FAMILY LAW -II PROJECT

MONSOON SEMESTER
SESSION 2016-17

PARTITION IN A HINDU JOINT FAMILY

TANVI
CHITRANSHI

ID NO. - 215024
SECOND YEAR, SECTION A
 Table of Authorities
CASES

Abhay Chandra v Pyari Mohan, (1870) 5 Beng LR 347 ---------------------------------------------------------------------------- 7

Banki v Ayodhya (1974) 42 C.C.T -------------------------------------------------------------------------------------------------------- 5
China Venkata v Venkatarama, AIR 1957 AP 93 ------------------------------------------------------------------------------------- 9
Dulachand v Certificate Officer (1964) 68 CWN 349 ------------------------------------------------------------------------------- 3
Ganesh Swain v Nakadi Swain, AIR 1983 Ori 279 ----------------------------------------------------------------------------------- 6
Gurudayal v. Sarju, AIR 1952 Nag 43 ----------------------------------------------------------------------------------------------- 11
Moro Vishwanath v Ganesh (1873) 10 Bom HC 444 ------------------------------------------------------------------------------- 3
Packriswamy v. Doraiswamy, (1931) ILR 9 Rang 266 ------------------------------------------------------------------------- 10
Periasami v Periasami (1878) 5 IA 61 -------------------------------------------------------------------------------------------------- 6
Pratapmurti v. Dhanavati, (1936) 63 IA 33 ----------------------------------------------------------------------------------------- 11
Raghunadha v Brozo Kishoro (1876) 3 IA 154, 191 --------------------------------------------------------------------------------- 3
Ramchandra v Seenithal AIR 1954 Mad. 1011 --------------------------------------------------------------------------------------- 7
Ramgopal v Mohanlal AIR 1960 Punjab 226 ----------------------------------------------------------------------------------------- 3
Ranagopala v Venkataraman (1947) 2 MLJ 37, 39 PC ----------------------------------------------------------------------------- 7
Sartja Kuari v. Deoraj Kuari (1888) ILR 10 All 272 ----------------------------------------------------------------------------- 10
Selvarasu Kounder v Sahdeva Kounder, 1998 Mad. 58 --------------------------------------------------------------------------- 4
Sher Singh v Gamdoor Singh, 1997 SC 1333 ----------------------------------------------------------------------------------------- 4
Surjit Lal v Commissioner Of Income Tax, (1978) 101 ITR 776 ------------------------------------------------------------------ 3

STATUTES

The Hindu Marriages Act, 1955 ------------------------------------------------------------------------------------------------------- 10

The Hindu Succession (Amendment) Act, 2005 ---------------------------------------------------------------------------------- 11

TREATISES

Dr. Paras Diwan, Modern Hindu Law (5th edition, 1991) ------------------------------------------------------------------------ 13
Jagdish Lal, Srinivasan’s Codified Hindu Law, 646 (1st ed., 1978). --------------------------------------------------------- 13
P.P Saxena, Family Law Lectures, (2nd ed., 2007). ------------------------------------------------------------------------------- 13
S.K. Mitra, Mitra on Hindu Law, (2nd edition, 2006). ----------------------------------------------------------------------------- 13
Vijendra Kumar, Mayne’s Treatise on Hindu Law and Usage, (17th edition, 2014). ------------------------------------- 13
 INTRODUCTION

A Hindu joint family is an ancient system belonging to the Hindu society, which derives its
roots from the patriarchal system, where the oldest male member is treated as the head of the
family. The authority of this head over the lives and property of the other members of the
family was treated as unrivalled and his actions were expected to be for the general welfare of
the family. This system promoted family as a unit where common interests and welfare was
given a greater importance above the individual interests of members. The property acquired
by the any member of the family was treated as the family property as per these ancient laws,
with others member also exercising one or more rights over it.1

However, as the society progressed the independent rights of the individual members were
taken into consideration, thus leading to the development of concept of separate property and
succession laws. Even today the dual system regarding the Hindu property is recognized and
the concept of joint family as well as joint family property are held valid from both legal and
legislative perspectives.

