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Prof. Vijender Kumar Professor of Law & Commonwealth Fellow NALSAR University of Law, Hyderabad vijenderkumar@yahoo.com
of Partition Subject matter of Partition Persons entitled to claim Partition Persons who cannot claim Partition but are entitled to claim share on Partition Severance of Status How Partition is effected Re-opening of Partition Re-union of Partition
Definition of Partition It means a severance of joint family or separation of members thereof, which results in defining the shares of either all the members or the separating members.
(ii) actual division of property in accordance with the shares so specified, known as partition by metes and bound.
Coparcenary Property
Subject matter
Self-acquired Property
Where a partition of the paternal property is instituted by the sons, it is called by the learned, Partition of Property, a title of law. (Narada, XIII, 4.)
Properties which are not capable of division by their very nature: a) Dwelling House b) Family shrines, temples and idols c) Stair-cases, right of way, wells etc.
Deductions and Provisions to be made before Partition: a) Debts b) Maintenance c) Marriage expenses of daughters d) Performance of certain ceremonies and rites.
Persons who have a right to Partition and entitled to a share: - Father - Son, grandson and great-grandson - son born after partition - Son conceived at the time of partition but born after partition - Son begotten and born after partition - Adopted son - Minor coparcener - Alienee - Absent- Coparcener - Daughter as coparcener (Sept. 9, 2005)
Persons who are entitled to a share if Partition takes place: a) Fathers wife b) Mother c) Grand mother d) Coparceners widow
Some observations about Hindu females, when they get share on partition
Fathers wife or widowed mother is given a share on partition; In the Dravida School no female is entitled on partition. (Adusumilli v. Yerneni, (1974) 1 An.W.R. 440). Kerala follows the Benaras School, and not the Dravida School, and takes the view that these females are entitled to a share on partition. (Seraswathi v. Anantha, AIR 1966 Ker. 66). Prior to 1956, any share taken by a female on partition was her limited estate or womans estate. After 1956, the Section 14 of the Hindu Succession Act, 1956 has converted it into her absolute estate. No provision of the Hindu Succession Act, 1956 affects, adversely, her right to take a share on partition.
Some observations about Hindu females, when they get share on partition
Mother and wife are entitled to maintenance under the Hindu Adoptions and Maintenance Act, 1956. This does not mean that they are not entitled to a share on partition. As soon as a partition is made, the share to which a female is entitled becomes vested in her, even if no share is allotted to her. Such a share becomes her absolute estate by virtue of Section 14, the Hindu Succession Act, 1956 and after her death devolves on her own heirs.
Severance of status
Severance of status
The Supreme Court in Raghavamma v. Chenachamma, (AIR 1964 SC 136) laid down the following propositions: (a) The communication of intention to sever must be communicated to all interested parties; (b) Although the communication of intention is to be made to all interested parties, which might be received by them on different dates, their receipt will relate back to the date of notice, i.e., severance will be effective from the date on which the communication was put into transmission; but this is a subject to the next proposition; and
Severance of status
(c) The vested rights that might accrue in the interval, between the date of transmission and receipt, are preserved. This was explained thus: # But between two dates, the person expressing his intention may lose his interest in the family property; # he may withdraw his intention to divide; # he may die before his intention to divide is conveyed to the other members; # a manager of a joint family may sell away the entire family property for debts binding on the family; There may be similar other instance.
Severance of status
Consequences arose out of the propositions: i) mode of service and its efficacy; ii) whether service of notice on a Karta/ manager would be enough; iii) whether service of notice on major members or a substantial body of them would suffice or should it be made on all; and iv) how notice is to be served on minor members.
Severance of status
In Puttrangumma v. M.S. Rangamma, (AIR 1968 SC 1018), the Supreme Court answer the first proposition that the process of communication may vary with the circumstances of each particular case. The proof of formal dispatch or receipt of the communication by other members of the family is not essential, nor its absence fatal to the severance of the status. What is necessary is that the declaration to be effective should reach the person or persons affected by some process appropriate to the given situation and circumstances of the particular case.
Severance of status
In Raghavamma v. Chenachamma, (AIR 1964 SC 136) Justice Subba Rao, indicated that communication to the Karta alone will not be sufficient. It is submitted that if it is communicated to all the coparceners, it is sufficient. In Ram v. Khura, (AIR 1971 Pat. 286) held that communication to heads of the branches is enough, no one else need to be communicated. It is also held that if a notice is given to a coparcener who refuses to accept, the communication is enough and effective. In Papayya v. Venkata, (1968) 1 An.W.R. 36, held that notice to the Karta is notice to the minor. In Puttrangamma v. M.S. Rangamma, (AIR 1968 SC 1018), held that once the intention is declared and its communication made, the severance of status takes place, assent or dissent of the other coparceners is immaterial.
Mode of Partition
a) Partition by suit b) Partition by agreement c) Oral Partition d) Unilateral declaration e) Partition by arbitration f) Partition by conduct g) Automatic severance of status h) Parties to Partition i) Registration of Partition deed
Mode of Partition
a) Partition by suit Kedar Nath v. Ratan singh, (1890) 37 I.A. 161, the Privy Council said that if the suit is withdrawn before trial, the plaintiff not desiring separation, there is no severance of status.------ This decision has to be interpreted to mean before the summons are served on the defendants (i.e., before the communication of intention).
