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All about Partition under Hindu Law

 by LawBhoomi  May 10, 2021

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Table of Contents 
1. Introduction
2. What Property is Divisible on Partition
3. Person Entitled to Claim Partition
4. Brief on some coparceners, for whom there are some exception take place.
5. Person Who Are Entitled to A Share on Partition
6. Partition How Effected
7. Case laws on partition how effected
8. Re-Opening of Partition

Introduction
Partition means a division of joint family property within two or more parts is known as partition. .i.e
coparceners property, the individual property is not subject to the partition. It is a process by which
joint family ceases to be joint family, and nuclear family come into existence. And automatically by
law the joint status of the family come to an end.[1]

For example: –  ‘x’ ‘y’ ‘z’ are three brother in a joint hindu family, and their three sons ‘XS’ ‘YS’ ‘ZS’. If
three brothers partition, their sons not partitioning from them it will come into existence of three
joint family consisting of ‘X’ and his son ‘XS’, ‘y’ and his son ‘YS, ‘Z’ and his son ‘ZS’.

Under the dayabhaga school, partition means division of property in accordance with the specific
share of the coparcener’s property. In simple words it means division of property in Metes and
bounds, (The boundary lines of land so this basically means drawing up boundary lines and the
physical act of dividing the property), and accordingly under mitakshara school it does not merely
means division of property into specific share, In mitakshara school, the partition means two thing:

Ad removed.
Details

1. Severance of status or interest of each coparcener i.e. When every single coparcener get their
individual share in the property by mutual consent[2].
2. Actual division of property in accordance with shares so specified, known as partition by meter
and bounds. Means a physical and strict division of property and after that joint family will come
into an end.

What Property is Divisible on Partition

There are two types of property, Self-acquired property and Ancestral property. Under Hindu law no
coparcener in entitled to claim, His parental self-acquired property on partition during his parents’
life time, if father wants to gift by its will, they can give but no one can claim any self-acquired
property during the life time of that person. But if it is an ancestral property the son, the grand son
and the great grandson. All the coparceners of the joint hindu family have the right to claim
partition at any time. So only the coparcenary property can be divided on partition, Coparcenary
property is an ancestral property[3]. Also it is essential that if any property came into partition are
divisible in nature, while there are many properties in certain circumstances, capable of division or
some adjustment among the coparceners. Although the general law says that entire joint family
property is divisible in nature, but there are some exceptions which by their nature, incapable of
division this type of properties cannot be divided.  Manu ordained: ‘‘a vehicle, a dress, cooked food,
water and female slaves etc. because this type on things cannot be in divisible nature only one
person can use that so no one claim such things on partition which are not divisible in nature.
Staircases wells etc.—staircases, wells, tanks[4], pastures, roads are also the exceptions. Which are by
their nature incapable of division in these types of things an arrangement has been derived. Court
will pass an order in which this type of things is remain in common use for all the coparceners.
Hence it cannot be partitioned. [5]

Person Entitled to Claim Partition

After the amendment act of 2005 a daughter since would be a coparcener have a right to ask for a
partition. According to mitakshara and dayabhaga school, all the coparceners have a right to claim
for a partition in Hindu joint family. Coparceners are defined as an all the male member of the hindu
joint family and daughter of the hindu joint family also a coparcener after 2005. Persons who have
right to partition and entitled in the shares of joint family property are, father, son, grandson and
great-grandson, son born after partition, son conceived at the time of partition but born after
partition, son begotten and born after partition, adopted son, minor coparcener, alienee, absent-
coparcener. Also, when a coparcener interest is dissolving by succession by the application under
section 6, widow, daughter, mother, predeceased son’s daughter are the females who are entitled to
claim for a partition under section 6 of hindu succession act, 1956.

Brief on some coparceners, for whom there are some exception take place.
Son begotten and born after partition: – In this case mitakshara rule applied, there are two
circumstances from which the decision has been taken.

When at the time of partition father has taken his share on joint family property: –

In this case when father has al[6]ready taken the share on joint family property, after born son
ceases to claim/ reopening of partition this after born son will become a coparcener of his father
self-acquired property as well as his ancestor property automatically by the death of the father.

When at the time of partition father has not taken his share on joint family property: –

In this case after born son has a right to claim for a partition of his ancestor property,by re-opening
of partition.

Person Who Are Entitled to A Share on Partition

People, as mentioned in the last head, have the right to entitle a share on partition. There are few
others in the joint family who don’t have any right to partition but can be entitled to share if
partition takes place. This list of few others includes three females: father’s wife, mother and
grandmother.

Following observations are made:

1. As per Dravida school, no women are entitled to a share of partition.

2. In the case of widowed mother, a share of partition is given to her. However, if she has received
some STRIDHAN (jewels, money or something of value) from her father-in-law, the value of her
stridhan would be deducted from her share of partition.[7]

3. Before 1956, female’s share partition was her limited estate but now as per section 14, Hindu
succession Act 1956, has made it her absolute estate.

4. None provisions can adversely affect women’s right to take a share on partition.[8]

Father’s wife: If a partition happens between a woman, her husband and his son then the father’s
wife has right to be entitled to a share that’s equal to the share of the son. Incase of more than one
wife, each wife would receive an equal share to that of the son. If no share has been allotted to the
wife, she can get the case reopened. However, under Dayabhaga school, she has no such right.