Presently, a ‘Hindu Joint Family’, consists of “all male members descending lineally from a
common male ancestor together with their mothers, wives or widows and unmarried
daughters”2, where an unmarried daughter no longer remains a part of father’s joint family post
marriage and becomes a part of husband’s joint family. Generally, apart from being joint in
estate, an undivided Hindu family is also joint in matters of worship and food.3 Also, members
of a Hindu joint family are subjected to the presumption that they are living in a state of union
unless it is established otherwise and this presumption becomes weaker, the farther one goes
from the founder of the family.4

This project deals with the partition in a Hindu joint family, primarily focusing on the property
to be partitioned as well the persons entitled to ask as well as receive the property in event of
partition.

1
P.P Saxena, Family Law Lectures, (2nd ed., 2007).
2
Surjit Lal v Commissioner Of Income Tax, (1978) 101 ITR 776.
3
Raghunadha v Brozo Kishoro (1876) 3 IA 154, 191; Dulachand v Certificate Officer (1964) 68 CWN 349.
4
Moro Vishwanath v Ganesh (1873) 10 Bom HC 444, 468. See also Ramgopal v Mohanlal AIR 1960 Punjab
226.
Partition in a Hindu joint family essentially refers to the division of a joint Hindu family into
smaller, separate and independent units, in which the undivided coparceners are conferred with
separate status. Partition requires at least two coparceners in a joint family since it is not only
the division of the family but also puts an end to the undivided coparcenary. For instance if
partition takes place in a family consisting of A and his two sons, B and C, three separate
families of A, B and C would come into existence. The partition of a joint family in case of
Dayabhaga school would imply that the property is divided into specific shares of coparceners
which have already been ascertained. According to Mitakshara school, however, partition does
not refer only to the division of property into specific shares. It also implies division of status
or severance of status or interest.5

As far as the subject matter of partition is concerned, the plaintiff seeking it must prove the
existence of joint family property first.6 After the initial discharge of burden on plaintiff, it
shifts on defendants to prove that the property being claimed by them was not purchased by
someone outside the joint family nucleus.7 In case the existence of joint family is undisputed,
an equal share is conferred to every coparcener.8 The application and process of partition of
the Hindu joint family is different for the two schools of Hindu law, i.e. Dayabhaga and
Mitakshara and would be discussed in the next section.

PARTITION IN A HINDU JOINT FAMILY

The requirement for a coparcenary is mandatory in a Hindu joint family for the partition to take
place effectively. Coparcenary itself is based on the community of interest and unity of
possession which indicate the joint ownership of coparcenary and common physical enjoyment
respectively. Coparceners enjoy a joint ownership over the joint family property in an
undivided coparcenary until the partition takes place. Though they jointly exercise their right
over the property including the joint physical enjoyment of the same, none of the coparceners
can specify the particular share he owns before partition takes place. In addition to that, the

5
Dr. Paras Diwan, Modern Hindu Law (5th edition, 1991).
6
Selvarasu Kounder v Sahdeva Kounder, 1998 Mad. 58.
7
Vijendra Kumar, Mayne’s Treatise on Hindu Law and Usage, (17th edition, 2014).
8
Sher Singh v Gamdoor Singh, 1997 SC 1333.
interests of the members in the joint family property is subject to births and deaths in the family
due to the doctrine of survivorship and keeps fluctuating because of the same. When the
community of interest is broken in a coparcenary of Hindu joint family and shares of the
members are clearly demarcated either on insistence of any coparcener or by mutual agreement
between the members of the coparcenary, it means that now each member has a fixed share.
This can take place while keeping the unity of possession intact i.e. while the shares of
coparceners are fixed, they are not ascertained. Thus, the joint enjoyment of property can
continue even after division of community or interest or severance of status. This kind of
partition is de jure partition or a simple severance of status. Until the unity of possession
remains no coparcener can claim a specific item of property to be in his exclusive share. The
clarity regarding the ascertainment of specific shares belonging to any particular coparcener
happens only when unity of possession is broken. This happens when actual physical division
of property takes place and is also known as de facto partition or partition by metes and bounds.
Under Mitakshara school, there is only an agreement to hold the property jointly, thus de jure
partition or severance of status can take place, allowing the partition in form of coparceners
holding a defined share. The position in the Dayabhaga school is different.

