Family law Project

on
“PARTITION”

Submitted To:
Dr. Jaimala

Submitted By:-
Omesh Garg -233/17
Zenia Gupta - 223/17
Yuvraj Singh – 222/17
Raghav Gupta – 234/17
Amanjot Kaur – 224/17

UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY

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ACKNOWLEDGMENT
We would like to express my special thanks of gratitude to my teacher and guide Dr.
Jaimala who gave us the golden opportunity to do this wonderful project on Partition as per
Hindu personal law, which also helped us in doing a lot of Research and we came to know
about so many new things we am really thankful to them.

Secondly we would also like to thank our friends who helped us a lot in finishing this project
within the limited time. We are making this project not only for marks but to also increase
our knowledge.

THANKS AGAIN TO ALL WHO HELPED US

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Introduction
Partition means bringing the joint status to an end. On partition, the joint family ceases to be
joint and nuclear families or different joint families come into existence. There are members
of the joint family who can ask for partition and are entitled to a share also. There is another
category of the members of the joint family who have no right to partition but, if partition
takes place, they are entitled to share. A reunion can be made only between the parties to
partition.

Under the dayabhaga school, copacenors partition means division of property in accordance
with the specific shares of the coparceners, since the the dayabhaga coparceners have
ascertained and specified shares. But under the mitakshara school, partition does not merely
mean division of property into specified shares, it also means division of status or severance
of status or interest. It is because the interest of mitakshara coparceners are unspecified. Thus,
under the Mitaksharta school, partition means two things:
1) Severance of status or interest, and
2) Actual division of property in accordance with the shares so specified, known as
partition by metes and bounds

Severance of status is quite distinct for the de facto division into specified shares of the joint
property. The former is a matter of individual decision, the desire to sever him-self and enjoy
his hitherto undefined and unspecified share separately from others: while the latter is the
resultant consequent of his declaration of intention to serve but which is essentially a bilateral
action. It may be arrived at by agreement, by arbitration or by suit.

Thus partition under mitashra may be defined as the crystallization of the fluctuating
interest of a coparcenary into a specific share in the joint family estate.

Each coparcener is deemed the owner of the whole, in the same manner as other coparcener
of the whole.

According to mayukha, partition is the process whereby the member of the joint family
becomes separate. The question whether the status of the family is altered is depending on the
intention of the parties.

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Properties which are not capable of
Division
General rule is every property is liable for partition however some properties by their very
nature is not liable for partition such as-

Manu says- following properties are not subject to in division

1. Properties indivisible by nature like Dress, vehicle, Ornaments, Cooked food,

Water and female slaves, as road, garden, utensils, documents, right to way,
furniture etc
2. Properties meant for pious use, or scarifies, object for worship.
3. Separate property of a member

In respect of those properties three methods of adjustment are available-

 may be enjoyed by coparcenary by jointly or by turn
 My be allotted to the share of coparcener and its value adjusted.
 May be sold and distributed the incident.

Properties like family shrines, temples and idols can neither be divided and nor be sold.

Deduction and Provisions

Before division of properties certain deduction should be made-
 Debts
 Maintenance- to whom those are disqualified coparcenary or immediate dependant
such a female members of the joint family ( wife, daughter, son, mother, step mother,
grandmother and in certain circumstances illegitimate sons)
 Marriage- marriage of daughter by father or brother.
 Performance of ceremonies

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Persons who are entitled to Hindu Joint
Family Property
The partition of a joint Hindu family may take place at the instance of the following persons:-

1. Sons and Grand-Sons:

Under the Mitakshara Law, the right of a son, a grand-son and a great grand-son as well
as every other adult member of the coparcenary, can demand a partition even against the
consent of the others. The Bombay High Court in a case has said that a son is not entitled
to ask for a partition in the lifetime of his father without his consent, when the father is
not already separate from his own father or brothers and nephews. But this view no longer
stands valid. The Bombay High Court in a later case accepting the authority of the
Supreme Court in Puttorangamma v. Rangamma 1held that a suit for partition and
separate possession of ancestral joint family properties by one of the coparceners is
maintainable even if their father is joint with his brother and is not willing and does not
consent to such a partition. The Delhi High Court clearly maintained that a son can
demand partition during the lifetime of his father without any hindrance. This view was
again supported by the Bombay High Court in its latest pronouncement.

2. After-Born Sons:
After-born sons can be classified under two heads. Firstly, those born as well as begotten
after the partition and secondly, those born after partition but begotten before it. A son in his
mother’s womb is treated in law in existence and is entitled to re-open the partition to receive
a share equal to that of his brothers. In the case of a son born as well as begotten after
partition, if his father has taken a share for himself and separated from the other sons, then
the after-born son is entitled to his father’s share at the artition and also his separate property
to the exclusion of the separated sons and is not entitled to reopen the partition.

3. Illegitimate Sons:
An illegitimate son among the three upper classes does not have any vested interest in the
property and therefore, cannot demand a partition, although he is entitled to maintenance out
of his father’s estate. The Madras and Allahabad High Courts have held that an illegitimate
son of a Sudra may enforce a partition against his illegitimate brothers but not against his
father or his father’s coparceners. The Bombay High Court has also taken the same view but
the Calcutta High Court has taken an opposite view. The share of an illegitimate son is half of
what he would have got had he been a legitimate son and according to others; his share is half
of that of a legitimate son. The Madras High Court in a case held that after the institution of
the partition suit, the father can still fix the shares of his illegitimate sons. He can exercise
this right according to his discretion so long as the partition has not become final.

