Partition is an incident of Hindu joint family whereby joint family status among the coparceners comes to an end. On partition the joint family ceases to be joint and nuclear families or different new joint families come into existence. There can be no partition unless there are at least two Coparceners because then only there would be a state of jointness among coparceners which shall cease by Partition.
Merely Division of Property is not sufficient: Under the Dayabhaga School, Partition means divisions of Property in accordance with the specific shares of the coparceners. But under the mitakshara school Partition does not merely mean division of property into specific shares, it basically means severance of status or interest. Existence of coparcenery is essential but existence of joint property is not essential for demanding Partition in Mitakshara School. Where there is no joint property to divide, there can be partition by the simple declaration for a Partition merely indicates state of mind. It is a law by which the joint family severs and the coparcenary comes to an end.
Effect of Partition
On Partition the separated member loses the membership of the old coparcenary. He is freed from the rights and responsibilities of a member thereof. The divided coparceners become tenants-in-common. There is no fiduciary relation between them. On partition the shares of the coparceners get defined and stop fluctuating further due to births and deaths in the family. Property acquired by a coparcener after Partition is treated as his separate property and devolves by succession. The share allotted to a divided coparcener will not devolve by survivorship upon the coparceners from whom he has got separated. On partition, a divided member can make a gift or a will or alienate his property for any value like his separate property. On death the share allotted to a coparcener passes to his heirs.
However, it must be noted that the share, which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth, whether they are in existence at the time of Partition or are born subsequently. Such share, however, is ancestral property only as regards his male issues. As regards other relations, it is separate, and if the coparcener dies without leaving a malc issue, it passes to his heirs by succession.
Severance of Joint Status (De jure Partition) and Partition by metes and bounds (De facto Partition)'-
Coparcenary is a creature of Hindu law. The concept involves "Community of interest, Unity of possession and Common enjoyment". Each coparcener's right extends to the whole joint family property; though each one of them has interest in the whole family property, he has no definite share therein. Where the community of interest is broken or divided and converted into a fixed share and there is no scope of the application of the doctrine of survivorship, this type of partition in strict sense is called severance of joint status or de jure partition. This can be done either at the instance of one of the coparcener (unilaterally) or by a mutual agreement among all the coparceners.
Unity of possession can be maintained even after a severance of status. The shares might become fixed, but no coparcener can lay his hands on e specific item of property claiming it as falling into his exclusive share, as which part of the property would go to which coparcener, would be clear only when unity of possession is broken and is replaced by exclusive possession. Where the Unity of Possession is broken or divided by an actual physical division of property, this type of Partition in broader sense is called partition by metes and bounds or de facto partition, This is essentially a multilateral action and may be arrived at by agreement, by arbitration or by suit.
Essence of Partition (Severance of Joint Status): Partition should pot be confused with the de facto division of property and allotment of shares, Partition by metes and bounds is not a must for completing the process of Partition. Whether the property is divided physically or not, affects only the mode of its enjoyment and management and not the nature of its tenure. If the property remains joint even after the division of the title, the property is held as tenancy-in-common and not as joint tenancy, without the incidents of fluctuation of interest and application of the doctrine of survivorship. A Partition, strictly speaking is complete the moment the Community of interest is severed or severance in joint status takes place.
Properties not subject to Partition All kinds of joint family property are not divisible by metes and bounds. Certain Properties may be impartible or indivisible. The rules in this regard may be noted as follows:— (1) 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.
(2) Property Indivisible by its nature: Certain properties are indivisible by their essential nature, e.g., animals, furnitures, wells, passages or ways, courtyards, stair cases, utensils, ornaments of a coparcener's wife etc. These things cannot be divided without destroying their intrinsic value. These things may either be sold and its value is distributed or may be distributed by agreement against adjustment of their corresponding values, What is necessary to take care is that there is equalization of shares in value by the payment of owelty, T.S. Swaminatha v. Official Receiver, (AIR 1957 SC 577). (3) Dwelling House: The smiritikars 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 is agreeable which is equitable, the dwelling house may be sold and sale proceeds divided among the coparceners. (4) Family Shrines, Temples and Idols: These are the species which can neither be divided nor 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 others) with the liberty to others for the purpose of worship at all reasonable times. Q. 2. Name some properties which are incapable of division. [U.P., (J), 1992] (5) Legislative prohibitions : legislature may also render certain property indivisible for some social cause, for example, prevention of fragmentation of holdings. In such a case thee court should not just see whether coparcener demanding partition is permitted or prohibited by legislature. Essentials For effecting severance of joint status (Partition) The mitakshara school entitled every coparcener to ask for his partition from the joint family at any time. He is not required to take permission of the other coparceners. It is of no importance that the other coparceners wish to remain united with him. A demand, in order to bring a severance of 136 status, must comprise three essentials:— (1) formation of an intention to separate from the joint family; (2) an unequivocal, unilateral and