Under Dayabhaga school, sons have no rights on father’s property by birth9 and there is no
coparcenary of father’s son, son’s son and so on. On death of the father, the coparcenary comes
up for the first time i.e. when sons inherit the property belonging to their father, they constitute
a coparcenary. The succession after death of father, under this school happens per stirpes, thus,
an equal share is conferred to branch of each of his sons. However, this share does not belong
to each branch since the heir takes it absolutely. Hence, his descendants either male or female
would not exercise any right upon the property acquired by him via succession. In case the heir
dies, only then the son or daughter or the widow can also become coparceners. Thus, this school
also allows females as coparceners.10 The system of joint family under Dayabhaga favours
each coparcener having a share of specific portion of joint family property assigned to him,
even if that person is a part of undivided family. Thus, partition under this law consists of
separating those shares to specific portions to allow exclusive enjoyment by each coparcener
on their portion.

9
Banki v Ayodhya (1974) 42 C.C.T. 403.
10
Dr. Paras Diwan, Supra note 5.
As far as the separate property owned by a member or members of coparcenary is concerned,
it cannot be subjected to partition amongst all coparceners in the family. When a property is
jointly owned by two or more coparceners, irrespective of whether they form a branch or not,
the property would be divisible amongst themselves only and not between them and the other
members of coparcenary.11

THE PROPERTY TO BE DIVIDED

To understand the effect of partition it is necessary to look into the nature of property being
divided. If the property is of impartible nature which, by custom or tenure, by crown grant or
by statute are descendible to a single heir, it is indivisible among the other members of family.12
There are certain other kinds of property as well, declared indivisible by nature since they are
things which could not be divided in specie such as documents evidencing a title to the
property, right of way, right to well etc. because in trying to do that the intrinsic value of
property would be either lost13 or substantially diminished. Thus, it was established that such
property must be enjoyed by the heirs jointly or in turns (such as family idols or place of
worship), or sold and the value should be distributed equally among them.14 When impartible
properties are multiple in number and their value can be reasonably ascertained at the time of
partition, which is unlikely to rise in the future such as utensils, household items, furniture etc.,
the items should be divided such that though the coparceners may not receive identical things,
the value of items given to each of them should be comparable.15 It is also important to note
that the manner of enjoyment of the property before partition, may not be conclusive as far as
the allotment is concerned nor would it affect the actual division of property.16

Another important thing to note is that before the division of joint estate takes effect, it is
necessary to make provisions for the liabilities of the same. It includes the debt due or any
claims arising against the family, charges on account of maintenance of disqualified heirs,
female members and others who are entitled to be maintained. This is because though the
coparceners hold the ownership of the property, the non-coparceners living there also have the

11
Periasami v Periasami (1878) 5 IA 61, 74.
12
Vijendra Kumar, Supra note 7.
13
Ganesh Swain v Nakadi Swain, AIR 1983 Ori 279
14
Vijendra Kumar, Supra note 7.
15
P.P Saxena ,Supra note 1.
16
Ibid.
right to possess the property and enjoy until it is joint possession. Thus, the rule has been
created so as to not leave them in a state of penury, after the partition is brought in effect. Apart
from this there also has to be a provision for marriages of the unmarried sisters. 17 Dayabhaga
school clearly states that separated brothers must provide for the funds to meet expenses of the
marriages of their unmarried sisters. Under Mitakshara school, the entitlement to share of
inheritance to daughter after death of father has been reduced to provision of marriage expenses
and maintenance till marriage, which should come out of girl’s father’s share not the whole
joint family property.18 However, in both the cases, no provision for the marriage of coparcener
would be made since he already owns a defined/ undefined share in the joint property.19

