Partition under Hindu Law

Before the Hindu Succession Act, 1956[1]was enacted, there were two ancient schools of Hindu Law:

  • Mitakshara School

It was derived from the commentaries of Vijneshwara, written on Yajnavalkya Smriti. It is followed all over India except in the state of Assam and West Bengal. There are five types of Hindu Law:

  1. Benaras Hindu Law School
  2. Mithila Law School
  3. Maharashtra Law School
  4. Punjab Law School
  5. Dravida or Madras Law School
  • Dayabhaga School

It was derived from the commentary of Jimutavahana. It is followed only in the states of Assam and West Bengal.

Division of property is known as partition. Under Hindu Law, partition is a process whereby the joint family status among the coparcener comes to an end. If there is only one coparcener in the family then there can be no partition, there needs to be at least two coparceners in the family. Coparcener is the person who inherits the property. The property which can be divided is the coparcenary property (i.e.) ancestral property. Self-acquired property is not subject to partition.

According to Mitakshara Law School, partition means severance of joint status and actual division of property in accordance with the shares by metes and bounds.

According to Dayabhaga Law School, partition means division of property by metes and bounds.

Liabilities attached to the Property

When the joint family property is being divided it is important that the liabilities attached to it should be cleared:

  • Debts

Provisions should be made to repay the joint family debts from the joint family property.

  • Maintenance

There are certain members in the joint hindu family who are not coparceners but are entitled to maintenance and they are:

  • Unmarried Sisters till they are married
  • Mother and Grandmother
  • Disqualified coparcener and their immediate dependents
  • Widowed daughters of deceased coparceners.
  • Marriage Expenses

When a partition is taking place between a father and a son, some provision should be made for the marriage of the unmarried daughter.

  • Performance of Ceremonies

Provisions should be made for essential ceremonial expenses.

Persons entitled to Partition

The following people are entitled to get share in the partition:

  • Father

The father not only has the right to partition but can also affect the partition among the sons. Father must act with bona fide intention and should not be unfair to anyone. If he/she does any unfair distribution of the property or if partition is done with a mala fide intention, then suit for partition can be filed.

  • Son, Grandson and Great-Grandson

All of them have the right to demand partition.

  • Son born after Partition

In such a situation, the partition will be reopened, so that share can be distributed to sons born after partition.

Before Hindu Succession (Amendment) Act, 2005[2], females were not considered coparceners, but some females like mother, grandmother etc. had the right to share during partition. But after this amendment, females can also become coparceners by birth and they have the same rights and liabilities as sons.

Modes of Partition

There are various modes in which partition takes place:

1. Partition by Father – If the coparcener consists of father and sons only, then the father can make a partition. He can separate himself from his sons. He also has the power to separate his sons from one another and consent of the sons is not needed.

2. By Notice – The most essential element of partition is to express the intention to separate from the joint family and it must be communicated to other coparceners. Therefore, a partition comes into effect even by sending a notice to the coparceners.

3. By Agreement – The severance of status takes place from the date of signing the agreement.

4. By Arbitration – If the member of the joint family signs an agreement to appoint an arbitrator to divide the property, the partition comes into effect the day the agreement was signed.

5. By Conversion to another religion – If any coparcener converts to non-hindu religion, it results in severance of status as a coparcener belonging to the Joint Family. 

Reopening of Partition

Under the Hindu Law, it is possible to reopen the partition even after the partition. The following are the situation where partition can be reopened:

1. Mistake

If the members of Joint Hindu Family have left a joint family property by mistake, then partition of such property can happen later.

2. Son in Womb

If a son is in the mother’s womb when the partition takes place and is born after the partition, then he is also entitled to get his share. But if his share has not been reserved then he is entitled to reopen the partition and claim his share.

3. Absent Coparcener

If during the partition a coparcener is absent and no share is reserved for him/her, then that person can reopen the partition.

4. Fraud

If any coparcener does any mala fide activity, then in such a situation a partition can be reopened.

Reunion under Hindu Law

If a coparcener separates himself/herself from the rest of the family it results in severance of joint status. So, after partition, reunion is the only option available to regain joint status. Reunion can take place only among those members who were party to the original partition. To constitute the reunion, the parties should convey their interest to reunite. There is an agreement between the parties to reunite. Such an agreement can be either expressed or implied. According to Mitakshara Law, reunion can only take place between father and son or between brothers. Reunion brings all the separated family members together and re-establish the status of Hindu Joint Family.

Conclusion

Partition is a concept which is governed by two schools of thought (i.e.) Mitakshara and Dayabhaga. Partition results in severance of joint family status. There are various ways in which a partition can take place like by agreement, notice, arbitration etc.


[1] http://ncwapps.nic.in/acts/TheHinduSuccessionAct1956.pdf (Last Visited on 21th August, 2021 at 12:35 PM)

[2] https://egazette.nic.in/WriteReadData/2005/E_45_2012_114.pdf (Last Visited on 21th August, 2021 at 2:25 PM)

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