out of his own
separate property without an intention that the same should be made part of the joint

13

Sat Narayan v. Das, (1936) 63 IA 384. See also V. Kumar, Basis and Nature of Pious Obligation of Son to Pay
Fathers Debt vis--vis Statutory modifications in Hindu Law, Vo. 36(3), Journal of the Indian Law Institute, 1994,
p. 339.
14
Deshpande v. Kusum, AIR 1978 SC 1791.
15
Id.
16
Mt. Bholabai v. Dwarka Das, (1924) 5 Lah 375; c.f. A. Kuppuswami eds., Maynes Treatise on Hindu Law and
Usage, 13th ed., (Bharat Law House, New Delhi, 1998) at 710.
17
Perrazu v. Subbrayadu, (1921) 48 IA 280.

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family property then the same constitutes a debt owed to that member by the joint family as
a whole.18
It has to be remembered that the liability of the Karta is only from the date of
severance because before that accounts cannot be demanded unless the person claiming,
alleges and proves fraud or wrong allocation of funds. In that case he would be entitled to
the accounts for the whole period of management. 19
Provisions should also be made for the marriage expenses of sisters and also the
expenses of the unmarried sisters according to Yajnavalkya and also according to the
Smritichandrika.20 Provisions should also be made for the funeral expenses of the mother if
the division has been made between the father and the sons but there is no requirement for
the marriage expenses of a coparcener to be provided for. 21
Therefore in this section what has been dealt with are the different kinds of property
which are available for partition. What has also been dealt with are the liabilities of the
coparceners who are liable for the payment of debts of the father and also the marriage
expenses of the unmarried sisters. The liabilities of the karta as regards tendering of
accounts have also been dealt with and the different modes of taking accounts has also been
dealt with.

II
This section deals with the rights of those who are entitled to claim partition of joint
family property or those who although not entitled to partition are at least entitled to some
portion of property upon the partition of the property. In this section the areas that shall be
looked at in detail along with an examination of the broader principles governing the issue
are the the rights of an illegitimate son, the rights of female heirs who have been assigned

18

Ramabhadra v. Virabhadra, (1899) 26 IA 167.

Supra note 8 at 713.
20
Supra note 8 at 711.
21
Supra note 8 at 711.
19

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special status by the different amendments that have been made by the Southern States such
as Andhra Pradesh, Tamil Nadu etc to the Hindu Succession Act, those disqualified due to
some disability, alienees etc. These shall be dealt with as the different persons who are
entitled to claim partition and those entitled to get a share on partition are dealt with in this
portion.
DISQUALIFICATION ON ACCOUNT OF DISABILITY
Although it is a rule that every coparcener is entitled to a share upon partition 22 the
fact remains that there are several heirs who are also excluded. Before the Hindu Succession
Act23 and the Caste Disabilities Removal Act 24 came into being both unchastity of a widow at
the time of her husbands death and the loss of caste or religion are grounds for the
exclusion of these people as heirs.
The Hindu Succession Act has removed the same disability from widows and the
Caste Disabilities Removal Act, 1850 operates to remove the disability as far as the person
who is undergoing conversion to another religion or has suffered a loss of caste is
concerned25 and as far as his or her heirs are concerned the law of the religion that the
individual has converted shall apply insofar as succession is concerned.
However the Courts have pronounced authoritatively as far as the operation of
physical and mental defects act as disqualifying certain heirs from being coparceners or
rather from being entitled to a share on partition. This disability also operates only for the
afflicted individual but does not affect the rights of the heirs of such a coparcener. 26
The following are those who have been excluded from inheritance according to the
interpretation that has been given to the texts by the Courts:

22

Sartaj Kuari v. Deoraj Kuari, (1888) 15 IA 51 at 64.

Hindu Succession Act, 1956.
24
Caste Disabilities Removal Act, 1850.
25
Khunni Lal v. Gobind, (1911) 38 IA 87.
26
Supra note 1 at 221.
23

