The concept of partition is extremely ancient as per the Hindu Dharamshastras. The main reason of the existence of concept of Partition is the following of joint Hindu Family.
Meaning of Partition:
The general meaning is the division of joint status to give rise to individual families. But there is difference in the meaning of Partition between Mitakshara and Dayabhaga School.
Under Mitakshara Partition means:
1. Separation of joint status
2. Division of property
Chikuri vs Bhabuti AIR 1982 N.O.C 209 Patna
It was said that joint property is also divided along with joint status and the members separated retain their share of property as separate property, after the death of such members, the property is inherited by their heirs.
Whereas in Dayabhaga School, the interest of coparceners are separate. Therefore, the meaning of Partition under this school is division of joint property.
The general rule of Partition takes place of complete property is that the Partition of complete property and complete coparceners. But, it is not necessary that whole property shall be divided. Partial Partition may also be performed.
The subject matter of partition is of two types:
1. Such property which can be easily divided, like money, clothes, jeweler, shares, etc.
2. Such property which cannot be divided due to its nature and character like residential house, ancestral idols, temple, etc., water reservoir, stairs, ways, etc.
The division of property may be done as:
1. Certain property may jointly be used like water, reservoir, stairs, temples, idols, etc.
2. Certain property may be used by the coparceners one by one like prayer in temple, etc.
3. Certain property may be given to one coparceners and certain property to another coparceners and in case of increase or decrease in value it can be balanced
4. Certain property may be sold and the proceeds of sale may be divided.
The following persons have been considered to be entitled to have share in property on partition:
2. Son, grandson, grandson son
3. Son born after partition
4. Son in womb after partition
5. Adopted son
6. Illegitimate son
7. Wife of the father
9. Grand mother
Ramnath Nararyan Pey vs. Eknath Nararyan Pey AIR 2016 N.O.C 262 Bombay
All sons were doing business jointly. Whole property was acquired by the property of joint family. Having purchased a property in the name of elder brother he does not become its ultimate owner. Plaintiff (brother) was considered entitled for making division and to get his share.
Methods of partition:
There are several methods of partition. Partition is division of status and property; therefore it is a fact of the desire or willingness of any member.
Ways of partition can be declaration of separation, notice, presentation of suit, agreement, appointment of arbitrator, conversion, sale of interest, marriage under special marriage act, other activities.
Re – opening of partition:
1. If partition was under fraud or mistake.
2. If no share was kept for child in womb at the time of partition
3. If the position of adopted child was equivalent to a child in womb
4. If any disqualified shareholder becomes qualified after partition.
5. A child in womb or born after the partition can claim re – opening, if the father has not taken any share.
6. absent coparcener at the time of partition, if his share is not kept.
7. If the partition was unjust or unfair.
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