INTRODUCTION

Partition is defined as the division of a property into two or more

parts. Partition under Hindu law, is the division of a joint Hindu
family’s property in order to confer separate status on the
undivided coparceners. It is important to remember that in a Joint
family with only one coparcener, no partition is feasible. A
coparcener is someone who shares an estate with others as a
coheir.
Under Hindu law, the notion of a coparcener is an integral aspect of
joint family property. Each coparcener owns an equal share of the
Joint Hindu Family’s property, and each retains an inherent title to
the land. When a Hindu joint family agrees to divide their property,
their united identity as a family is dissolved. However, in order to
establish a condition of jointness among the coparceners in a
family, at least two coparceners must be present in the family.
The common ancestor and all of his lineal male descendants up to
any generation, as well as the common ancestor’s wife/ wives (or
widows) and unmarried daughters of the lineal male descendants,
make up a Hindu joint family. Regardless of what sceptics think
about the Hindu joint family’s future, it has always been and will
continue to be an important part of Hindu culture.
The karta or manager (the English word manager is utterly
insufficient in describing his unique role) is a very significant figure
in the Hindu joint family. Karta is the family’s oldest male member.
He is the Patriarch of Hinduism. Only a coparcener has the ability
to become Karta.
A coparcenary is a small group of people who live together in a joint
family. It is entirely made up of male members. Although not
incorporated, a Hindu coparcenary is a legal entity. A coparcenary
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is made up of four generations, including the property’s last male
holder. The family’s senior member is the last male possessor of the
property.

Meaning of Partition
According to Webster’s Law Dictionary, the word “partition”
means “a separation by a court of real estate owned jointly into
two or more separately owned parcels, so that each of the former
joint owners may enjoy having his or her own share in the estate”.

According to the Mitakshara Law, it is the adjustment of the

diverse interests regarding the whole, by distributing them into
particular portions of the aggregate. Therefore, Mitakshara
partition is used into two distinct senses: firstly, the adjustment
into specific shares the diverse rights of the different members
according to the whole family property; secondly; the severance of
the joint status, with the legal consequences resulting therefrom.
It has been defined as the crystallization of the fluctuating interest
of a coparcenary into a specific share in the joint family estate.

Lord Westbury in Approvier v. Ram Subba Aiyer, held that “no

individual member of the family, while it remains undivided can
predicate of the joint and undivided property that he, that
particular member has a certain definite share.

According to Dayabhaga, the partition consists in splitting up joint

possession, i.e., separating the shares of the coparceners or in
others words dividing the property by metes and bounds among
several co-sharers.

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 Subject Matter of Partition
It should be understood that Coparcenary property is liable to
partition. Separate property is not liable to partition at all. It
belongs absolutely to the owner there of. In Poonam Mishra vs
Rajkumari Mishra, the High court has held that property acquired
subsequently even do with joint funds to be regarded as self
acquired property and it has to be excluded from partition.
Properties to which the rule of primogeniture applies cannot be
divided, e.g., a raj. Nor can family idols and places of worship be
divided.

Persons Entitled To Partition Of Property

Every coparcener has the right to partition of and is entitled to
share on the partition. Under Hindu law, right of partition is
restricted to 3 degrees that include father, grandfather and great
grand-father. All who have direct lineal descendent of common
ancestors up to 3 degrees, to the common male ancestor constitutes
coparcenary. And all such persons or members of the joint family
are entitled to share ancestral property.

1. Father - Where coparcenary consists of a father and his sons, he

has a right to bring about partition. He is competent to effect such
partitions. To execute this right father does not require the
consent of his sons[6] and it is binding on the sons as well. Father
can divide not only the property but also the corpus of the
property by meets and bounds. However such power should be
executed in good faith and interest of the family.
2. Son, grandson and great-grandson - All of them have a right to
partition, but in Bombay School, the son has no right to partition
without consent where partition has to be asked from
grandfather.

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3. Son conceived at the time of partition but born after
partition or son in womb - A child who was in his mother’s
womb at the time of the partition is treated equally and is entitled
to share in the property. he has to be treated as a living person
irrespective of gender. In case of unequal shares, he is entitled to
reopen the partition after attaining majority.
4. Son conceived and born after partition - Where son born as
well begotten after the partition, he is entitled to share of his
father at the time of partition and also his separate property to
the exclusion of the separate sons and is not entitled to reopen
the partition.
5. Adopted son - After valid adoption, he becomes a member of the
family and is entitled to the same share and is to be treated like a
natural-born. After Hindu Adoption and Maintenance Act, 1956
there is no difference left between the adopted child and natural-
born and hence can demand equal share.
6. Son of void marriage or annulled voidable marriage – Since
son of a void marriage or annulled voidable marriage is not a
coparcener, he cannot sue for partition. The contrary view is not
correct.
7. Minor Coparcener - The test for partition in case of a minor
coparcener is whether the partition is in the benefit or interest of
the minor or whether it can cause danger to the interests of the
minor person. It is pertinent to note that it’s upon the discretion
of the court to decide that a particular case falls under the ambit
of interests of the minor. As per the Hindu Law, if at all a minor
has an undivided share in a Joint Family the Karta of the Joint
family will act as a guardian of the minor. However, when it
comes to the right to demand partition by a person, the rights of
the minor and rights of major are similar in nature.
8. Alienee - Where coparcener has the right to give his interest and
such interest is bought by alienee via court sale or private sale,
such person can demand shares as he is now in the shoes of a
coparcener.
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9. Daughters – After amendment of 2005 now the daughters in
their right as coparceners can claim Partition. Daughters can also
partition with son of second wife.

