Table of Contents

Table Of Cases ............................................................................... 1

Introduction.................................................................................... 2

Severance Of Joint Status Or Interest ........................... 2

Mode Of Partition ........................................................................ 3

1) Partition By Suit ................................................................................... 4

2) Partition By Agreement ............................................................... 4

3) Oral Partition ......................................................................................... 5

4) Unilateral Declaration .............................................................. 6

5) Partition By Arbitration............................................................. 6

6) Partition By Conduct...................................................................... 7

7) Automatic severance of status .......................................... 8

8) Partition By Metes And Bounds .......................................... 8

Bibliography.................................................................................. 10
 Table Of Cases

 Appasaheb Peerappa Chandgade v. Devendra Peerappa

Chandgade, 2007 SC 218……………………………….4
 Appovier v. Rama, (1866) MIA 75 at 90……………….5
 Chandra Kant v. Balkrishna, 1970 SC 1536………….7
 Kama v. Meenakshi, 1931 Mad. 278…………………...3
 K. Radhakrishna v. Satyanarayan, 1949 Mad. 173…..4
 Nanak Chand v. Nand Kishore, 1982 Del. 520………..8
 Nani v. Gita, 1985 SC 706……………………………….5
 Rewun Prasad v. Mst. Radha, (1856) 4 MIA 137……...6
 Sarin v. Ajit, 1966 SC 432…………………………………6
 Raghavamma v. Chencamma, 1964 SC 136…………..6
 Shantilal v. Munsi Lal, 1932 Bom. 498…………………..7

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Introduction

Partition means bringing the joint status to an end. On partition,

the joint family ceases to be joint, and nuclear families come into
existence. Under Dayabhaga school, when coparceners partition, it
means division of property in accordance with the specified shares of the

coparceners, since the Dayabhaga coparceners have ascertained and

specified shares. But under Mitakshara school, partition does not merely
mean division of property into specific shares, it also means division of
status, or severance of status or interest. It is because the interest of the
Mitakshara coparceners are unspecified.1 Thus, under the Mitakshara

school, partition means two things:

1. Severance of status or interest.

2. Actual division of property in accordance with the shares so

specified, known as partition by metes and bounds.

Severance Of Joint Status Or Interest

What is necessary to bring about a severance is a clear and

unequivocal expression, by words or conduct, of an intention to
partition. Once members of the joint family agree or express an intention
to partition, severance of status takes place. Once intention to partition is

expressed it results in partition, share of each coparcener becomes clear

and once it is clear that they hold property as tenants in common and

not as joint tenants.2 Though intention may be expressed to server in any

1
Dr. Paras Diwan, Modern Hindu Law, 22nd ed., Allahabad Law Agency, New Delhi, 2012
2
Mulla, Hindu Law, 18th Ed., 2004, Lexis Nexis, Butterworths, New Delhi, 2006

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mode, it is necessary that intention to server must be communicated to
other coparceners. An uncommunicated expression of intention can
amount to a desire to partition, it cannot amount to severance. What is
essential is that the unequivocal communication of intention must be the

conscious and informed act of the coparcener. The difficult question in

this connection is that when the communication of intention to server

should be deemed effective i.e. from the date on which the

communication is put into transmission or from the date on which it
reaches the coparcener? In Kama v. Meenakshi,3 Madras High Court held
that the severance of status is effective from the date on which

communication is put into transmission. For example, a letter or a notice

or a telegram is dispatched say on March 31, the severance of status

takes place from March 31. It was also held that the notice to the Karta
was enough.

Mode Of Partition

A partition can be made by a definite, unambiguous declaration of

intention by any coparcener to separate himself from the family. If this is
done, it would amount to division of status, whatever mode may be
used, partition may be effected by institution of a suit, by submitting the
dispute as to division of the properties to arbitration, by a demand for a
share in the properties, or by conduct which evinces an intention to
sever the joint family; it may also be effected by agreement to divide the
property. Various modes of partition are discussed below in detail.

