This is the intellectual property of Debayan Banerjee, referenced from DF Mulla.

For understanding of Family Law paper, 5th Semester at NLU Assam.

Any use outside educational purposes are strictly prohibited.
Not for distribution without prior permission.
Dated - 30th November, 2015

HOW PARTITION IS EFFECTED

Raghavamma v. Chenchamma, 1964
The severance of status should be
either oral, by notice, by conduct or by deed of partition,
of such clear and unequivocal intention to partition.
Further, the severance of status takes place on the date
when communication was sent,
and NOT when it was received.
Furthermore, all vested rights accrued after such communication,
would not be part of the partition,
and if such coparcener dies between the two dates,
the partition is not affected (relation back).
Partition, in its larger sense, consists in a division
by which the share of each coparcener
with respect to all or any of the joint property
is fixed,
and once shares are defined,
the partition in the sense of severance of status
or disruption of joint status is complete.
But after the shares are so ascertained,
the parties might elect either to
1. have a partition of their status by metes and bounds, i.e. actual division of
property; or
2. continue to live together and enjoy their property in common as before.
Whether they did one or the other will effect the mode of enjoyment,
but not the tenure of the property or their interest in it.
In short, partition by metes and bounds means the physical division of joint fam
ily property.

MODE OF PARTITION
Partition by Agreement It follows that
an agreement between the members of a joint family
to hold and enjoy the property

in certain defined shares

as separate owners operates as partition,
ALTHOUGH the property itself may not be actually divided by metes and bounds.
Under Mitakshara Law, partition is effected
on the severance of joint status,
and the allotment of shares may be done later.
Partition by Arbitration An agreement between the members of a joint family
where by they appoint an arbitrator
to arbitrate and divide the property operates as a partition.
Partition by Suits The institution of a suit for partition
ipso facto effects the immediate severance of the joint family status.

PROCEDURE OF PARTITION (4 step process)

Pre-step: Who have a right to partition (who can open a partition)?
1. The father
2. Sons, grandsons and great grandsons.
(In bombay, son is not entitled to open a partition without assent from dad,
if dad is joint with his own father and brother or sister)
3. Daughters AFTER 2005.
4. On behalf of a minor son/daughter for his/her benefit by INSTITUTION OF SUIT
or through PARTITION BY AGREEMENT.

Step 1: Determine the subject of partition.

ONLY coparcenary property.
NOT separate property.
NOT property descending upon one member of the family
by custom to the exclusion of others, example raj or principality.
NOT right of way, example passage, staircase, etc.,
provided it was not already allotted to a particular member.
NOT idols and places of worship. However, such idols and places of worship may b
e given
to senior member and enjoyed by all coparceners jointly.
Animals, furniture, etc. indivisible property are:
either sold and divided monetarily,
or valued and enjoyed by one coparcener.
Intrinsic value is to be retained for property,
and if such cannot be retained,
then it must be sold and divided equally.
A property partitioned to a coparcener is separate property w.r.t. the divided m
embers,
but ancestral property w.r.t. male or female issue.

Step 2: Clear incidents of partition

A. Clear the debts.

For joint family property:
Unidivided interest to a coparcener may be attached in his lifetime
in execution of a decree against him
for his personal debt and may be sold.
Father of Hindu joint family
enjoys full right to sell or mortgage the joint family property
including the sons interest therein
to discharge antecedent debt.
A sale of joint family property,
which is made to discharge a debt taken at that very time
or as a part of the sale transaction,
is not valid
because the debt in this case is not an antecedent debt.

For separate property:

Any heir of a deceased Hindu is not personally liable
to pay the debts of the deceased.
He is only liable to the extent of the assets inherited by him
from the deceased.

B. Set aside marriage expenses

Marriage expenses of female issues are to be kept aside,
in lieu of her right to maintenance and share on partition.
ONLY for fathers daughters or sisters,
NOT of sons daughters as it such sons liability to reserve his daughters marriage e
xpenses.
NOT for males issues.

C. Set aside funeral ceremony expenses

Funeral ceremony expenses of mother
are bound upon the sons to be divided equally.

D. Mode of taking accounts

When a coparcener suing for partition
is entirely excluded from the enjoyment of property,
he can ask for accounts.
What is meant by taking of accounts
is an enquiry into the joint family assets.
It means preparing an inventory
of all the items of the joint family property.
However, all advances made to a coparcener

which he would not be entitled as a coparcener,

such as money advanced for the payment of his debts
are to be accounted for
and would be treated as part of joint family funds.
If a coparcener has made improvements or has repaired,
the joint family property out of his SEPERATE earning,
such amount will constitute a debt to him from the rest of the family,
unless it amounts to throwing into the common stock
or a gift by him to the joint family.
After the severance of status has taken place,
the Karta is bound to render accounts of all expenditure and income
in the same manner as a trustee or an agent is bound to render accounts.
This means that from the date of the severance of status,
the Karta is bound to account for all mesne profits.
For instance, when severance of status is brought about by filing a suit, the Ka
rta is liable to accountfor mesne profits from the date of the filing of the sui
t. When a coparcerer seeks an account of mesne profits, what he is seeking is on
ly an account of the profits of property subsequent toseverance of status; profi
ts are appurtenant to his right to a share of the family property.

Step 3: Determine persons entitled to share on partition.