1
AIR 1968 SC 1018

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4. Widows:
A widow, though not a coparcener under Mitakshara law could still claim a partition of the
joint estate under the Hindu Womens’ Right to Property Act, 1937. Mere partition of the
estate between two widows does not destroy the right of survivorship of each to the
properties allotted to the other. The party, who asserts that there was an arrangement, by
which the widows agreed to relinquish the right of survivorship, must establish it by clear and
cogent evidence.

5. Adopted Son:
An adopted son like a natural born son would be entitled to demand a partition any time after
adoption. But where a son has been adopted by the parents and a natural son is begotten
subsequently, although the adopted son was to be treated at par with wife the natural son yet
the quantum of his share in the joint family property differed in different schools.
In Bengal, he took 1/3rd share, in Banaras he took 1/4th and in Bombay and Madras he took
1 /5th share of the property. The Hindu Adoption and Maintenance Act, 1956 has done away
with the discrimination and enabled the adopted son to get a share equal to that of natural
born son on
partition.

6. Minor Coparcener:
A minor coparcener is also entitled to affect a partition in case the joint status does not
remain
beneficial to his interest. Valar Morghulis He cannot file the suit himself but any other person
on his behalf can file such a suit. His minority or the minority of other members of the family
would not be a hindrance to affect a partition by him. If the partition has already taken effect
detrimental to his interest, he could challenge it on attaining majority.

7. Alienee:
An alienee of a coparcener’s interest, if such an alienation is valid, has a right to demand
partition. In Smt. Kailashpati Devi v. Smt. Bhuwaneshwari Devi 2, the Supreme Court held
that the purchaser of joint family property from a member of a joint Hindu family may have
the right to file a general suit for partition against the members of the joint family and that
may be the proper remedy for him to adopt to effectuate his purchase. An execution
purchaser of a member’s interest and purchaser of the same for value in Bombay and Madras
is entitled to demand partition in the rights of that member.

2
AIR 1984 SC 1802

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8. Female Sharers:
The term “female sharers” include three types of females, namely, (1) the wife, (2) widowed
mother, and (3) paternal grand-mother. These female sharers cannot demand a partition but,
however, entitled to get their share when the joint family property is actually divided on
partition. Where a suit for partition filed by a coparcener has been withdrawn, the female
sharer will not be entitled to continue the suit or to press a demand of his share.
If the suit has been dismissed for any other reasons, the mother would not be entitled to
demand
partition in the property. The mother and the grand-mother would be entitled to get a share on
partition only when the partition is effected between the sons and grand-sons. The female
sharers
would not be entitled to any share in the property merely by the fact that a suit for partition
has been filed or a preliminary decree has been obtained in the suit. So long the actual
partition is not affected; there is no question of allotment any share to them.

Section 23 of the Hindu Succession Act, 1956 postpones the right of female heirs to claim
partition of the dwelling house until male heirs choose to divide their respective shares
therein.
After passing Hindu Succession (Amendment) Act, now the position has been changed, now
Section 23 of the principal Act has been omitted by Hindu Succession (Amendment) Act.
Now daughters have the same rights as sons to reside in and to claim for partition of the
parental dwelling house

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How partition is effected
It has been seen earlier that according to the Mitakshara school partition means two things:

(a) Severance of status and;

(b) Division of property by metes and bounds.

Severance of joint status or interest

Expression of intention- what is necessary to bring about a severance is a clear and

unequivocal expression by words or conduct, of an intention to partition. Once members of
the joint family agree or express an intention to partition, severance of status takes place.
Once intention to partition is expressed it results in partition, share of each coparcener
becomes clear and once it is clear that they hold the property as tenants- in- common and not
as joint tenants.

In RAGHVAMMA VS CHENCHAMMA3, the supreme court said that there must be

intimation, indication or representation of an intention to partition, though in what form the
manifestation of an intention is made will depend upon the circumstances of each case.

It is a settled law that any adult coparcener may sever his interest by an unequivocal
communication of intention to partition. When father partitions, it does not mean that his
minor son’s interest also got severed. A coparcener expressing an intention to sever need not
assign any reason. It does not matter in what form and what manner communication of an
intention is made. But however, the expression of intention must be conscious and informed
act; documents, or even statements and admissions serving a genuine purpose, but made in
ignorance of correct legal position, may not be a satisfactory evidence of severance. Mere
separation from commonness does not necessarily amount to severance of status if not
unaccompanied by unequivocal declaration of intention to partition.

The severance of status takes place from the date when intension put into transmission. Any
vested right accrued during this time period when intension is put into transmission and
receipt will be preserved.

