Partition in the most general legal sense refers to any division of real property or personal property between co-owners which results in individual ownership of interests of each. It means bringing the joint family status to an end. Partition can be referred to as an action, where a coparcener finishes his relational ties with his family as a consequence of which the position of the coparcener is lost upon him and he is no longer a unit of the joint family.
Under the Hindu Law, partition implies splitting of a joint Hindu Family into smaller and independent units where a separate status is given to undivided coparceners. When the partition takes effect, the joint family ceases to be joint and in its place, different new joint families come into existence.
Under the Dayabhaga School, it means division of property in accordance with the specific shares of coparceners since the coparceners under Dayabhaga have ascertained and specific shares. Under the Mitakshara School, it is division of status and severance of interest. It doesn’t only include the separation of shares. A reason for this is the non-specification of shares. Existence of coparcenary is essential but existence of joint property is not essential for demanding partition under Mitakshara. Where there is no joint property to divide, partition can simply occur by a declaration for partition which indicates a state of mind. All that is necessary to constitute a partition is a definite and unequivocal indication of intention by a coparcener to separate himself from the family.
Severance of status is distinct from de facto partition into specific shares of the joint property as the former is a matter of individual interest, it is a desire to separate oneself and enjoy undefined and unspecified share separately from others. De facto partition is a consequence of an individual’s declaration of intention to severe but which is a bilateral action.
According to the Hindu Law, only the joint family property or the coparcenary property is subject to partition. The separate property of the members of a Hindu Joint Family cannot be subjected to partition amongst the coparceners. The individual who seeks partition, must prove that the property in question is joint family property. However, in situations where the existence of joint family property is not disputed or questioned, each coparcener is entitled to an equal share. In a suit for partition where there is no evidence to show that there was an adequate nucleus of joint family, with the Karta of the family out of which lands in question were purchased and also there is no evidence regarding income of Karta which had yielded the nucleus but defendant showing by cogent evidence that said properties were purchased by him from his own income, those properties being self-acquired properties of defendant cannot be partitioned.
Some properties are held in joint nature by two or more than two coparceners, such as when there exists a coparcenary within a coparcenary, and if a general partition takes place, these properties may be divided among such coparceners.
In M.L Subbarayya Setty v. Nagappa Setty (AIR 2002 SC 2066), it was observed by the Supreme Court that if the joint family properties consist of movable and immovable properties, then each party must necessarily be given a share in both of them. It can happen that some coparceners may not get any share in immovable property, however, no hard and fast rule can be laid as it depends on the nature of immovable property, its number, as also on the number of people among whom it is to be divided. Properties of larger value may go to one member and of lesser value to another. What is important is the adjustment of the value by providing for payment by the one, who gets a higher value of the property.
The principle of partition is that, if 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, then a money compensation should be given in place of the share which would fall.
It was ordained by Manu, ’A dress, a vehicle, an ornament, cooked food, water and female slaves, property destined for pious use and sacrifices, and a pasture ground, they declare to be indivisible. Vijaneshwara elaborating the Smriti texts said,’ Water or a reservoir of it, as a well or the like, not being divisible, must not be distributed by means of the value but is to be used by the co-heirs by turns.’
Although the general rule is that the entire joint family property is available for partition, yet there may be certain types of joint family properties which are, by their nature, incapable of division.
- Impartible estates– Property which descends to one member of the family to the exclusion of other members either because of the application of the rule of primogeniture or by a custom or by terms of grant or under any provision of law, e.g., a raj or principality.
- Property indivisible by its nature– Due to their essential nature, some properties are indivisible, e.g., animals, furniture, wells, passages, courtyards, stair cases, utensils, ornaments of a coparcener’s wife etc. If they are divided, their intrinsic value will be destroyed, therefore, these things may either be sold and its value distributed, or they are distributed by agreement against adjustment of their corresponding values. What is important is to take care of the equalization of shares in values by the payment.
- Dwelling House- The Smritikars were of the view that dwelling house should not be partitioned. But the modern law does not consider the rule as sacrosanct. A partition of a dwelling house will be decreed if insisted on, but the court will, if possible, try to effect such an arrangement as will leave it in the hands of one or more of the coparceners. If no agreement which is equitable, the dwelling house may be sold and sale proceeds divided among the coparceners.
- Family shrines, temples and idols- These are the species which can neither be divided nor be sold. The possession may be given to the senior coparcener (or to a junior member, if he happens to be the most religious and suitable among all the others) with the liberty to others for the purpose of worship at all reasonable times.
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