The partition of property also follows certain rules for accounting. Till the property is joint, the
Karta is held responsible for maintaining the members of coparcenary and his conduct in terms
of preferring one coparcener over the other by allocating larger funds due to reasons such as
love and affection, coparcener having a large family, special needs, weak financial situation
etc. are justified. However, at the time of partition all these considerations are of no relevance
and the rule of equal share to all brothers apply. In other words, “just as the Karta cannot be
asked for past accounts at the time of partition, no coparcener can be asked to account for the
additional money or amount that was given to him before the partition, by the Karta”. 20
Following the same, if one coparcener had been given lesser share to maintain himself, before
partition took place, that does not entitle him to a larger share at the time of partition. This,
however, applies for maintenance only. If a coparcener utilizes the amount from the joint
family funds to discharge personal debts, without the authority of the other members, it has to
be accounted for at the time of partition. Similarly, if one of the brothers prior to partition
makes provision for the funeral expenses of a female member or for the marriage of a sister,
he is entitled to have this amount adjusted at the time of partition. The same holds true when a
coparcener utilizes his separate income for the betterment of family property, unless it was of
nature of a gift.21

Similarly, at the time of partition coparceners cannot demand from Karta, to account for the
profits made by him. However, a coparcener is entitled to mesne profits from the date of the

17
Ranagopala v Venkataraman (1947) 2 MLJ 37, 39 PC.
18
Ramchandra v Seenithal AIR 1954 Mad. 1011.
19
S.K. Mitra, Mitra on Hindu Law, (2nd edition, 2006).
20
Abhay Chandra v Pyari Mohan, (1870) 5 Beng LR 347 (FB).
21
Vrijbhukan Das v Bai Parvati, (1908) ILR 32 Bom 26.
suit for partition brought by him. And if he happens to be excluded from the enjoyment of
property prior to the partition, he would be entitled to mesne profits from the date of the suit.22

ENTITLEMENT TO ASK FOR PARTITION

After discussing the nature of the property and the rules of accounting, the question arises about
who has the right to demand partition. A non-coparcener generally cannot demand partition,
except when it is a suit by an alienee to demand partition for a share alienated to him by an
undivided coparcener, who was permitted to do so.23 Under the Dayabhaga law, since the son
has no right by birth in the property held by the father, he cannot demand for partition, whereas,
in case a property is held jointly by the brothers, each having a fixed share, the partition in
metes and bounds can be demanded by any coparcener.

Under the Mitakshara school, a coparcener having attained majority and being can demand a
partition and specification of his at anytime from the Karta of the joint family. This being an
inherent right of the coparcener is not required to be justified by any explanation or reason to
either the Karta or even the court. If all coparceners decide to end their joint status, it is called
partition by agreement, which should be bona fide in nature. It is not necessary in this kind of
partition to have all members allocated equal shares and it may also include a family
arrangement within itself. The coparceners may also agree not to effect the partition of a joint
property till a certain time or event, but it should not imply postponement of partition in
perpetuity. 24

A son in who was in mother’s womb at the time of partition and was born alive subsequently,
will be assumed to have been in existence at that time and would have the right to re-open the
partition and demand his share if none was allotted to him at that time. In case of him not
coming into existence or birth of a girl child, the share would redistributed among the other
coparceners. If conceived and born post partition, his share would depend upon that of his
father. A validly adopted son would also a right by birth in the joint family property of the
adoptive family, his rights in the prior family being dead and would have a right to demand

22
Vijendra Kumar, Supra note 7.
23
P.P Saxena, Supra note 1.
24
Vijendra Kumar, Supra note 7.
partition equivalent to his adoptive father’s share as well as benefits of doctrine of
survivorship.25

A minor coparcener, unlike a major one cannot ask for partition at his will and not provide any
reason for the same. In order to effect a partition, he needs to show sheer mismanagement,
fraud, misappropriation, an alienation or conversion of joint family properties or denial of
maintenance to him and can file a suit through next friend. The court here would act as parens
partrie, and assess the complete situation. The event of partition would be decide on the test
that whether the partition in the given circumstances would be of any benefit for the minor or
not.26