The question of severance of status sometimes gets complicated in the revenue cases, as joint
family may take a fake or notional partition to avoid the incidence of taxation. This problem
may arise under the income- tax and the wealth- tax act. Section 17(2) of the income- tax act,
1961, runs as under: “where at the time of making an assessment under S. 143 or S. 144, it is
claimed by or on behalf of any member of a Hindu family assessed as undivided that a
partition whether total or partial has taken place among the members of such family, the
income tax Officer shall make an inquiry thereinto after giving notice of the inquiry to all the
members of the family.” The question is: suppose the declaration of an intention to sever is
made merely to avoid the incidence of taxation, can it be taken seriously so as to imply a

3
1964 S.C. 136

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 4
genuine partition? In UDAYAN CHINUBHAI VS COMMR. OF I.T. , the supreme court
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detected and in I.T. OFFICER VS BACHOO LAL , it suspected that the arrangement was
fake. In the former case, there was an expression of an intention to sever as well as partition
of property in ‘definite portions’ between the two branches, as required by S. 25 (A)(1) of the
income tax act. Once that was established, the income tax officer and the supreme court have
to hold that partition had taken place. This means that if the fakeness is given a garb of
reality, nothing probably can be done. But as the supreme court said, if the expression of
intention is a mere preference or a sham, there is , in the eyes of law, no severance of the joint
family status.

The fakeness or genuineness of a partition should not be confused with an arrangement that a
joint family may make for convenience sake under which coparceners divide the property
while remaining joint. Such arrangements are recognised in law. They do not amount to
partition and from them no inference can be drawn that a partition has taken a place,
howsoever long an arrangement may continue unless it is shown that subsequently
coparceners agreed to partition and apportion the respective portions, of properties in their
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possession. In GIRJANANDINI VS BIJENDRA , the supreme court said that merely
because one member of a family severs his relations there is no presumption that there is a
severance between the other members. The question whether there is a severance between the
other members is one of fact, to be determined on a review of all attendant circumstances.
But if a family consisting of eight brothers and their sons, transfers all its assets to a limited
company, and the eight brothers and their sons secure equal number of shares in the
company, it amounts to severance of status.

Communication of intention to sever-

Though intention to sever may be expressed in any mode, it is necessary that intention to
sever must be communicated to other coparceners. 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
coparcener?

It is essential that intention must be communicated to the other coparcener. In BABU

RAMASHRAY VS RADHIKA7, the privy council said that severance may be effected by
giving a clear and unmistakable intention by his acts or declaration of a firm intention to
become separate.

A series of decisions of the madras high court laid down that the severance of status is
effective from the date on which communication is put into transmission. The question came

4
(1978) III ITR 584
5
1966 SC 1148
6
1967 SC 1124
7
53 MAD LW 172

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for consideration before the supreme court in RAGHAVAMMA VS CHENCHAMMA ,
subha rao, j,, after reviewing the authorities, came to the following conclusions:

(a) The communication of intention to sever must be communicated to all interested

parties. (interested parties mean the coparceners alone and not the members of the
joint family).
(b) Although the communication of intention is to be made to all interested parties, which
might be received by them on different dates, their receipt will relate back to the date
of notice, i.e., severance will be effective from the date on which the communication
was put into transmission: but this is a subject to the next proposition.
(c) The vested rights that might accrue in the interval, between the date of transmission
and receipt, are preserved. This was explained thus: “but between two dates, the
person expressing his intention may lose his interest in the family property; he may
withdraw his intention to divide; he may die before his intention to divide is conveyed
to the other members. There may be other similar instance.”

It seems that the complications that may arise on account of the above propositions were in
the contemplation of the learned judge. He adverted to four of them: (a) mode of service and
its efficacy, (b) whether service of notice on a manager would be enough, (c) whether service
of notice on major members or a substantial body of them would suffice or should be it made
on all, and (d) how notice is to be served on minor members.

As to the first question, the mode of service and its efficacy, answer has been provided by the
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supreme court in PUTTRANGANNA VS M.S. RANGAMMA , the process of
communication may vary with the circumstances of each particular case. The proof of formal
despatch or receipt of the communication by other members of family is not essential, nor is
its absence fatal to the severance of the status. What is necessary is that the declaration to be
effective should reach the person or persons affected by some process appropriate to the
given situation and circumstances of the particular case. In this case, a coparcener posted a
letter communicating his intention to sever, but before the letter could reach the destination, it
was withdrawn from the post office. But the news of the intention reached the affected parties
indirectly. The court held that communication was sufficient and effective and it could not be
withdrawn. As to the second question, no direct answer has been yet given, but subhaRAO, J
,in RAGHVAMMA indicated that communication to the karta alone will not be sufficient. It
is submitted that if it is communicated to all the coparceners, it is sufficient; no one else need
be communicated. If a notice is given to a coparcener who refuses to accept, the
communication is enough and effective. As to the last, the Andhra Pradesh high court said
that notice to the karta is notice to the minor. This, it is submitted, is correct.

It is also well established that once the intention is declared and its communication made, the
severance of status takes place, assent or dissent of the other coparceners is immaterial.

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SUPRA NOTE 3
9
SUPRA NOTE 1

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MODE OF PARTITION
A partition can be made by a definite, unambiguous declaration of intention by any
coparcener to separate himself from the family. If this is done, it would amount to division of
status, whatever mode may be used, partition may be effected by institution of a suit, by
submitting the dispute as to division of properties to arbitration, by a demand for a share in
the properties , or by conduct which evinces an intention to sever the joint family. But
separate enjoyment for the sake of convenience is not partition.

PARTITION BY SUIT-
When a coparcener files a suit for partition, it amounts to an unequivocal intimation of the
intention to sever, and consequently, severance of status takes place from the date the suit is
instituted. A decree may be necessary for working out the results of severance, i.e. , for
division of property by metes and bounds, but severance has taken place as from the date of
the filing of the suit and not from the date of the decree. In a suit for partition, the initial
burden is on the plaintiff to show that the entire property is joint family property.