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1. Blindness27, deafness28 and dumbness29 are some of the primary reasons for
disqualification of heirs if these are congenital and incurable both. Along with these
congenital impotence, lameness, and want of any limb which is also congenital also
operate as physical disqualifications. Virulent leprosy as far as rendering a person
unfit for social intercourse also acts as a bar. 30
2. Lunacy (which need not be congenital or incurable as long as it exists at the time of
severance)31 or complete and absolute congenital idiocy operate as bars to succession
for a person.32
This position has been changed by the enacting of the Hindu Inheritance (Removal of
Disabilities) Act, 1928 which removes the bars to succession for all other heirs other than
those who are and have been since birth either afflicted by lunacy or idiocy. 33
There are no special provisions as regards women and therefore if a disability acts as
far as a man is concerned it also applies to a woman to disqualify her.
Traditional Hindu law therefore appears to have been at least partially countered by
the enacting of the statute and the only criticism that may be attempted of the same is that
that may be taken to apply to all piecemeal legislation.
At this point in the research paper it might be beneficial to cast a look upon the
structure of this portion of the research paper. At the very outset the persons disqualified
from receiving a share have been dealt with and thereafter what shall be dealt with are the
different persons who may claim partition naturally under a simple reading of the
scriptures and surrounding whose right to claim partition there is not much controversy.
Thereafter those heirs whose rights have been matters of some dispute shall be dealt with
27

Guneshwar v. Durga Prasad, AIR 1917 PC 146; Pudiava v. Pavanasa, AIR 1923 Mad 215; Fakimath v.
Krishnachandra Nath, AIR 1954 Ori 176.
28
Savitribhai v. Bhaubat, AIR 1927 Bom 103.
29
Supra note 1 at 223.
30
Ramabai v. Harnabai, (1924) 51 IA 177.
31
Bapuji v. Dattu, AIR 1923 Bom 425.
32
Supra note 1 at 221.
33
However the Act has come into force only since 1928 and does not have retrospective effect.

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and lastly the controversy created by the different amendments undertaken by the different
Southern States shall be dealt with along with the rights of the female members to a share.
It is necessary to draw a distinction at this juncture of this paper between those who
can demand a partition and those who receive a share on partition. Therefore at the
beginning of this part of this portion of the research paper those who are entitled to claim
partition shall be dealt with.

THOSE ENTITLED TO DEMAND PARTITION

Sons, Grandsons and Great Grandsons:
Every adult coparcener is entitled to demand and sue for partition of the
coparcenery property at any time. In the Bombay School however the son does not have an
unfettered right to partition without the consent of the father if the father is joint with his
own father or with his brothers or with other coparceners although this right is available to
a son when the father has separated from the others. 34 The other High Courts have not
recognised such a fetter on the right to demand partition of a son. In the case of Devagya
Tuklya v. Shivgya Tuklya35 it has been held that other schools do not recognise any such
restriction on the right to partition. In fact this case dissents from the Bombay school and
agrees with J. Telangs dissenting opinion in the case of Apaji v. Ramchandra.
Under Mitakshara law therefore, the father of a joint family has the power to divide
the family property at any time during his lifetime provided he gives the sons an equal
share as himself, and if he does so not only is this a partition between himself and his sons
but also a partition between the sons inter se i.e. between themselves and the consent of the
sons is not necessary for such a purpose. 36 This power of the father which is sometimes
known as the superior power of the father has been upheld by the Supreme Court in the
34

Narayan v. Arjun, AIR 1986 Bom 122. In Bombay the case of Apaji v. Ramchandra, (1812) 16 Bom 29 has been
accepted as locus classicus till date and does not seem to have been overruled by the pronouncements of the
Supreme Court.
35
AIR 1973 Mys 4.
36
Mulan Chand v. Kanchhendilal AIR 1958 MP 304.

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case of Apoorva Shantilal v. CIT37 where the case involved two partial partitions which had
taken place according to the claims of the karta between the members of the family but as
the division had not taken place at the instance of the children and also since there had not
been equal division of property therefore this claim of partition was contested by the
Income Tax Authorities.38 The same is not open to the grandfather with respect to the
grandsons in that he cannot effect a partition between his grandsons although he may
assign shares to them.39
SONS BEGOTTEN BEFORE AND AFTER PARTITION
Within the category of sons an interesting example is that of the son who is begotten before
but is born after partition. The rule governing the same has been authoritatively laid down
by the Courts in a number of cases where they have said that the son who was born after
partition took place but begotten before partition took place is entitled to a share and if a
share has not already been set aside for him then he is entitled to have partition reopened
and demand his legitimate share. The rule regarding the same has been laid down
authoritatively by the case of Jagat Krishna v. Ajit Kumar40 which stated that where the son
had been born after partition took place but had been begotten before partition as opposed
to being both conceived and born after partition took place was entitled to a share whereas
in the latter case the son although entitled to a share from his fathers property could not
ask for a share of the property as divided at the time of partition and also could not ask for
a reopening of partition if the father had reserved a share for himself. 41 However he is
entitled to a share of both the separate property of the father and also the share of the
property that the father has received after partition in case he had reserved a portion for
himself but if he had not then he is entitled to have partition reopened and to have a share
allotted to him.42
37

AIR 1983 SC 409.