A coparcener can also demand partition via his conduct which is voluntary in nature. The two
specific conducts which would bring an ipso facto status are renouncing the religion and getting
married to a non-Hindu under the Special Marriage Act, 1954. Since only a Hindu can be a
member of a Hindu joint family, converting to another religion such as Islam, Christianity leads
to automatic severance from the Hindu joint family. The person ceases to be a coparcener and
a member of Hindu joint family immediately after conversion and his share in the property is
fixed and handed over to him. The conversion does not lead to forfeiture of his rights (post
amendments by The Caste Disabilities Removal Act, 1850) in the joint family and concerning
coparcenary property, even though he immediately goes out of the family. The second
condition of marrying under the Special Marriage Act, 1954, would lead to a person being
severed from the coparcenary only when he/ she marries a non-Hindu. Getting married to a
Hindu under this Act, would result in continuing under the Hindu coparcenary as before.27

It is also worth noting that under the Hindu Law, the Father exercises superior rights in
comparison of other coparceners and by the virtue of being Patria Potesta, he can execute a
partition not only to separate himself from the family but also each of his sons including the
minors, inspite of any dissent coming from his sons since their consent is not necessary. As far
as minor’s share is concerned, the role of guardian is retained by father and a minor coparcener
can only repudiate this on attaining majority. 28

25
S.K. Mitra, Supra note 19.
26
China Venkata v Venkatarama, AIR 1957 AP 93.
27
Dr. Paras Diwan, Supra note 5.
28
P.P Saxena, Supra note 1.
PERSONS ENTITLED TO PROPERTY DURING PARTITION

On the event of the partition of the Hindu joint family property, all the corparceners have the
right to get a share of the said property. This right subsists irrespective of the fact whether the
coparcener is a minor or a major.29 The effect of such a partition is that the title of the property
gets divided amongst the corparceners and each of them receives an exclusive ownership over
their parts. In this part of the essay, the author deals with the various categories of coparceners
who are entitled share during the partition of a Hindu joint family.30
(i) Child born out of a Void or Voidable Marriage

Although a child born out of a void or a voidable marriage has been statutorily granted
legitimacy, which makes him entitled to the property of his parents 31, the distinction from a
perfect legitimacy has to be noted. In the case of a perfect legitimacy, the child will have the
entitlement to the property of the corparcenary during the partition. As opposite to this, the
illegitimate child does not have any entitlement over the property of any relation of his parents.
It has been explicitly provided under the Hindu Marriage Act, 1955 that the statutory
legitimacy in no way confers any right in the illegitimate child over the property of relations
other than the parents.32
(ii) Illegitimate Son

Under the present legal framework, the illegitimate son does not have an entitlement on any
property, except that of his mother’s. Such a child has been provided with just the right of
maintenance out of the property of the joint family,
The example of such a case is a child from a concubine, traditionally referred to as Dasiputra.
The illegitimate son born from a concubine will not have any right to ask for partition or receive
any shares during such partition. Although it has to be noted that there is no bar on family
members, to grant certain part of the property to the illegitimate son on their discretion.33 If the
father dies after such granting, but before the partition has taken place, the illegitimate son will
have the right to ask for the partition and get a share out of the said Hindu joint family property.
(iii) After-born son

29
Sartja Kuari v. Deoraj Kuari (1888) ILR 10 All 272.
30
P.P Saxena, Family Law Lectures, 308 (2nd ed., 2007).
31
S. 16, The Hindu Marriages Act, 1955.
32
Supra 26.
33
Packriswamy v. Doraiswamy, (1931) ILR 9 Rang 266.
There can be two situation regarding a after-born son during the partition of the Hindu joint
family property. First, it may be that the child has been conceived and the fact of pregnancy is
known before or during the partition is taking place. Second, where the conception is done after
the partition has been effected.34
The rule of law governing the two situations are materially dissimilar. In the first case, there is
two options on the part of the corparceners, Either the partition has to be deferred till the birth
of the child or a part has to be kept separately for the son during the partition. In the second
case, the child born after such a partition will have the coparcenary rights over the part that has
been taken by his father.35
(iv) Female Members