IN K. RADHAKRISHNA VS SATYANARAYAN10, where all the defendants in the petition

suit were served with summons and issues were settled, one of the defendants died
whereupon the plaintiff sought to withdraw the suit, the madras high court said that a division
of status had already been brought about by the plaintiff and therefore it was not open to him
to revoke the intention. This decision has been approved by the supreme court in
PUTTRANGANNA VS RANGAMMA11.

Ordinarily, a suit for partition must include all joint family properties, and all persons
interested in the joint family properties, such as coparceners, females entitled to share, the
alienee and member having claim for maintenance or marriage expenses, should be brought
on record.

PARTITION OF JOINT FAMILY

PROPERTY-
Three brothers constituted the joint family. The canteen and restaurant business was run by
one of the brothers. The other brother failed to prove that canteen and restaurant business was
run as joint family business and that out of earning of business suit property was purchased in
name of the defendant brother. The statement of plaintiff brother that he also paid certain
amount of money to defendant for purchase of said property was not found reliable. There
was also no material to show that defendant has ever thrown that property into joint stock
10
1949 MAD 173
11
SUPRA NOTE 1

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with the intention of abandoning his separate claim in self acquired property. Suit property
would not belong to joint hindu family and plaintiff would not be entitled to claim any share
in it and have property partitioned. The amount of compensation or any sale proceed obtained
by defendant would exclusively belong to him and the plaintiff would not be entitled to claim
rendition of accounts from defendant.

Partition by agreement-
A partition may be effected between the parties by an agreement. An agreement to constitute
partition must define the shares of coparceners with an intention of an immediate separation,
otherwise such an agreement will not lead to severance of status. A deed embodying such
intention is conclusive. An unregistered partition deed can be used for collateral purposes,
such as to show intention to partition.

A partition effected by agreement between the coparcener of a tenanted house, whose

division of rent has not been made is valid and an injunction can be issued at the instance of a
coparcener that others should not interfere with the portion of property falling in his share.

Under Hindu law, an agreement to partition need not be in writing. If it is in writing, it should
clearly indicate the parties intention to partition. The parties are not free to alter or modify the
legal effect of the agreement by subsequent act or conduct. The severance of status takes
place from the date of signing of the agreement. A written agreement need not be registered if
it merely records what had happened. But if properties are divided by the agreement,
registration is necessary.

Oral partition
There is a long line of cases holding the view that oral partition can be validly made. Since
partition is not conveyance of property, the transfer of property act does not apply and there
is no other law requiring a partition to be evidenced by writing. As early as 1846, the privy
council in REWUN PRASAD VS MST. RADHA12, said that it is undisputed that a division of
joint property might be effected without an instrument in writing. Since then the courts have
consistently taken this view. The rationale behind the principle is that partition does not
involve transfer of property; it is in nature of mutual renunciation of rights. It can be made
orally.

Unilateral declaration
The severance of status may also be brought about by a unilateral declaration of intention of
partition. This, in other words, means that the consent of the other coparceners is not
necessary. But this does not mean that intention need not be communicated. The
communication of intention is necessary, whatever mode of partition one may use. An
unambiguous and definite expression of intention by a coparcener to partition is sufficient to

12
(1856) 4 M.I.A. 137

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bring about a division in status, with all the legal consequences resulting therefrom. Partition
means severance of status as well as division of property by metes and bounds. The latter is a
consequence of the former, which may be brought about by a private agreement, at the
intervention of the court, or by an arbitration, but for the former no second agency is
necessary. The former is essentially an individual act of a coparcener, in the exercise of
which he need not consult anyone and need not obtain the consent of others.

Partition by arbitration
A partition may be effected by arbitration. If members of joint family enter into an agreement
under which they appoint arbitrators for dividing the joint family property among themselves,
the severance of status takes place from the date of the agreement. The mere fact that no
award is made is immaterial. When the father or the karta refers a dispute between the
members of the family to an arbitrator, and the award directs partition, severance takes place
from the date of the award. If reference to arbitration is made by the guardian of a minor
coparcener, the award will be binding on the minor, only if it is for the benefit of the minor.
In CHANDRA KANT VS BALKRISHANA, 13in a previous suit for partition, the court passed
a preliminary decree for partition on the basis of arbitration award made in accordance with
an agreement between the parties. A commissioner was also appointed to divide the
properties on the basis of the award. The division of properties did take place in accordance
with the award, and parties obtained separate possession of the same. The suit was later on
dismissed as the parties did not pay the commissioner’s fees. After some time a second suit
for partition was filed. The supreme court held that the second suit was not maintainable as
severance of status and partition were affected in the earlier suit on the basis of the award. An
award can not be challenged even if no decree in terms of award has been passed.

Partition by conduct
The severance of status may also take place by conduct. The conduct, like a declaration of
intention, must be unequivocal, explicit and definite. From what conduct severance of status
may be deduced, will vary from case to case. There can be numerous circumstances from
which such an inference can be drawn. For instance, separation of food, worship, dwelling,
separate enjoyment of the property, separate income and expenditure, and the like are
instances of conduct from which inference of severance of status may be drawn.