definite declaration of his intent to separate; (3) sufficient communication of this intention to the karta and if he is unavailable to other coparceners. Formation of Intention:- The coparcener must have formed an intention as to partition. He should not be in any doubt as regards his intention for the partition of the property. The thinking must be clear that he does not believe in community of interest. There should be no ambiguity with regard to his thinking for Partition. Declaration of Intention:- Once a definite intention is formed, it must be followed by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severality. Severance does indeed result by the mere declaration because severance is a particular state of mind and the declaration is merely a manifestation of that mental state. The declaration need not be accompanied with an explanation or reason or justification. No one (even court) is empowered to go into the reasons which necessitated the coparcener to take such a step. Communication of Intention:- It is implicit in the concept of “declaration", that it should be brought to the knowledge of the persons affected thereby. An uncommunicated expression/declaration of intention, at best, can amount to a desire to partition, it cannot amount to severance. What is essential is that the unequivocal communication of intention must le the conscious and informed act of the coparcener. Legal Propositions regarding Communication of Intention and the result effect :— The Supreme Court (speaking through Justice Subba Rao) has laid down certain propositions in Raghavamma v. Chenchamma, AIR 1964 SC 136 regarding the declaration by a coparcener of his intention to effect severance of status i.e. Partition. The Propositions are: the resultant effect (1) Communication is a prerequisite to effect Partition -The member who seeks his separation from the other members must make his. intention known to the other members of the family from whom he wants to separate. A declaration uncommunicated is no better than a mere formation or harbouring of an intention to separate. It is ineffective. (2) Means of Communication: The process of manifestation of one's intention varies with the facts and circumstances of each case. In Puttrangamma v. Ranganna (AIR 1968 SC 1018), Justice Ramaswami developed this proposition thus: "it is not necessary that there should be a formal despatch to or receipt by other members of the family of the communication announcing the intention to divide on the part of one member of the joint family. The proof of such a dispatch or receipt of the communication is not essential, nor its absence fatal to the severance of the status. It is, of course, necessary that the declaration should reach the person or persons affected by some process appropriate to the given situation and circumstances of the Partition case.' (3) To whom should the Intention to sever be Communicated?: In this case, the Supreme Court did not categorically answer the question as to who should be given notice of the intention to separate. Is it enough to notify the karta alone? Or is it necessary that all the major coparceners are informed? Or is it necessary that a substantial body of them or every one of them is given notice? There were only two coparceners involved in Raghavamma case. Therefore the Court avoid dealing with this question. Justice Subba Rao, however, indicated that communication to karta alone will not be sufficient. The intention to sever must be communicated to all interested parties. If a notice is given to a coparcener who refuses to accept, the communication is enough and effective. On the question how notice is to be served on minor members, the Andhra Pradesh High Court said that notice to the karta is notice to the minor. It is submitted that notice to the karta is both necessary and sufficient. It is enough because the karta is the representative of the whole coparcenary. A notice to him will be taken to be a notice to all the coparceners (Modern Hindu Law, Nagpal; 2008 edn, p. 744). (4) Effective date of the severance of joint status: The difficult question in this connection is when should the communication of intention to sever be deemed effective, from the date on which the communication is put into transmission or from the date on which it reaches the coparceners? If it is the latter date, is it the date when one of the coparceners first acquired knowledge or the date when the last of them acquired the said Niowledge? Justice Subba Rao came to the conclusion that when the Intention to separate is brought to the knowledge of all the coparceners, Partition takes place with effect from the date when the intention is framed nd expressed and not from the different dates of the knowledge of the all the coparceners. He evolved this proposition on the analogy of the doctrine of relation back known to the old Hindu law of adoption. (5) Limit on the application of the doctrine: The court put a reasonable and equitable limit on the application of the doctrine of relation back. The doctrine does not affect the rights which become vested between these two dates. If the doctrine is invoked without any limitation thereon. vested rights will be affected and settled titles may be disturbed. Principles of equity requires and common sense demands that a limitation which. avoids the confusion of titles must be placed on it. What would be more equitable and reasonable than to suggest that the doctrine should not affect vested rights? The principle of retroactivity, unless a legislative intention is clearly to the contrary, saved vested rights. As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. For example, if the karta of the family has alienated the family property in the meantime for a legal necessity the transaction will bind the separating coparcener also. (6) Communication to be completed during the lifetime of the coparcener: For the application of the doctrine of relation back, it is necessary that the communication of intention is completed during the lifetime of the coparcener. Where the communication is sent by the coparcener, but before it reaches the karta, he dies, his interest will be taken by the surviving coparceners and despite the karta receiving the communication er, no severance of status would take place. The moment a coparcener es, he loses his interest in the coparcenary property, the communication of his intention to separate after his death, IS meaningless. Therefore, where a coparcener communicates his intention to separate to the karta, through a letter, and executes a will of his share li favour of his friend, the Will became void if he dies before its receipts by the