Mode of Partition
In K. Radhakrishna v. Satyanarayan , AIR 1949 Mad. 173, the Madras High Court observed that where all the defendants in the partition suit were served with the summons and issues were settled, one of the defendants died where upon the plaintiff sought to withdraw the suit and the court held 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. This decision has been approved by the S. C. in Puttrangamma v. Ranganna, AIR1963 SC 1018.
Mode of Partition
b) Partition by an agreement A partition may be effected between the parties by an agreement. In Appovier v. Rama, (1866) 11 MIA 75, the Privy Council held that intention being the real test, an agreement between the coparceners to hold and enjoy property in defined shares as separate owners operate as a partition, although actual division of properties might not have taken place. In such a case the interest of each coparcener is severed, though the property remains physically undivided.
Mode of Partition
In Pooruanchi v. Gopalaswami, 1936 PC 281, the Court held that an agreement to constitute partition must define the shares of coparceners with an intention of an immediate separation, otherwise such an agreement will not lead to severance of status. In Krishna v. Shivanath, AIR 1993 HP 65, the Court held that an unregistered partition deed can be used for the purposes, such as to show intention to partition.
Mode of Partition
In Balerishna v. Ram Narayan, (1903) 30 Cal. 738, the Court held that under Hindu law, an agreement to partition need not be in writing. If it is in writing, it should clearly indicate parties intention to partition. The parties are not free to alter or modify the legal effect of the agreement by subsequent act or conduct. In Nani v. Gita, AIR 1958 SC 706, the Court held that 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. But if properties are divided by the agreement, registration is necessary.
Mode of Partition
c) Oral Partition In Rewun Prasad v. Mst. Radha, (1856) 4 MIA 137, the Privy Council held that it is undisputed that a division of joint property might be effected without an instrument in writing. In Girja v. Sadashiv, 1916 PC 104, the Court held that 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.
Mode of Partition
d) Unilateral declaration 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 an arbitration, but for the former no second agency is necessary. The former is essentially an individual act of a coparcener, in exercise of which he need not consult any one and need not obtain consent of others. It is for him to say that he wants partition; if he says: I am separate from thee, partition takes place.
Mode of Partition
In Raghavamma v. Chencamma, AIR 1964 SC 136, the Court held that 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 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.
Mode of Partition
e) Partition by arbitration In Kasinath v. Narsingsa, AIR 1961 SC 1977: 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. In Shantilal v. Munsi Lal, AIR 1932 Bom. 498: When the father or the Karta refers a dispute between the members of the family to an arbitrator, and the arbitration Award directs partition, severance takes place from the date on which the matter was referred.
Mode of Partition
In Kamal Singh v. Sekhar Chand, AIR 1952 Cal. 447, the Court held that 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, AIR 1970 SC 1536: the Court held that in a previous suit for partition, 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 samecontd
Mode of Partition
.. After some time a second suit for partition was filed. The Supreme Court held that the second suit was not maintainable as severance of status and partition were affected in the earlier suit on the basis of the Award. An Award cannot be challenged even if no Decree in terms of Award has been passed.
Mode of Partition
f) 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. Examples: Separation of food, worship, dwelling Separate enjoyment of the property, income and expenditure, Separate business, transaction etc.
Mode of Partition
g) Automatic Severance of Status Conversion of a coparcener to a non-Hindu religion operates as an automatic severance of status of that member from others. From the date of conversion, he ceases to be a coparcener, and therefore, loses his right of survivorship. He is entitled to receive 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 see Section 19.
Mode of Partition
h) Parties to Partition In Pran Nath v. Rajendra, AIR 1986 Del. 126, the Delhi High Court held that in a suit for partition the heads of the branches are essential parties. All members of the branch need not be made parties to the suit.
Mode of Partition
i) Registration of partition deed It is 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.
Mode of Partition
There is a presumption that every partition is a total partition. The burden of proof that the partition is partial or that there has been a prior partition is on the party who asserts that it is so. In Narasingh v Adikanda, (1972) 1 CWR 977, the Court held that on partial partition the family does not cease to be joint family and the joint business continues to be joint. It is open to the parties to make partial partition.
Partial Partition
A partial partition may be: i) Partial as to property ii) Partial as to persons. i) PARTIAL AS TO PROPERTY The Privy Council in Romalinga v. Narayan, 1922 PC 126, said that it is open to the coparceners to sever their interest in respect of part of joint estate, while retaining their status of a joint family in respect of the rest of the properties.
Partial Partition
As a general rule no one can impose on others a partial partition. Similarly, no one can impose (except the father) a total partition on others. Thus, if some coparceners want partition, while the others do not, those who want partition may take away their share and the rest will continue to remain joint.
Partial Partition
Sometime a partition may be partial under compulsion of circumstances. Such will be the case when properties are in several districts. A District Court is competent to effect partition only of those properties which are within its jurisdiction.