Automatic severance of status- Conversion of a coparcener to a non- Hindu religion operates

as an automatic severance of status of that member from others, but it does not amount to
severance of status among the other members inter se. From the date of conversion, he ceases
to be a coparcener, and therefore, loses his right of survivorship. He is entitled to receive a
share in the joint family property as it stood at the date of conversion.

13
1970 SC 1536

13
Registration of partition deed- It is a well established proposition of hindu law and when
partition is effected by a deed of immovable property worth Rs. 100 or more, registration is
compulsory. But it can be used to show factum of partition.

Division of property by metes and bounds

Partition in its larger sense consists in a division by which 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 have a partition of their status by metes
and bound s i.e. actual division of property or continue to live together and enjoy their
property in common as before . This is a situation where joint ownership has been turned into
joint possession and enjoyment until the physical partition takes place according to the
shares standing in the name of sharers at the date of severance of status . In short partition by
metes and bound means the physical division of joint family property.

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Successive partition
In the wake of partial partition, I.e, when some of the coparceners partition and take away
their share leaving the rest joint, a problem relating to allotment of share arises when the
remaining coparceners effect a partition subsequently The question is : what shares do they
take in the subsequent partition? In other Words, when successive partition takes place, how
are shares to be determined?

Rebus sic stantibus.-Ordinarily, the doctrine of rebus sic stantibus applies. The doctrine
means that the existing facts are taken into consideration, i.e., State of the family at the time
of each partition should be taken into account. Then does it mean that the state of the family
at all time of each is to be taken into account ignoring the earlier partition or partitions? The
Bombay High Court answers this question affirmatively For example :

A (Dead)

D C

D1 D2 D3 E (Dead) F (Dead) G (Dead)

E1 F1 F2 G1

Suppose D’1, F1, F2 and G‘1 institute a suit for partition against D, D3’ and E1. There are
two branches of the family, and the coparcenary consists of D and his sons D'1, D’2
and D3, and the descendants of his brother C who is dead. The suit is filed by two of his sons
and three of his grand-nephews. D’s branch will take half and Cs branch will take half. Each
member in D’s branch will get 1/4 of 1/2, ie. 1/8. each In C’s branch the three sub-branches
are represented by E’1, F’1, and F’2, and G1‘. Each of these sub-branches will take 1/3 of
1/2, i.e., 1/6. E will get 1/6 as he is the sole representative of his branch so is G who too will
get 1/6. In F’s sub-branch there are two representatives, each will take 1/2 of 1/6, i.e., 1/12 In
the partition, all the five coparceners take away their share and D, D’3 and E‘1

15
left with their following shares :

D…………...1/8
D'1................1/8
E1.................1/6

Subsequently D dies, and D2 files a suit for partition. The Bombay High Court takes the view
that the state of the joint family at the time of D2s suit is to be taken into account, and what
happened at the earlier suit is to be ignored. This means that 5/12 is to be divided into two
shares since D3 represents one branch and E1 represents another branch. This
means D3 takes 5/24, and thus E and his branch are benefited thereby.

Equitable view-The Madras and Mysore High Courts differ from the Bombay view. These
High Courts hold that the former partition too has to be taken into account. This means, in the
above example, on the death of D, D3 represents him. and takes his share plus his
own 1/8 share, thus taking 1/8+1/8= 1/4 and B will retain his original 1/8 share. The facts of
the Madras case may be stated in the form of the following diagram :

P
(Dead)

A (Dead) B C(Dead) D(Dead)

S1 S2 S3 CS CS1 DS DS1

In a prior partition.S3 took 1/12 and left the family. In the partition suit before the court ,S1
and and S2 together claimed 1/4 (or 1/3 each) of the whole of the joint family property on the
basis that at the time of the present partition their branch was one of the four branches and
therefore their branch is entitled to 1/4 of the whole property. The Madras High Court held
that as one of the members of their branch, namely, S3, took away 1/12 in a former partition
that should be deducted from 1/4 to which their branch would otherwise be entitled. In this
view and S1 and S2 each were given 1/2 of (1/4, 1/12), i.e., 1/6 and not 1/4. Had the suit been
before the Bombay High Court, S1 and S2 each would have got 1/8 of the joint family
property.

The Madras and Mysore High Courts view seem to be more equitable. But, it appears, the
injustice cannot be totally avoided from the Madras view either.’ Raghavachariar says that
while the Madras view may be very equitable if the branches do not increase in number

16
between two partitions, but it will work unjustly if branches multiply in number.The learned
writer takes the following example : suppose a coparcenary at the time of the first partition
consists of :

A B

M N

N seprates and takes his 1/9th.Subsequently, P gets six more sons. The now consists of

A B C D E F G H

Now if A and M want partition, what share should they have? According to Bombay high
court, they together will get 1/9th of the property. According to the madras view A and M will
get 1/3 -1/9=2/9 , while we find that in remaining 7/9 th, P and his seven sons will share
equally. Thus the share of A and M will be much bigger.

Its submitted that the above is an illustration of the exceptional case. The Madras view is,on
the whole equitable and just.

17
Reopening of Partition
Under the Shastric law, Manu says ‘once a partition is made, once a damsel is given in
marriage and once a gift is made is irrevocable and irretraceable.’

A partition is generally irrevocable. The logic behind is that erstwhile coparceners hold their
shares as their separate and exclusive property, they may enter into transactions relating to
them, so as to create valid titles in favour of even third parties.

However, there are certain exception to the principle that “shares are divided only once.”