Mother- in case of partition among sons, a widowed mother can take share as much as that of the
son.

According to Mitakshara school, after the death of the father, the mother or even the step mother
(even without a child) is entitled to a share. However, according to Dayabhaga school, a stepmother
without a child isn’t entitled to a share on partition.

In Mulla’s Hindu Law, the law states: “On a partition between sons by different mothers when more
than one mother is alive, the rule is first divide the property in as many shares as there are sons, and
then allot to each surviving mother a share equal to each of her sons in the aggregate portion
alloted to them. ” [(Raghavacharar, Hindu Law, (6th Ed.), 418] . This statement is confined to
Dayabhaga school only.

Grandmother- As mentioned by Mitakshara school, both the paternal grandmother and step-
grandmother have right to be entitled to a share on partition. Some situations are listed below for
this:

A. After her son’s death when partition takes place among her grandsons, a grandmother can be
entitled to a share equal to the share of a grandson. [9]

B. Incase of partition between one son and sons of predeceased son, she can be entitled to to equal
share of that of her grandson.

C. When the partition is happening between her son and his sons then there are 2 circumstances:

According to Allahabad and Bombay HCs, she can’t get any share.

However, according to Calcutta and Patna HCs she can get equal share of that of her grandson.

Partition How Effected

Partition can be effected, orally or by agreement it is not necessary that every partition has been
mandatory to be done in written agreement, but it is suggested to make a agreement while
partition. It is beneficial for everyone no dispute will arise in future if partition in done in written
form.

Communication of intention to serve- The intention to serve partion has been communicated to the
other coparceners, it is necessary that the intention to partition opf the joint family has been
communicated to the other coparceners. Without which no partition has been valid it is a essential
element.[10]

There are many ways by which partition has been effected:-

1. Partition by suit:-By instituting a suit in court of law, the intention for partition has been
communicated by filing a case it is not essential to make every member of the joint hindu family
as a essential parties in the suit.
2. Partition by will:- Anyone can make a will for his or her descendents and divide the property
among them, it is called as partition by will
 3. Partition by arbitration:- Partition by arbitration means an arbitrator has been appointed by
the court, that arbitrator is a senior/ retired advocate who have a very good experience in law,
that arbitrator will meet both the parties in some place together and help in finding some
solution and by mutual consent of all the parties partition has been take place and joint family
property has been divided among themselves.
4. Oral partition;– By oral communicate the intention of the partition and by orally decided the
partition between all the coparceners.
5. Partition by agreement:-By a written agreement between every coparceners. [11]
6. Unilateral declaration:- Consent of the other coparcener is not necessary, but that does not
been the intention has not been communicated to the other coparceners, any one can claim his
own partition but by communicating his intention to other coparceners.
7. Partition by conduct:-When the member of the family divide the joint family property in metes
and bound, and each coparcener is in separate possession and enjoyment of the share allotted
to them, it is called as partition by conduct.
8. By notice:- A partition merely require a intention to partition it may be effected  even by a
notice, whether followed by suit or n.

Case laws on partition how effected

K.radhakrishna v. Satyanarayan[12], where all the defendants in the partition suit were served with
the 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 inputtrangamma v. Ranganna in our submission in such a
suitable parties are free to recruit.

Re-Opening of Partition
A partition case can be reopened incase of fraud, mistake etc. This matter can be looked upon from
two different angles:

1. Readjustment of assets

2. Reopening of partition 

1. Readjustment of Assets: Sometimes, one might face a situation where there is a discrepancy
during the partition and it may cause a loss to the inheritor. Also, if there is slight inequities in
partition which can be adjusted with small changes.  

Thus, readjustment can be made in such cases and partition need not to be opened.
2. Reopening of partition: There are situations when readjustment isn’t possible so the partition
needs to be reopened. The situations when partition can be reopened are listed below:[13]

A. Fraud: An inheritor has the right to reopen a partition if he feels that there is some malpractice
that has been used. In this case, full idea about the fraud is required to appeal in court. 

B. Son in womb: If a son in the womb at time of partition, and no share has been entitled to him for
any reason then he has the right to reopen the partition. 

C. Son conceived and born after partition: If a son is born after partition, and he want to get a
share, he can reopen the partition. 

D. Absentee inheritor: If the partition has taken place in absence of a inheritor and he wants to get
an entitlement in the property, he can reopen the partition.

E. Adopted son: If a son is legally adopted even after the partition, he can get the partition
reopened.

Case law on reopening of partition

Venkata subramania v. Easwara , [14] the madras high court held that, when in a partition one
member gets an excess share, out of the income of the excess share, he acquire fresh property he
does not hold the fresh property for the benefit of 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 a family arrangement the enforcement of which become impracticable
can be re-opened

[1] www.google.com

[2] Nayak chand and ors. V.chander kishor, 1982 del 520

[3] Dr.paras diwan modern hindu law

[4] Partition of property of hindu law https://youtu.be/_Ef0x0O0TrU

[5] Mitakshara 1 iv, 21

[6] Kalidas v. Krishan(1869) 2 B.L.R. 103 (F.B.),

[7] Dr. Paras diwan modern hindu law