3
1931 Mad. 278.

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1) Partition By Suit

When a coparcener files a suit for partition, it amounts to an

unequivocal intimation of the intention to sever, and consequently be
necessary for working out the result of severance, i.e., for division of
property by metes and bounds, but severance has taken place as from
the date of the filing of the suit and not from the date of the decree.
Decisions taking the view that the partition is effected by a decree of
court are wrong. In a suit for partition, the initial burden is on the plaintiff
to show that the entire property is joint family property. 4

In K. Radhakrishna v. Satyanarayan,5 where all the defendants in

the partition suit were served with the summons and issues were settled,
one of the defendants died whereupon the plaintiff sought to withdraw

the suit, the Madras High Court said that a division of status had already
been brought about by the plaintiff and therefore it was not open to him

to revoke the intention.

It is a well established proposition of Hindu Law and when

partition is effected by a deed of immovable property worth Rs. 100 or
more, registration is compulsory. But it can be used to show factum of

partition.

2) Partition By Agreement
The parties may effect a partition agreement. It has been observed

by the Privy Council that an agreement between the members of a joint

4
Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade, 2007 SC 218.
5
1949 Mad. 173.

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family to hold and enjoy the property in defined shares as separate
owners operates as a partition.6 But where joint family business was
converted in partnership business for income-tax purposes, it was held
that there was no severance of status. The motive behind the partition is

irrelevant if otherwise genuine.

A partition is effected by agreement between the coparcener of a

tenanted house whose division of rent has not been made is valid and an
injunction can be issued at the instance of a coparcener that others
should not interfere with the portion of property falling in his share.7

Under Hindu law, an agreement to partition need not be in

writing. If it is in writing, it should clearly indicate the parties’ intention to

partition. The parties are not free to alter or modify the legal effect of the
agreement by subsequent act or conduct. The severance of status takes
place from the date of signing of the agreement. A written agreement
need not be registered if it merely records what had happened. 8 But if
properties are divided by the agreement, registration is necessary.

3) Oral Partition

There is a long line of cases holding the view that oral partition
can be validly made. Since partition is not conveyance of property, the
Transfer of Property Act does not apply and there is no other law
requiring a partition to be evidenced by writing. As early as 1846, the

6
Appovier v. Rama, (1866) MIA 75 at 90
7
Dr. B.K. Sharma, Hindu Law, Central Law Publication, Allahabad, 2008
8
Nani v. Gita, 1985 SC 706.

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Privy Council in Rewun Prasad v. Mst. Radha,9 said that it is undisputed
that a division of joint property might be effected without an instrument
in writing. Since then the courts have consistently taken this view. The
rationale behind the principle is that partition does not involve transfer of

property; it is in the nature of mutual renunciation of rights. It can be

made orally.10

4) Unilateral Declaration

The severance of status may also be brought about by a unilateral

declaration of intention of partition. This, in other words, means that the

consent of the other coparceners is not necessary. But this does not
mean that intention need not be communicated. The communication of
intention is necessary, whatever mode of partition one may use.11

Partition means severance of status as well as division of property

by metes and bounds. The latter is a consequence of the former, which

may be brought about by a private agreement, at the intervention of the

court, or by arbitration, but for the former no second agency is
necessary. The former is essentially an individual act of a coparcener, in
the exercise of which he need not consult anyone and need not obtain
the consent of others.12

5) Partition By Arbitration

9
(1856) 4 MIA 137.
10
Sarin v. Ajit, 1966 SC 432.
11
Raghavamma v. Chencamma, 1964 SC 136.
12
Dr. Paras Diwan, Modern Hindu Law, 22nd ed., Allahabad Law Agency, New Delhi, 2012