It is also however well established that the shares if unequal but agreed to by the sons are binding upon the sons.
39
Supra note 1 at 579.
40
AIR 1964 Ori 75.
41
Supra note 1 at 582.
42
Supra note 1 at 582.
38

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The illegitimate son poses another interesting problem insofar as the discussion on
inheritance is concerned. According to all the scriptures and the interpretations that have
been given to them by the courts before the enactment of the Hindu Succession Act as far as
the rights of the upper castes were concerned, they were not entitled to anything, however
the position was different as regards a sudra who although not entitled to claim partition
during the lifetime of his father was entitled to a share equal to half the share obtained by
the legitimate son.43 However as the law stands now, under section 3(j) relation has been
defined as legitimate kinship and it has been said in the proviso to the section that
illegitimate sons are related to their mothers and their heirs are related to them. This
therefore is one of the primary criticisms that is possible of the piecemeal legislation which
does not provide for the rights of illegitimate sons that were guaranteed under the
customary law.
Minors are also entitled to partition but only when the he acts through his next best
friend and the courts have been pliant in the matter of granting partition only insofar as the
protection of the interests of the minor are concerned and therefore only to protect the
minor from danger as far as his interests are concerned the court may allow partition. It
must be remembered that the time of partition is however the date of the institution of the
suit and not when the same is ratified by the Court. This issue has been pronounced on by
the Supreme Court in a number of cases.44
An alienee also has certain rights regarding the undivided interest of a coparcenor
which he may have purchased. A purchaser of interest can according to Mulla claim
partition in Bombay, Madras and Madhya Pradesh while this is not possible in Bengal and
Uttar Pradesh.45 According to all schools however a purchaser can demand partition in the
execution of a decree and where the purchase has been made in the pursuance of the same.
THE POSITION OF WOMEN
43

Ajit Kumar v. Ujayar Singh, AIR 1961 SC 1334.

Pedasubbhaya v. Akkamma, AIR 1958 SC 1042; see also Venkata Reddi v. Lakshmama, AIR 1963 SC 1601; see
also Nabisha Begum v. Arumaga Thewar AIR 1966 Mad 111.
45
Supra note 1 at 586.
44

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The position of women is something that has undergone, if not radical, at least
substantial change in the law as far as the law of partition is concerned. 46 Part of this has
been due to the different statutory enactments.
According to traditional law the fathers wife is entitled to have property equal to her
sons and enjoy the same separately from her husband in case of a partition although she
does not have the right to claim partition herself. 47 As regards a grandmother the position is
the same as the mother although there is some controversy regarding whether she is
entitled if there is a partition between her son and her grandson and the Calcutta and Patna
High Courts have said that she is but the Allahabad and Bombay Courts have differed. 48 In
case of a widow now the change that has occurred is that although initially along with the
widow of a predeceased son and the widow of a predeceased son of a predeceased son she
was entitled to some rights even when the coparcener left male heirs she had only a limited
interest in the property49 but now in the Hindu Succession Act she has been given absolute
title over the same.50 The Hindu Succession Act has also made another significant change
where the rights of female heirs are concerned. This is with respect to the idea of notional
partition which is enshrined in Section 6 of the same. What this section does is that through
the proviso it says that if a male Hindu dies intestate and he leaves a female heir surviving
who is specified in Class I of the Ist schedule of the Act or a male heir claiming under such a
female heir the interest devolves by intestate or testamentary succession and not by the rule
of survivorship.
The ambit of this rule is easier to explain with the help of the case of Gurupad v.
Hirabai,51 where the point in issue was as follows: The widow of one Khandappa had filed
46

P.C. Jain, Womens Property Rights under Traditional Hindu Law and the Hindu Succession Act, 1956 Some
Observations, Vol. 45 (3&4), 2003, p. 509 at 524. See also V. Ramaswami, Right of Female Members in Partition
Suit, (2003) 184 CTR (Articles) 83.
47
Shiromani v. Hem Kumar, AIR 1968 SC 1299; Lakshmi Chand v. Ishroo Devi, AIR 1977 SC 1694.
48
M.R. Mallick eds., Tagore Law Lectures: Mitra on Law of Joint Property and Partition, 3rd ed., (Kamal Law
House, Calcutta, 1991) at 337.
49
Hindu Womens Right to Property Act, 1937 which built on the Hindu Law of Inheritance (Amendment) Act, 1929
which had in its turn restricted the principle of survivorship.
50
S. 14, Hindu Succession Act, 1956.
51
AIR 1978 SC 1239.