It may become imperative in certain situations to have redistribution of the properties in order
to prevent gross injustice to the members of the family. However, a plea that the partition was
unfair cannot be countenanced when the facts show that it has been undertaken after due and
proper deliberations. Thus, when readjustment of properties is not possible the entire partition
has to be reopened14.

The matter may be looked at from two angles :

(a) Readjustment of properties,-and
(b) Re-opening of partition.

Readjustment of assets
The second text of Manu quoted above talksof one case of re-adjustment of the properties
which are discovered after the distribution of assets had taken place. There may be other
cases of this nature. For instance, some properties may be left out from the partition by
mistake or oversight, or some lost properties may be recovered later on, or there may be some
items of property whose distribution has to be postponed because they were in the possession
of a third person, such as in the case of usufructuary mortgage. The process of readjustment
may also be applied to a case of slight inequities which may be adjusted without disturbing
the entire division of properties. Thus, the general rule is thatwhen readjustment can be made,
a partition need not be re-opened.

14
Paras Diwan, Modern Hindu Law 313 (Allahabad law agency).

18
Re-opening of partition
Where readjustment of properties is not possible, the entire partition has to be re-
opened.Generally, a partition can be re-opened if it was obtained by fraud, coercion,
misrepresentation or undue influence.
(1) Fraud-When the whole scheme of distribution of properties is fraudulent, it will be
ordered to be set aside, unless the person injured has acquiesced in it with full knowledge of
all material facts.For instance, when worthless assets have been given to some coparceners as
valuable assets or When a property which does not belong to the family has been allotted to
some coparcener. Or when it is unjust and unfair or detrimental to the interest of minors,
partition will be re-opened.

(2) Son in womb.-It has been seen earlier that if at the time of partition a son is in the
womb and no share is reserved for him, he can get the partition re-Opened.

(3) Adopted son.-A son adopted to a deceased coparcener by his widow after the
partition, is entitled to re-open the partition if he occupies, in law, the same position as a
posthumous son. In such a case he should be awarded his share in the property, existing at the
date of his adoptive father’s death. He is also entitled to a share in accretions to the family
property which remained with the surviving coparceners.

(4) Disqualified coparceners.-A disqualified coparcener, Who recovers from his

disqualification after the partition, can get the partition re-opened, if he was an after born son.

(5) Son conceived and born after partition.-It has been seen earlier in the
work that where the father does not take a share on partition, and a son is begotten and born
to him after partition, the partition can be reopened?

(6) Absentee coparcener-If at the time of partition a coparcener is absent and no

share is allotted to him, he can get the partition re-opened.

(7) Minor coparcener-When a partition is effected during the minority of a

coparcener, he can get the partition re-opened if he can show that partition was unfair,
prejudicial or unjust.

In Venkata Subramania v. Easwara15,the Madras High Court held that when in a partition
one member gets an excess share, and out of the income of the excess share, he acquires fresh
property, he does not hold the fresh property for the benefit of the other sharers when the
partition is subsequently re-opened on the ground of unequal partition. However, he will be
liable to account for the co-ownership funds used by him.

15
(1996) 1 Mad. 468.

19
Reunion
According to the Mitakshara:

"Effects, which have been divided and which are again mixed together are termed reunited.
He, to whom such appertain, is a reunited coparcener.”
That cannot take place with any person indifferently but with father, a brother or a paternal
uncle16.
For reunion, two conditions must be Satisfied:-
(1) A reunion can be made only between the parties to partition,
(2) A reunion can take place only: (a) between father and son, (b) between the paternal uncle
and nephew, and (c) between brothers.

Take a few examples: A partition took place between a father F and two sons A and B.
Subsequently, a son S, is born of F. A or B can reunite with their father F or With each other
but they cannot reunite with S .
Take another example, a partition takes place between two brothers, A and B. Subsequently,
a son S is born to A. A dies. S cannot reunite with his uncle B.
In these examples, S was not a party to partition, and therefore condition (1) is not satisfied.
A partition takes place between A, his son, S, and his grandson, SS. A and SS cannot reunite.
A partition takes place between P, his two sons A and B , and his two grandsons AS and BS.
AS and BS cannot unite. In both examples condition (2) is not satisfied.

It is now well settled that a reunion can take place. But whenever a . reunion takes place, it
must be strictly proved as any other disputed fact is proved. It is also well settled that to
constitute a reunion there must be an intention of the parties to reunite in estate and interest. It
is implicit in the concept of reunion that there should be an agreement to reunite between the
parties. Such an agreement need not be in writing. It may be implied from the conduct. But
the conduct must be of such an incontrovertible character that an agreement of reunion must
necessarily be implied the reform. In short, reunion must be proved by cogent, convincing
and unimpeachable evidence.

Bombay and Mithila schools.-The Bombay and the Mithila schools take a

different view. According to them, only condition (1) need to be satisfied. The
VyavaharaMayukha says : "Properly speaking, the state of reunion should be co-extensive
with the makers of partition. As for the words in the Mitakshara, ‘father and the rest’ they are
simply illustrative of the makers of partition. Hence reunion may take place even with a wife,
a paternal grandfather, a brother’s grandson, a paternal uncle’s son and the rest." To the same
effect are the texts in the VivadaRatnakara and the Vivada Chintamani. Thus, according to
these schools, reunion can take place among all the persons who were parties to the partition.
But it seems, according to Bombay school, reunion can be made only among males17.
16
Supranote 1, at 372.
17
Supranote 1, at 374.