In Pachi Krishnamma v Kumaram [7]daughter claimed her share

as equal to the son during partition but failed to prove his customs
saying equal share to daughters as sons. But after the amendment
has equal rights as that of son.

In case of Danamma Suman Surpur and Anr v Amar and

ors[8] the Hon’ble Supreme Court held that daughters have equal
rights in the ancestral property even if they were born before
enactment of the Hindu Succession Act.

Rules Of Partition
In the old Hindu law, two modes of division of property were
recognized: Putra bhaga and patni bhaga. When a division of
property is by the number of sons, it is known as the putra bhaga
When a division of property is according to the number of wives, it
is known as the patni bhaga. For example, if a Hindu has two wives,
P and Q and from P he has three sons, A, B and C and from Q he has
two sons E and F. If property is divided in accordance with the
former rule, each son will take 1/5. If the property is divided in
accordance with the patni bhaga rule, sons of P together will take
½ and sons of Q together will take ½. In modern Hindu law, the
putra bhaga rule operates and patni bhaga rule is obsolete.

In a partition by metes and bounds, the shares are allotted to

coparceners on the basis of the following rules:

1. Division between father and son – When partition takes place

between father and sons, the rule is that each son takes a share equal
to the share of the father. For example, A has three sons, B, C and
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D. Each of them, i.e., A, B, C and D will take ¼ share in the
joint family property.

2. Division between brothers – When a coparcenary consists of

brothers and apartition takes place between them, the rule is
that they take equal shares in the joint family property. For
instance, a coparcenary consists of five brothers A, B, C, D and
E, each of them on partition, will take 1/5 share.

3. When division takes place among branches – When a

coparcenary consists of several branches and a partition takes
place, the rule is that each branch takes per stirpes (i.e.,
according to the stock) as regards every other branch, and the
members of each branch take per capita (i.e., per head) as
regards each other. This rule may be explained by the
following examples:

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In this example, a coparcenary consists of three generations father,
sons, and grandsons. If partition takes place among the
coparceners, according to Rule 3, partition will be per stirpes. This
means that in a partition where there are branches, there are two
steps in partition:

(a) the division of properties will, first, take place between the
father and sons, i.e., between the father and the heads of branches.
The shares allotted to the heads of branches will be the shares of
the respective branches. Thus, in the above illustration, in the first
step of partition, properties will be divided between A, S, S 1 and S2.
If we apply Rule (1), viz., each son takes a share equal to the share
of the father, each one of them will take ¼ share in the property.
Although A's ¼ is A's individual share, ¼ of S, S1, S2 are not their
individual share but the share of their respective branches,

(b) the next step will be to effect partition between the members of
of each branch. The second part of Rule (3) lays down that among
the members of a branch, the distribution will be per capita (per
head). Applying this rule we find that in S's branch there are four
members including himself; if we divide 14 share of this branch
into four shares, result will be that each of S, SS, SS 1 and SS2 will
take 1/4 x 1/4 = 1/16 , if we divide S1s branch's share, we find there
are three members including S1; the share of S1, SS3 and SS4 will be
1/4 x 1/3 = 1/12 each. If we divide the share of S2s branch, there
being two members in the branch each will take 1/4 x 1/2 = 1/8.

4. Doctrine of Representation – Under the Mitakshara school,

coparcener's interest devolves by survivorship. This is subject to
the rule that where deceased a coparcener leaves male issues,
the latter represent their ancestor in a partition, and take his
share, provided that such issues are within the limit of
coparcenary. For example, take the following Diagram:

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If partition takes place, SSSS will not take any share, as on the death
of S, and SSS, he got removed by more than four degrees from the
last holder of the property, i.e., P, and thus lost his right of ever
becoming a coparcener. The share of his branch will go by
survivorship to the other coparceners. Thus, if a partition takes
place, in the first step, properties will be divided into four shares,
ie., per stirpes, P will take ¼, S1 will take ¼ . Since S² is dead, his
interest will be taken by his two sons SS1 and SS2 representing their
father. In the second step, they (SS 1 and SS2) being brothers (or as
members of the same branch) will divide equally, i.e., each will take
1/8. Similarly, since S3 and SS3 are dead, SSS¹ will represent them
and being the only person in this branch will take ¼.

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