In the pre-2005 amendment framework,36 the female members of the family did not have any
coparcenary rights in the Hindu joint family. But it has to be noted that the absence of the
coparcener status did not impinge on their entitlement to share during the partition of the joint
family property. But under the 2005 Amendment to the Hindu Succession Act made daughters,
coparceners in the joint family. The effect of this has been that the daughters have all the rights
at par with what the corparceners enjoyed under the classical law. Effectively, the daughters
will have all the right to ask for the partition and perform all the duties of a coparcener. In this
part of the essay, the author discusses about right of the female members to the property during
its partition in a Hindu joint family.
There are certain rules that has to be kept in mind in relation to the females during a partition
of a Hindu joint family. Firstly. The females (except the daughter post 2005) do not have the
right to ask for partition or ascertain their shares prior to the partition because of the fact that
they do not have a pre-existing rights over the property.37 Secondly, if the female dies before
the partition has been effected, the rights over the property do not devolve upon the legal
representatives, rather stays with the common pool of the family. Third, that the female does
not have any right to prevent or challenge an alienation made by the Karta.38 Hereafter the
author has focussed on certain specific categories of females in light of the partition of the joint
family property.
(a) Father’s Wife

34
Jagdish Lal, Srinivasan’s Codified Hindu Law, 646 (1st ed., 1978).
35
Ibid.
36
S. 3, The Hindu Succession (Amendment) Act, 2005 (Amending Section 6 of the original Act).
37
Gurudayal v. Sarju, AIR 1952 Nag 43.
38
Pratapmurti v. Dhanavati, (1936) 63 IA 33.
In the event that there is a partition in the Hindu joint family, the wife of the father will be
entitled to a share that is equal to the share of the son. In the case that there a multiple wives of
a person, each wife will be entitled to a share equal to each of the sons.39 For example, if there
is a son and a wife in a family, each of them will be entitled one-third the share of the property.
Similarly, if there are two wives of the person and one son from a wife, then each will be
eligible for one-fourth of the share of the property.
(b) Widowed Mother

The rule of division in the case where there is partition of the property after the death of the
father is almost the same as the above discussed instance. Each of the other will have a share
equal to the brothers (son of the father)40. For example, if there is one son and one wife of the
person who has dies, then each of them will have the right over half of the property. In another
instance, if there are two wives and two sons of the person, then each will be entitled to one
fourth of the property. It has to be kept in mind that the expression ‘mother’ also includes a
‘stepmother’.

PARTITION SUIT AND EFFECTING THE SAME

A demand for partition requires three components to be effected, which include formation of
intention to separate from the family, a declaration of this intention and communication of the
same to Karta, or in his absence to other coparceners. In a suit for partition, it is necessary to
involve the entire joint property including the share if any, held by coparcener who brings in
the suit for partition. When the suit is instituted by a member of the joint family, all coparceners
have to become party to it, but if partition is sought between branches, the respective heads of
the branches can only be made the parties to the suit.41 Also, a unilateral withdrawal of intention
to separate cannot revoke the partition which has already been effected, unless it is a mutual
agreement between members of family including those, on insistence of whom the partition
was brought.42

39
P.P Saxena, Supra note 1.
40
Ibid.
41
Jagdish Lal, Supra note 33.
42
S.K. Mitra, Supra note 19.
BIBLIOGRAPHY:

 P.P Saxena, Family Law Lectures, (2nd ed., 2007).

 Jagdish Lal, Srinivasan’s Codified Hindu Law, 646 (1st ed., 1978).

 Dr. Paras Diwan, Modern Hindu Law (5th edition, 1991).

 Vijendra Kumar, Mayne’s Treatise on Hindu Law and Usage, (17th edition, 2014).

 S.K. Mitra, Mitra on Hindu Law, (2nd edition, 2006).