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 A partition may be effected by arbitration. If members of joint
family enter into an agreement under which they appoint arbitrators for
dividing the joint family property among themselves, the severance of
status takes place from the date of the agreement. The mere fact that no

award is made, is immaterial. When the father or the Karta refers a

dispute between the members of the family to an arbitrator, and the

award directs partition, severance takes place from the date of the
award.13 If reference to arbitration is made by the guardian of a minor
coparcener, the award will be binding on the minor, only if it is for the
benefit of the minor. In Chandra Kant v. Balkrishna,14 the court passed a

preliminary decree for partition on the basis of an arbitration award

made in accordance with an agreement between the parties. A

Commissioner was also appointed to divide the properties on the basis

of the award. The division of properties did take place in accordance with
the award, and parties obtained separate possession of the same.

6) Partition By Conduct

The severance of status may also take place by conduct. The

conduct, like a declaration of intention, must be unequivocal, explicit and
definite. From what conduct severance of status may be deducted, will
vary from case to case. There can be numerous circumstances from
which such inference can be drawn. For instance, separation of food,
worship, dwelling, separate enjoyment of the property, separate income

13
Shantilal v. Munsi Lal, 1932 Bom. 498.
14
1970 SC 1536.

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and expenditure, separate business transaction, and the like are
instances of conduct from which inference of severance may be drawn.15

7) Automatic severance of status

Conversion of a coparcener to a non-Hindu religion (i.e., Islam,

Christianity, etc.) operates as an automatic severance of status of that

member from others, but it does not amount to severance of status
among the other members inter se. From the date of conversion, he
ceases to be a coparcener and, therefore, loses his right of survivorship.
He is entitled to receive a share in the joint family property as it stood at

the date of conversion. Exactly the same result follows if a coparcener

marries a non-Hindu under the Special Marriage Act, 1954.16

8) Partition By Metes And Bounds

In Nanak Chand v. Nand Kishore,17 it was held that partition by

metes and bounds means the physical division of joint family property.
After the severance of status takes place the interest of coparceners

becomes fixed and defined and after it they are co-owners and not
coparceners, they may continue to remain jointly or make de facto
division of the property i.e. by metes and bounds. The mere fact that

they carried on the business jointly is not material. After the severance of
status the Karta is bound to keep the accounts for all the receipts and
expenses. Every coparcener is entitled to be put in separate possession

15
Referred in Narada, XIII, 36-43.
16
Section 19 of Special Marriage Act, 1954
17
1982 Del. 520.

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of the properties giving him share by metes and bounds. It does not
mean that every item of the property is to be divided between co-
sharers. It is correct that the only requirement is that property allotted to
each co-sharer should bear approximately the same value as

corresponds to his share. It may also not be necessary that if the

property consists of movable and immovable properties then such party

must necessarily be given a share in all movable and immovable

properties. While effecting partition of joint family properties, it may not
be possible to divide every property by metes and bounds. The
allocation of properties of unequal value may come to the share of a

member of a joint family at the time of effecting partition but for that
necessary adjustments have to be made. It can also happen that some of

the co-sharer on partition may not get any share in immovable property.
No hard and fast rule can be laid. It depends upon the facts of each case.
It depends upon the nature of the immovable property and number of
such properties as also the number of members to whom it is required
to be divided. Properties of a larger value may go to one member.
Property of lesser value may go to another. What is necessary however is
the adjustment of the value by providing for payment by one who gets

property of higher value. In short, there has to be equalization of

shares.18

18
Dr. B.K. Sharma, Hindu Law, Central Law Publication, Allahabad, 2008

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 Bibliography

 Dr. B.K. Sharma, Hindu Law, Central Law

Publication, Allahabad, 2008

 Dr. Paras Diwan, Modern Hindu Law, 22nd ed.,

Allahabad Law Agency, New Delhi, 2012

 Mulla, Hindu Law, 18th Ed., 2004, Lexis Nexis,

Butterworths, New Delhi, 2006

 http://en.wikipedia.org/wiki/Partition_Hindu_
Law_India_5371=6?8tx

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