Concept of Modes of Partition under Hindu Personal Laws

The present article is written by Meenakshi Sharma during her internship at LeDroit India, discussing about the concept of modes of partition under Hindu Personal Laws.

Partition means ending the joint status of a Hindu Joint Family. The joint partition family ceases the joint existence, and nuclear family or various joint family comes into existence.

As per Mitakshara,” division is to adjust the fundamental rights by assigning specific parts of the whole” Therefore, partition possesses two different meanings as per Mitakshara Law. First of all, it means “adjusting the diversified rights of specific members to specific shares according to the entire family property.” Second, it refers to “the dissolution of the collective identity and the resulting legal consequences.

How does the partition take Effect.

It merely means demobilization of the collective identity or effecting partition means severance of the joint Hindu family’s joint status. There are two main elements of effecting a partition:

  1. De Jure Partition, which means the severance of status.
  2. De Facto Partition means the breaking up or physical division of the Joint Hindu Family Property by Metes and Bounds.

Partition is complete when de jure partition occurs, and coparceners can continue to hold property in joint possession as tenants in common without fluctuating interests.

Modes of Partition

The partition can take place according to this manner and ways:

  1. By mere Declaration to Separation –  Under this mode, the partition can be done in the manner of De Jure Partition, which implies division of joint status. Therefore, this is a matter of personal will. All that is needed to form a separation is a clear and unequivocal expression of a member of a typical family’s clear intention to separate themselves from the joint family and enjoy their sharing. When the member clearly and unambiguously stated the intention to separate and the tile of litigation for partition is a clear expression of this intention.

S.C held in case of  Puitorangamma v. Rangamma, A member of the joint Hindu family can achieve separation by making clear, unambiguous, and unilateral statements of separating from the family. There does not need to be and enjoy a different share. All coparcener does not need to reach an agreement for the division of the joint status. In this case, it does not matter whether other partners agree to the separation.

  • By notice – partition can be done by serving notice to the other coparceners by the coparcener demanding partition, clearly indicating in the notice his intention to divide the property and enjoy property severely. The notice can be subsequently withdrawn with the consent and assent of other coparceners, and if it is withdrawn, no partition will occur. 
  • Through will – Partition can occur by indicating a clear intimation to other coparceners of his desire to separate himself from the Hindu joint family or include his claim of separation. However, if the will does not indicate the testator’s intention to separate from the joint Hindu family, the will does not affect the separation of status. The father of a Hindu joint family cannot exercise the right to partition by imposing any family resolution or settlement, although he does have the right. However, a will with the above Effect will only be valid if all other adult members agree.

In the case of Potti Laxmi v. Potti Krishnamma, It was held that when a will executed by a member of the Hindu Joint Family is not sufficient to show the testator’s clear and ambiguous intention, making the will to separate from the joint Hindu family. They will do not affect De Jure Partition. 

  • By Conversion – partition can automatically occur when a coparcener converts into some other faith or religion as partition took place between him and other members of the Joint Hindu Family. Such a convertor will own his share in the family property on the date of Conversion.  In the absence of subsequent act or reunion, the Conversion of the same person again to Hinduism will not bring coparcenary relations.
  • By Marrying Under Special Marriage Act, 1954 – According to the Special Marriage Law, the Hindu marriage led to his severance with other family members.
  • By way of Agreement – The real test of the division is the intention of the standard family members to become independent owners. Therefore, although joint family members have reached an agreement to hold and enjoy definite individual shares of property as independent owners, they operate as separate members. The property itself is not physically divided.

 The two ideas of severance of joint status and de facto division of property must remain different. Since the partition under the Mitakshara is based on legal status termination, the distribution of shares may be carried out in the future. Once members of a joint family or persons in charge of different coparcenary branches agree to allocate shares, they can be regarded as a division of common shares. However, the physical division may be divided in the future.

  • Through Arbitration – An agreement reached between members of a joint Hindu family that they appoint an arbitrator to arbitrate and divide the property from that date partition. The fact that no ruling has been made does not have any evidence to give up the intention to separate. Where the award is made, the question of whether to separate all members from each other or only some of them will be determined by the structure of the award, and subsequent parties’ conduct is irrelevant. Although the arbitrator’s division of only part of the common property is controversial because the terms of the award are uncertain and incomplete, the parties are eligible to agree to the arbitrator’s division and each arbitrator’s steps; each step itself is the final award.
  • By Father – The father may also cause the partition between the sons without their consent. It is a remnant of the ancient teaching of ‘Patria Potestas’ (Patriarchy). According to the Mitakshara law, Hindu fathers can even ask for separation from their sons in the presence of the family’s Karta to restrain their sons through separation. In this way, he can fix his son’s shares or separate them. However, he has no right to divide the joint family property by will. However, he can do the same with their consent.
  • By Suits – Establishing a suit demanding partition will affect the separation of the joint Hindu family. A decree may be needed to calculate the final severance payment and the allocation of an individual share. However, the plaintiff’s position in his property rights is based on his claim whether he is entitled to the right of separation in the corresponding judgment. Even if such a lawsuit is dismissed, it will not affect the status differences that must be maintained when the lawsuit is filed.

S.C held in Girjanandini v. Brijendra, that partition can usually be achieved by bringing a suit. Father’s consent to a suit for partition is not required when such a suit is filed jointly by a Hindu joint family. Therefore,  the son is fully qualified to sue for partition, even in his father’s lifetime.

Conclusion

This paper tries to focus on Modes of Partition under Hindu Law, and the research methodology adopted in this paper is Doctrinal Research.

The concept of partition as per Hindu law-governed mainly by two schools, Mitakshara School and Dayabhaga School. The division between Hindu Joint Family means the disconnection of the state of communality and unity of ownership between family members. This can be done in various ways, i.e., through various modes, including agreement, arbitration, notice, and will. The division can be done by the method of per stripes and per capita under Mitakshara School. In contrast, under Dayabhaga School, the division of property can only be possible after Karta’s death, as there is no rule of coparcenary under Dayabhaga School.

References

  1. www.shareyouressays.com
  2. www.legalbites.in
  3. lawtimesjournal.in
  4. www.lawteacher.net
  5. www.scconline.com
  6. www.lexisnexis.com
  7. www.manupatra.com

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