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for partition saying that she was entitled to 7/24 th of the joint family property because of the
following family structure:
Khandappa Sangappa Magdum
- Hira Bai (Plaintiff)
---------------------------|------------------------------|
Gurupad
(Deft. 1)

Bayawwa

Bhagirathibai

(Deft. 3)

(Deft. 4)

Dhondubai

Shivapad

(Deft. 5)

(Deft. 2)

In the language of the Court: If a partition were to take place during Khandappa's lifetime
between himself and his two sons, the plaintiff would have got a 1/4th share in the joint
family properties, the other three getting a 1/4th share each. Khandappa's 1/4th share
would devolve upon his death on six sharers : the plaintiff and her five children, each
having a 1/24th share therein. Adding 1/4th and 1/24th, the plaintiff claims a 7/24th share
in the joint family properties.52
Holding for the widow the court explained itself by saying that it did not matter
whether partition actually took place or not, the idea behind the section was to ensure that
the fictional act of notional partition was carried out irrespective of the act and calculate the
shares as if partition had taken place irrespective of reality.
In this way by the double act of creating the heirs in the Schedule and the act of
notional partition the legislature has succeeded in granting greater rights to the female
heirs.
The last portion to be dealt with is the question of creating female coparceners
through an amendment to the Hindu Succession Act through the introduction of sections
29A etc by the Andhra Pradesh Legislature53 following which similar amendments have
been made by the Tamil Nadu legislature and the Karnataka legislature. The Kerala
legislature has instead abolished the joint family system altogether.

52
53

Id.
The Hindu Succession (Andhra Pradesh Amendment) Act, 1985.

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This has been a revolutionary move aimed at the equality of sexes, something which
has always been an issue in the traditional Hindu Law which is heavily biased towards the
male heirs. However there have been several criticisms that have been raised against these
movements for gender equality in inheritance.54 Barring the criticisms that have been raised
on technicalities such as the differing scopes of the amending act and the original act, the
criticism hinges on the constitutionality of the amendment on the basis of distinctions that
are made between married and unmarried daughters. However these criticisms can be
disregarded on the grounds of practicability. One of the greatest advantages of the Andhra
Pradesh Amendment over the Kerala Act 55 is that where the former does not prevent
exclusion of daughters by testamentary succession the latter does.

III
This section seeks to deal with when a partition can be said to have taken place and
the different forms that this may take. Partition as a matter of individual volition requires a
definite and unequivocal statement of intention of a member of a joint family to separate
from the family and enjoy his share in severalty. The Supreme Court has pointed out that
there should be an intimation, or indication or representation of such intention and the
form of such manifestation should depend upon the facts and circumstances of each case. 56
It may be expressed by the serving of notice, 57 the institution of a suit58 and once the
intention is expressed the same cannot be revoked by withdrawal of the notice or the suit. 59
Regarding the institution of a suit by a minor the same has already been dealt with while
dealing with those entitled to claim partition. In the case of Appoovier v. Rama Subba Aiyan60
54

See B. Sivaramayya, The Hindu Succession (Andhra Pradesh Amendment) Act, 1985: A Move in the Wrong
Direction, Vol. 30(2), Journal of the Indian Law Institute, 1988, p. 166.
55
Kerala Joint Hindu Family System (Abolition) Act, 1976.
56
Raghavamma v. Chenchamma, AIR 1964 SC 136. See also J.D.M. Derrett, Mr. Justice Subba Rao and Hindu
Law, Vol. 9, Journal of the Indian Law Institute, 1967, p. 547 at 554.
57
Girija Bai v. Sadashiv, AIR 1916 PC 104.
58
Supra note 1 at 600.
59
Puttrangamma v. Rangamma, AIR 1968 SC 1018.
60
(1866) 11 IA 75.