20
All the schools agree that reunion is possible only between the parties to partition. However,
the Bombay High Court said that a reunion may take place even among the descendants of
persons who were parties to partition but such a reunion will not be a reunion in the sense in
which it is understood under the Mitakshara Law.

Reunion how effected

To constitute a reunion, there must be an intention of the parties to reunite in estate and
interest. It is implicit in the concept of a reunion that there shall be an agreement between the
parties to reunite in estate With an intention to revert to their former status. No writing is
necessary for a reunion. Persons who were parties to a registered partition deed may reunite
by an oral agreement. Since an agreement to reunite is necessary, coparcener cannot be
deemed to be reunited by the mere withdrawal of the unilateral declaration of the intention to
separate which had resulted in the division of status. When a reunion is attempted to be
established by implied agreement, the conduct must be of an incontrovertible character and
the burden lies heavily on the person who asserts reunion. The mere fact that parties who
have separated, live together or trade together after the partition, is not enough to establish
reunion. The burden of proof whether reunion has taken place is on the person who alleges
reunion. Possession of Joint family property at the time of reunion is not necessary.
Can a minor reunite-From the Privy Council decision in Balabux v. Rukhmabai18., it seems
to be clear that a minor cannot reunite, since a minor has no capacity to contract. Mayne has
argued very cogently : "It is open to the father or mother as his guardian to effect a separation
on behalf of the minor coparcener, it would be equally open to the father or mother reunite.

Effect of reunion
It is established view both under ,the Mitakshara and Dayabhaga schools that after reunion
status quo ante is fully restored.Under the Mitakshara school, both the community of interest
and unity of possession are established A Full Bench of the Madras High Court held that
reunited coparceners are not tenants-in-common, but are coparceners with rights of
survivorship, inter se and that their sons shall be deemed to be coparceners with them. The
descendants of the reunited coparceners, born after reunion, are also full fledged members of
the re-united family.

THE PARTITION ACT

An act to amend the law relating to partition

18
(1903) 30 I.A. 130.

21
INTRRODUCTIION
The law dealing with the partition of land paying revenue to the Government, besides various
local laws, was enshrined in sections 265 and 396 of the Code of Civil Procedure Act; 1882
(14 of 1882). Section 265 simply enacted that the partition would be made only by the
collector, and need not. Therefore, be noticed further. Section 396 laid down the procedure
which was to be adopted in the partition of lands not paying revenue to the Government. That
section only authorised the court to divide the property, and in some exceptional cases where
an equal division was not practicable to award a money compensation for the purpose of
equalising the value of shares, In making an equal division. in many cases, practical
difficulties were faced by the courts. The courts in such cases were either powerless to give
effect to their decrees or were driven to all kinds of shifts and expedients in order to do so. To
overcome such like difficulties and to properly amend the law relating to partition throughout
the county. The Partition Bill was introduced in the Legislature.

STATEMENT OF OBJECTS AND REASONS

The present statutory law on the subject of partition, apart from various local laws dealing
with the partition of land paying revenue to Government. is contained in sections 265 and 296
of the Code of Civil Procedure. Section 265 simply enacts that the partition or separation of a
revenue-paying estate shall be made only by the Collector. and need not, therefore, be noticed
further. as the present Bill leaves untouched all local laws dealing with the partition of such
property. Section 396 lays down the procedure which should be adopted in the partition of
lands not paying revenue to Government. That section, however. only authorises the court to
divide the property, and in some exceptional cases where an equal division is not practicable
to award a money compensation for the purpose of . equalising the value of the shares. But as
the law now stands. the court must give a share to each of the parties and cannot direct a sale
and division of the proceeds in any case whatever. Instances, however, occasionally occur
where there are inseparable practical 'difficulties in the way of making an equal division. and
in such cases the court is either powerless to give effect to its decree or is driven to all kinds
of shifts and expedients in order to do so. Such difficulties are by no means of very rare
occurrence although in many cases where the parties are properly advised they generally
agree to some mutual arrangement. and thus relieve the court from embarrassment.

STATEMENT OF OBJECTS AND REASONS

The present statutory law on the subject of partition, apart from various local laws dealing
with the partition of land paying revenue to Government, is contained in sections 265 and 396
of the Code of Civil Procedure. Section 265 simply enacts that the partition or separation of a
revenue-paying estate shall be made only by the Collector. and need not, therefore, be noticed

22
further. as the present Bill leaves untouched all local laws dealing with the partition of such
property. Section 396 lays down the procedure which should be adopted in the partition of
lands not paying revenue to Government. That section, however, only authorises the court to
divide the property, and in some exceptional cases where an equal division is not practicable
to award a money compensation for the purpose of .Equalising the value of the shares, But as
the law now stands. The court must give a share to each of the parties and cannot direct a sale
and division of the proceeds in any case whatever. Instances, however, occasionally occur
where there are inseparable practical 'difficulties in the way of making an equal division. and
in such cases the court is either powerless to give effect to its decree or is driven to all kinds
of shifts and espedients in order to do so. Such difficulties are by no means of very rare
occurrence although in many cases where the parties are properly advised they generally
agree to some mutual arrangement. and thus relieve the court from embarrassment.