karta. VARIOUS MODES OF PARTITION Partition is the division of status. The severance in the joint status could be brought about in more ways than one. These are as follows:— (1) Partition by father during his lifetime; (2) Partition by individual coparcener through unilateral declaration; (3) Partition by Agreement; (4) Partition by Conduct; (5) Partition by Suits; (6) Partition by notice; (7) Partition by mediation or Arbitration (8) Partition by conversion; (9) Partition by marriage under special marriage Ac; (10) partition by adoption into another family; (11) partition by renunciation/relinquishment of share; (12) Partition by will; (13) partition by death of a coparcener; (14) Partition by the Abolition of Hindu joint family. Section 30 of the HSA 1956 has brought about a significant, if not a radical, amendment in this law. Section 30 has now conferred the right upon a Mitakshara coparcener also to make a testamentary disposition of his interest in the joint family property. He can utilize this right for his separation also. Thus a coparcener can make a valid Will to the effect that his interest should be separated to be donated to a hospital or a particular person. A sole surviving coparcener can make a will of the whole of the joint family property. He is the exclusive owner of that property. If no other member enters the coparcenary before his death, the will is operative. But if any member enters the coparcenary before his death, the interest of the newcomer cannot be affected by his will. Partition by the death of a Coparcener: Before 2005 Amendment, it was provided by the original Section 6 of the HSA 1956 that on the death of a male member of the Mitakshara coparcenary, the devolution of his property was to take place by survivorship and by the operation of the proviso to that Section by succession. In the latter case for finding out the share of the deceased in the coparcenary property it is presumed that Partition of the joint family property has taken place immediately before hiş death. It is not material here to see whether or not the deceased coparcener had a right to claim partition. This is a compulsive notional Partition. Effecting of Partition— The moment a clear, definite, unambiguous and unequivocal intention to separate (I separate from thee') is communicated to other coparceners during the lifetime of the coparcener demanding the partition, the division in status takes place. The following important points may be noted in this regard:- (i) Coparcener must have formed a fixed and definite intention to separate, must not merely be in contemplation of it (viz., 'l am thinking of separating'). (ii) There must be intimation, indication or representation of this intention to other coparceners. (iii) There should be a clear and unequivocal expression, by words (written or oral) or conduct (separation in food, dwelling, separate income and expenditure, separate business transaction, etc.). (iv) The intention may be communicated by telephone, post, third person (e.g. friend) etc. (v) The unequivocal communication of intention must be the conscious and informed act of the coparcener. (vi) Unless intention is brought to the knowledge of other coparceners, it is uncommunicated intention, which is no intention in the eyes of law. (vii) The partition is effected from the date on which communication is put into the transmission (i.e. letter is posted) and not from the date on which it reaches other coparceners (Raghavamma v Chenchamma AIR 1964 SC 136). (viii) If a coparcener dies after communicating his intention to separate but before it reaches other coparceners, then it cannot amount to partition. Because for a partition to be effected, the separating coparcener must communicate his intention during his lifetime. And, as noted above, an intention not brought to the knowledge of other coparceners is uncommunicated intention. Moreover, according to the doctrine of “relation back'", the vested rights that might accrue in the interval between the date of transmission and date of receipt are preserved (thus, the separating coparcener may die before his intention conveyed, with the result that his interest survives to other members). (ix) Generally, notice (communication of intention) to Karta should be there, in order to corroborate, notice must also go to other adult coparceners. (x) Going for partition is a matter of individual decision of the coparcener (unilateral act), assent or dissent of the other coparceners is immaterial. Also, motive of the separating coparcener is immaterial in this context. (xi) If third party informs and the separating coparcener says he is not authorized, there is no partition. In case third party informs and coparcener dies, he was the only one who could have said that third party was not authorized therefore valid communication has taken place, and partition is effected (Puttrangamma v Rangamma AIR 1968 SC 1018). (xii) Once there is communication, the intention to separate cannot be withdrawn, for example, when a letter was posted and letter withdrawn from the post office, but the news of contents of the letter somehow reached other coparceners, partition was complete and irrevocable (Puttrangamma v Rangamma). Importance (Effect or Consequences) of Partition— The importance of the partition lies in the following respects:— (i) By partition, the shares of the coparceners become defined and stop fluctuating as a result of births and deaths in the family (ii) After partition, a person's share is his separate property and i will pass by succession to his heirs. (iii) A member of an undivided joint family has no right to dispose of his share in the property by will, gift or alienation for value (except in some States). A divided member can make a gift devise it by will or alienate it for value like his separate property. (iv) The undivided interest of a coparcener passes on his death to the surviving coparceners. The share allotted to a coparcener on partition passes on his death to his heirs, except where he has remained joint with his own male issues. In such case it will pass to them by survivorship. (v) Wife, mother and grandmother are entitled to a share in joint property in case there is a partition between male members.
(vi) In case a coparcener separates but had no male/female issue. he would hold the property as a sole surviving coparcener. The male collaterals from whom he had separated would have no claim over his property. If he dies as a bachelor (without making a Will), and is survived by his father or brothers, from whom he had earlier separated, they would take the property as per the laws of inheritance and not under the doctrine of survivorship.