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it has been held that the true test of partition being the intention of the partition therefore
the agreement to partition would operate although there may not have been any division by
metes and bounds. In case of an agreement not to partition the same has been held to bind
the parties to the agreement but not their assignees. 61 Insofar as the evidentiary
requirements are concerned even if the property has not been physically divided the
agreement operates as proof of legal partition.
This brings us to the discussion on shares allotted and partial partition. Regarding
the shares that are allotted on partition the division is always per stirpes which means per
branch and therefore the rules governing the same may be summed up in short as follows:
1. On a partition between a father and his sons both take equally. e.g. where the joint
family consists of the father and two sons then the property is divided into three
parts each taking a part.
2. Where the joint family consists of brothers all the brothers take equally.
3. Each branch may take per stirpes but the members of a branch take per capita as
regards each other. E.g. If a brother receives 1/3 rd share and he has two sons then
they take 1/9th each (1/3 divided by 3).
4. The last rule is regarding what is known as successive partition in some cases. Before
understanding the same it is necessary to understand the idea of a partial partition.

PARTIAL PARTITION
The partition between coparceners may be partial as regards property as well as
persons making it.62 In case of successive partitions the latter is applicable. However
For a clear understanding o the idea both should be gone into.
a. Partial as to property: It is open to the members to the members of a joint family to
separate as regards a part of the joint family property and not the whole property. In
that case they continue as a joint family in the absence of an intention to separate.
61
62

Krishendra v. Debendra, (1908) 12 CWN 793.

Lilawati v. Paras Ram, AIR 1977 HP 1.

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b. Partial as to persons: In case there is no general partition between all the members of
the joint family in that case the partition may be partial and may only be operative as
regards the person separating. Thereafter if on a determination of what is essentially
a question of fact it is found that the rest of the family are joint and not reunited then
the same is called a partial partition. 63
SUCCESSIVE PARTITION
In case after a partial partition when the remaining coparceners remaining joint over
a period of time decide to effectuate a subsequent partition then there has been a conflict
regarding the shares that devolve upon the people who have remained joint. The Bombay
High Court has followed the maxim of rebus sic stantibus which means that the state of the
property at the time of partition is only taken into account whereas the Madras and the
Mysore High Court has held that the earlier partition should also betaken into account.
A

B1

B2

B3

C1

D2

If in the above diagram A dies and thereafter B dies. B 2 receives his share 1/3rd of 1/4th =
1/12th and leaves the family. The rest of the family continues joint. Then C, D, E and B 3 all
die. If now B1 sues C1 and D1 for partition then:
a. According to the Bombay School the property is to be divided into three parts where
each part gets 1/3rd.
b. According to the Madras Court B1 is entitled to 1/3rd 1/12th = 1/4th of the property,
taking into account the fact that B2 left the family earlier.
This appears therefore to cover most of the areas that are of any dispute within the
mode of partition and what constitutes partition.
63

Supra note 1 at 616-617.

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IV
This section proposes to deal with the ideas of reunion and reopening of partition.
Needless to say once a partition is completed it is final and binding as regards the parties
except for several well recognised exceptions which have been enumerated by the Courts.
The religious texts say that if once a partition is completed and then fresh property is
discovered then that property has to be partitioned by the reopening of partition or if
wealth has been concealed by one member of the joint family. 64
The Courts have held however that the partition can be reopened if there are several
pressing reasons for the same and these have been singled out as
Fraud, misrepresentation or undue influence: A partition may be reopened where it can be
proved that a coparcener obtained an unfair advantage in the division of property by fraud
misrepresentation or undue influence. The case of Venkatappa v. Gangamma65 where proof of
good faith was not forthcoming from the defendants and particularly from the Karta and
the elder brother was in a position to dominate the will of the father during division then
the same partition could be reopened on grounds of it having been vitiated by undue
influence.
Minority: In case the partition was effected at the time of the minority of the son and then
later the son could challenge the same and ask for a reopening of partition if he can show
that the partition was unjust, unfair and prejudicial to his interests. 66
These therefore are the limited circumstances in which reopening of partition is
permitted.
Reunion on the other hand involves the completion of partition and the subsequent
mixing together of effects. The Mitakshara has laid down the rule of who is allowed to

64

Supra note 8 at 839.