It is also proposed in the Bill to give the court the power of compelling a stranger. who has
acquired by purchase a share in a family dwelling house when he seeks for a partition, to sell
his share to the members of the family who are the owners of the rest of the house at a
valuation to be determined by the court. This provision is only an extension of the privilege
given to such shareholders by section 44, paragraph 2 of the Transfer of Property Act, and is
an application of a well-known rule which obtains among Muhammedam everywhere and by
custom also among Hindus in some parts of the country.

The other sections of the Bill only deal with matters of procedure and do not call for any
detailed notice.

ACT 4 OF 1593

The Partition Bill was passed by the Legislature and was assented on 9th March. 1893. It
came on the Statute Book as THE PARTITION ACT, 1893(4 of 1893).

LIST OF AMENDING ACTS AND ADAPTATION ORDER

1. The Repealing and Amending Act, 1914 (10 of 1914).

2. Government of India (Adaptation of Indian Laws) Order. 1937.

3. Tile Part B States (Laws) Act, l95l (3 of 1951).

THE PARTITION ACT, 1893

[9TH March, 1893]

An Act to amend the Law relating to Partition

Whereas it is expedient to amend the law relating to partition; It is hereby enacted as follow:-

23
 1. Title, extent and saving.

(1) This Act may be called the Partition Act 1893.

(2) it extends to the whole of India '[except the State of Jammu and Kashmir]
'[***].2[***].

(4) But nothing herein contained shall be deemed to affect any local law providing for the
partition of immoveable property paying revenue to Government.

2. Power to court to order sale instead of division in partition suits.-

Whenever in any suit for partition in which, if institute prior to the commencement of this
Act, a decree for partition might have been made, it appears to the court that. by reason of
the nature of the property to which the suit relates, or of the number of the shareholders
therein, or of any other special circumstance, a division of the property cannot reasonably
or conveniently be made, and that a sale of the property and distribution of the proceeds
would be more beneficial For all the shareholders, the court may. If it thinks fit. On the
request of any of such shareholders interested individually or collectively to the extent of
one moiety or upwards, direct a sale of the property and a distribution of the proceeds.

3. Procedure when sharer undertakes to buy.—

(1) If, in any case in which the court is requested under the last foregoing section to
direct a sale, any other shareholder applies for leave to buy at a valuation the share or
shares of the party or parties asking for a sale, the court shall order a valuation of the
share or shares in such manner as it may think fit and offer to sell the same to such
shareholder at the price so ascertained. and may give all necessary and proper
directions in that behalf.
(2) If two or more shareholders severally apply for leave to buy as provided in
subsection (I), the court shall order a sale of the share or shares to the shareholder
who offers to pay the highest price above the valuation made by the court.
(3) If no such shareholder is willing to bury such share or shares at the price so
ascertained, the applicant or applicants shall be liable to pay all costs of or incident to
the application or applications.

I. Subs, by Act 3 of 1951, sec. 3 and Sch. for "except Part B States".

2. The word "and" at the end of sub-section (2), and sub-section (3) omitted by Act 10 of
1914, sec. 3 and Sch. 11.

4. Partition suit by transferee of share in dwelling-house

(1) Where a share of a dwelling-house belonging to an undivided family has been
tranferred to a person who is not a member of such family and such transferee
sues for partition, the court shall, if any member of the family being a shareholder
shall undertaken to buy the share of such transferee, make a valuation of such

24
 share in such manner as it thinks fit and direct the sale of such share to such
shareholder. and may give all necessary and proper directions in that behalf.
(2) If in any case described in sub-section (l)two or more members of the family
being such shareholders severally undertake to buy such share, the court shall
follow the procedure prescribed by sub-section (2) of the last foregoing section.
5. Representation of parties under disability-
In any suit for partition a request for sale may be made or an undertaking, or
application for leave, to buy may be given or made on behalf of any party under
disability by any person authorised to act on behalf of such party in such suit. but the
court shall not be bound to comply with any such request. undertaking or application
unless it is of opinion that the sale or purchase will be for the benefit of the party
under such disability.
6. Reserved bidding and bidding by shareholders.
(1)Every sale under section 2 shall be subject to a reserved bidding, and the amount of
such bidding shall be fixed by the court in such manner as it may think fit and may be
varied from time to time.
(2) On any such sale any of the shareholders shall be at liberty to bid at the sale on
such terms as to non-payment of deposit or as to setting off or accounting for the
purchase-money or any part thereof instead or paying tile same as to the court may
seem reasonable. (3) If two or more persons, of whom one is a shareholder in the
property, respectively advance the same sum at any bidding at such sale, such bidding
shall be deemed to be the bidding of tile shareholder.

7. Procedure to be Followed in case of sales.

Save as hereinbefore provided, when any property is directed to be sold under this Act, the
follow in^ procedure shall. as far as practicable, be adopted. namely:-

(a) if the property be sold under a decree or order of the High Court of Calcutta. Madras
or Bombay. in the exercise of its original jurisdiction. I[***] the procedure of such
court in its original civil jurisdiction for the sale of property by the Registrar:
(b) if the property be sold under a decree or order of any other court. such procedure as
the Nigh Court may from time to time by rules prescribe in this behalf, and until such
rules are made the procedure prescribed in the Code of Civil Procedure' in respect of
sales in execution of decrees.
I. The words "or of the Court of the Recorder of Rangoon" omitted by the Government of India
(Adaptation of indian Laws) Order. 1937.

25