Partial Partition
ii) PARTIAL AS TO COPARCENER If one coparcener or a group of coparceners want to separate they cannot impose separation on others inter se. Nor is there any presumption in law to this effect. In Hari Bakhsh v. Baboo Lal, 1924 PC 90, the Privy Council held that the fact of a separation having been effected among brothers raises no presumption that there was a separation of the joint family constituted and headed by each brother i.e. brothers cannot be deemed to be separated from their own sons.
Partial Partition
It is a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation among the other coparceners or they remained joint, and the burden is on the party who asserts the existence of a particular state of things on the basis of which he claims the relief. Father has power to effect partial partition between himself and his minor sons.
In a partition by metes and bounds, the shares are allotted to coparceners on the following rules: Division between father and son When partition takes place between father and sons, the rules is that each son takes a share equal to the share of the father.
When a coparcenary consists of brothers and a partition takes place between them, the rule is that they take equal shares in the joint family property.
When a coparcenary consists of several branches and a partition takes place, the rule is that each branch takes per strips (i.e., according to the stock) as regards every other branch, and the members of each branch take per capita (i.e., per head) as regards each other.
S1
S2
SS
SS1
SS2
SS3
SS4
SS5
When a coparcenary consists of all the four generations of P and his sons and grandsons and great-grandsons as shown in the next slide Since there are four generations, the partition will be in three steps:
First step
In the first step, the partition will be among P and his sons. Since P has five sons, the property will be divided into 6 equal shares.
Second step
In the second step, the shares 1/6 of the branches of S, S1, S2 and S3 will be divided among the members of each branch.
Third step
SS, SS2, SS3,SS4,SS5,SS7, SS8 and SS9 have their branches. SSs 1/30 will be divided in his branch per capita, with the result that each will get 1/30 x 1/3 = 1/90. Similarly SS2s branchs share 1/30 will go to SSS2, SSS3, SSS4, into three shares 1/30 x 1/4= 1/120. SS3s branchs 1/30 will go to him and his son SSS5 in equal shares each taking 1/60. If we apply the same rule into other ranches the result will be: SS4 and SSS6 each will 1/24; SS5, SSS7 and SSS8, each will take 1/72 share; SS7 and SSS9 will take 1/48 each; SS8, SS10, SSS11, each will take 1/18 x 1/3 = 1/54 share; SS9, SSS12, SSS13, each will take 1/18 x 1/3= 1/54 share.
contd
P
S1 SS4 SSS6
S2
S3
S4
SS
SS1 SS2
SS3
SSS5
SS5
SS6
SS7 SSS9
SS8
SS9
SSS2
SSS3
SSS4
SSS10
Doctrine of Representation
Under the Mitakshara School, coparceners interest devolves by survivorship. This is subject to the rule that where a deceased coparcener leaves male issues, the latter represent their ancestor in a partition, and take his share, provided that such issues are within the limit of coparcenary.
Doctrine of Representation
P
S1
S2
S3
S4
SS4
SSS2
SSS1
SSSS
Doctrine of Representation
If partition takes place, SSSS will not take any share, as on the death of S4, SS4 and SSS2, he got removed by more than four degrees from the last holder of the property, i.e., P, and thus lost his right of ever becoming a coparcener. Thus, if a partition takes place, in the first step, properties will be divided into four shares, i.e., per strips, P will take S1 will take . Since S2 is dead, his interest will be taken by his two sons SS1 and SS2 representing their father. In the second step, they (SS1 and SS2) being brothers (or as members of the same branch) will divide equally, i.e., each will take 1/8. Similarly since S3 and SS3 are dead, SSS1 will represent them and being the only person in this branch will take .
D
D1 D2 D3
E
E1 F1
F
F2
G1
G2
G3
G4
The family consists of the branches of two brothers, B and C, therefore, branch of each brother will take share, B being dead, D will represent him and his branch will take among themselves and by application of per capita rule, each will take of 1/2 , i.e., 1/8. C being dead his will pass by representation of his descendants. There are three sub-branches in the branch of C, of E, F,G, each branch will take 1/3 of , i.e., 1/6. This 1/6 will be divided among the members of each sub-branch according to per capita rule. Since E is already dead, his 1/6 will be taken by E1 who represents him. Fs 1/6 will be divided into two shares among F1 and F2 each taking 1/12. since G is also dead, his 1/6 will be taken by his sons G1, G2, G3 and G4 representing him and each will take of 1/6, i.e., 1/24.
Example 1
A
F G
Example 2
A
W1
W2
W3
W4
W8
W7
W6
W5
W9
Example 3
A
w
F D G
L
H
Example 4
A
Re-opening of Partition
The matter may be looked into two angles: - readjustment of properties; and - re-opening of partition: Where readjustment of properties is not possible the entire partition has to be re-opened. Generally, a partition can be re-opened if it was obtained by fraud, coercion, misrepresentation or undue influence: - fraud; - son in womb; - adopted son; - disqualified coparcener; - son conceived and born after partition; - absent coparcener; and - minor coparcener.
Re-union of Partition
A re-union can be made only between the parties to partition; and A re-union can take place only: (i) between father and son; (ii) between the paternal uncle and nephew; (iii) between brothers.