All coparceners are entitled to a share on partition.
1. Sons, grandsons and great grandsons, naturally born or adopted.
2. Daughters AFTER 2005.
3. Only on behalf of a minor son/daughter for his/her benefit
or through partition by agreement.
4. Son begotten at the time of partition, but born after partition.
5. Absent coparcenor, with same footing as a minor.
6. Wives (wife exempted in dravida school)
7. Widow mother and step-mothers (mother exempted in dravida school)
8. Grandmother
On determining share of wife and also of mother,
her stridhana, if gotten from husband or father-in-law, must be excluded from he
r share.
Son/Daughter begotten and born AFTER partition is entitled to a share in 2 ways
1. if father has taken a share after partition,
the newborn would get that share wholly,
after death of the father.
2. if father has not taken a share,
such newborn can reopen the partition.

Step 4: Allotment of shares

1. Between father, wife, sons and/or daughters, each take one share.
2. If HJF consists of brothers and/or sisters, each take one share.
3. Each branch takes as per the doctrine of per stripes (according to stock) w.r
.t. other branch.
(if there are 3 branches, each branch would get 1/3 share each)
4. Each member of branch takes as per the doctrine of per capita w.r.t. other me

mbers of branch.
(if 1/3 is given per stripes to branch, and there are 2 members, each member wou
ld get 1/2 multiplied by 1/3, i.e. 1/6 each)
5. If certain members want to partition, the other members would continue to be
joint.
(if A and B want to sever from D and E, all being brothers, then each would get
1/4 share, and D and E would still be joint, their share would be 1/4+1/4=1/2 jo
intly)
6. On death of a coparcener, leaving male or female issue, his right to share wo
uld be represented by such issues, as regards to the doctrine of representation.
7. Widows, predeceased sons widow and predeceased sons predeceased sons widow are e
quated too.

DISQUALIFICATIONS
1. Converts sever their joint family status,
between himself/herself and other members of the coparcenary.
2. A marriage under Special Marriage Act,
results in severance of joint family status,
of the newly wed and other members of the coparcenary.

NOTIONAL PARTITION
In case a coparcener dies intestate, then,
by this fiction of law
it is presumed that an intention of partition had been there
and partition took place immediately before the death of the coparcener
and this way, the parts of the intended person is to be demarcated.
In other words, when a Hindu male dies,
there is a notional partition.
Notional Partition is for the purpose of enabling succession and computation
of an interest which was otherwise liable to devolve by survivorship
and for the ascertainment of the shares in that interest
of the relatives mentioned in Class I of the Schedule.
Under the provisions of section 6 of the Hindu Succession (Amendment) Act, 2005,
where a Hindu male dies intestate on or after commencement of the Act,
having at the time of his death an interest in the coparcenary property
of a HJF governed by Mitakshara Law,
leaving behind a female heir of the class I category,
then his interest in the coparcenary property
shall devolve by succession under that Act
and not by survivorship.
The interest of the deceased will be carved out for devolution
as if a partition had taken place

immediately before the death of the deceased.

The notional partition only crystallizes the share due to the female heir
and does not disrupt the joint family.
Notional partition is not real partition,
but a fiction of law.
Under doctrine of survivorship,
the eldest male got the coparcenary property to himself.
Under the doctrine of notional partition,
the property is divided fictitiously to all members of the HJF.
Notional partition follows the same procedure,
in accordance to the rules of partition.

PROCEDURE OF NOTIONAL PARTITION

For male Hindu:
Step 1: Determine share of dead coparcener and his heirs
This is done through the procedure for partition,
presuming coparcener to be alive.
See Section 6(3) for notional partition.
Step 2: Divide the property share of dead coparcener according to per stripes.
See Section 8 (order: Class I >Class II > Agnates > Cognates).
and Section 10 (order: sons/daughters/mother (if alive) of intestate 1 share each;
widow 1 share;
heirs in branch of predeceased son/daughter will take 1 share per branch;
each heir of predeceased sons branch will be divided equally amongst sons/daughte
rs/widow;
each heir of predeceased daughters branch will be divided equally amongst sons/da
ughters).
Step 3: Divide the separate property of the dead coparcener according to per str
ipes.

For female Hindu:

Step 1: Determine share of dead coparcener and her heirs.
Step 2: Divide the property share of dead coparcener according to per stripes.
Husband, sons and daughters would get 1 share each
from the share of the dead coparcener.
See Section 15 (order: sons/daughters/husband of intestate 1 share each
AS WELL AS heirs in branch of predeceased son/daughter will take 1 share per bra
nch;
heirs of husband;
mother and father;
heirs of father;
heirs of mother).
and Section 16 (preference order of entry to the exclusion of other entries)
Step 3: Divide the stridhan of the dead coparcener according to rules of divisio
n of stridhan.

RULES OF DIVISION OF STRIDHAN

1. uterine brother;
2. mother;
3. father;
4. fathers female heirs
5. mothers female heirs

STRIDHAN
Stridhan property are:
1.
2.
3.
4.
5.
6.

gifts and bequests from relations;

gifts and bequests from strangers;
property purchased by income of stridhan; and
property obtained in lieu of maintenance;
property acquired by self-exertion;
property obtained before marriage.

Womans Estate are:

1. property inherited from a male or female (except bombay school, inherited fro
m female = stridhan);
2. property obtained on partition.
Stridhan is absolute ownership.
Womans estate is limited ownership.