AIR 1988 Ker 133.
66
Ratnam Chettiar v. Kuppuswami, AIR 1976 SC 1.
65

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reunite comprehensively and has said that cannot take place with any person indifferently;
but with a father, brother or paternal uncle. 67
This has been held as an exclusive enumeration of those entitled to reunite according
to the case of Ram Narain Chaudhury v. Pan Kuer68. Insofar as the evidentiary requirements
are concerned the same have a presumption against reunion since initially there is a
presumption against partition and once partition has taken place it is held to be final.
Therefore in order to prove partition it is necessary to show that not only did the parties
already divided lived or traded together but they also did so with the express intention of
thereby forming a joint estate with all its antecedents. 69
This is important because the effect of reunion is to return the members of the joint
family to the earlier status where they again from a joint family and the property of those
who had separated is again available to be gained access to, by an heir by the principle of
survivorship.
Therefore this section has dealt with the last but not the least important part of
partition which are the principles of reopening of partition and reunion.
The purpose of this research paper has not been to attempt a comprehensive
examination of the different principles that govern partition. Instead it has been to examine
the different rights and liabilities of different persons that arise out of partition and also an
examination of how these rights have been conditioned by the enacting of different
legislations that have been described as piecemeal by many authors.

67

Supra note 2 at 352.

(1935) 62 IA 16.
69
Bhagwan Dayal v. Reoti Devi, AIR 1962 SC 287.
68

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CONCLUSION
The Hindu undivided family is an unique institution which is peculiar to India 70 and
this has significant implications for the law relating to inheritance in India. In this context
the law governing partition of joint family property attains even greater importance. Most
of the law which governs this is still uncodified at least as far as the legislation is concerned.
Although attempts have been made and commendable attempts at that to at least codify a
part of the law but there are numerous problems that plague these laws.
One area however where the law has indeed changed for the better because of the
different legislations that have been enacted is the area of womens rights. Here due to the
different legislation there has been a steady improvement in the nature of the rights that are
guaranteed to the women. Most criticisms of these legislations ignore the fact that these
legislations are simply an attempt to grant the female heirs a greater right to inherit and
therefore what problems these may or may not have shall always be secondary to the
principles upon which these legislations are based.
Partition has numerous implications insofar as the rights of heirs are concerned.
However in some areas these are still not clearly enunciated and often due to differing
interpretations that have been given by the Courts there is still great confusion as regards
the true state of the law. The law surrounding the same seems to be in a state of limbo
where it is still not clear whether we are choosing to adopt the model of British legislation
or to continue with the more fluid and localized development of law that was in prevalence
earlier. In effect we have done neither leading to a stagnation of the fluid law and non
enactment of the necessary legislation.

70

R. Jaganmohan Rao, Joint Family and Population Problem, Vol. 16(4), Journal of the Indian Law Institute,
1974, p.712 at 713.

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BIBLIOGRAPHY
ARTICLES
1. B. Sivaramayya, The Hindu Succession (Andhra Pradesh Amendment) Act, 1985: A
Move in the Wrong Direction, Vol. 30(2), Journal of the Indian Law Institute, 1988, p.
166.
2. J.D.M. Derrett, Mr. Justice Subba Rao and Hindu Law, Vol. 9, Journal of the Indian
Law Institute, 1967, p. 547.
3. P. Diwan, Ancestral Property after Hindu Succession Act 1956 Joint Family Property
or Separate Property, Vol. 25(1), 1983, p. 1.
4. P.C. Jain, Womens Property Rights under Traditional Hindu Law and the Hindu
Succession Act, 1956 Some Observations, Vol. 45 (3&4), 2003, p. 509.
5. R.L. Butani, Partition of Hindu Undivided Family under Income Tax Act, (2000)
164 CTR (Articles) 63.
6. V. Kumar, Basis and Nature of Pious Obligation of Son to Pay Fathers Debt vis--vis
Statutory modifications in Hindu Law, Vo. 36(3), Journal of the Indian Law Institute,
1994, p. 339.
7. V. Ramaswami, Right of Female Members in Partition Suit, (2003) 184 CTR
(Articles) 83.
BOOKS
1. A. Kuppuswami eds., Maynes Treatise on Hindu Law and Usage, 13th ed., (Bharat Law
House, New Delhi, 1998).
2. G. Sarkar, A Treatise on Hindu Law, R.N. Sarkar eds., 5th ed., (Eastern Law House
Calcutta , 1924).
3. Mulla, Hindu Law, S. A. Desai eds., 18th ed., Vol. 1, (Butterworths India, New Delhi,
2001).
4. R. Mallick eds., Tagore Law Lectures: Mitra on Law of Joint Property and Partition, 3rd
ed., (Kamal Law House, Calcutta, 1991).
5. S. Venkataraman, A Treatise on Hindu Law, 2nd ed., (Orient Longman, New Delhi, 1980).
WEBSITES
1. www.manupatra.com

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