| introduction | jurisprudence |
| relevant Case laws | A. Raghavamma vs A. Chenchamma Puttrangamma vs Ranganna Kakumanu Pedasubhayya vs Akkamma |
| Present problem | question related |
| conclusion | Decision as per our reasoning |
‘Partition’ means to divide into parts or to separate, and under Hindu law, it generally means a division or splitting of a joint Hindu family into smaller, separate and independent units, with conferment of separate status on the undivided coparceners. For a partition, at least two coparceners must be present, and no partition can take place if there is only one coparcener, in which case, he would be called a sole surviving coparcener.
After partition, coparceners ends, joint tenant becomes tenant in common, joint property becomes separate, community of interest ends, fluctuating shares become fixed, etc. There are 2 types of partition:
- De jure Partition: In an undivided coparcenary, all existing coparceners have a joint share in the property, and none of the coparceners can tell the exact amount of share that he holds in the property until the division takes place. Simply said, it is a partition that has occurred but no actual possession has been assigned.Due to the sheer law of survivorship, the interests of the coparceners can fluctuate according to births and deaths of the other coparceners. However, a De Jure division occurs when the community interest is broken down at the request of one coparcener or by mutual agreement that the shares are now clearly set or demarcated.
- De facto Partition: After the severance of Joint status or split of community interest, unity of possession, which refers to the coparceners’ enjoyment of property, may continue. Although the number of shares in the property may not be specified, no coparcener waives his right to claim any property as his exclusive share. “A de facto partition occurs when the Unity of Possession is broken up by a real division of property.” Simply said, in a De facto partition, not only the ownership but also the possession of a property is transferred.
Modes of Partition:
- Oral
- Written but not registered
- Written and registered
- By Decree of Court
Essentials of Partition:
- Formation of Intention – the intention should form in the mind of coparcener that he/she want to claim partition. Intention is most important ingredient to do anything so it should be there. Mere formation of Intention does not constitute partition.
- Declaration of Intention – after Intention was formed, then coparcener have to declare it to the members of family.
- Communication of Intention – Coparcener have to communicate his intention to separate or to claim partition in property clearly to Karta as he is manager of all family affairs. Communication should be done in way that it comes to the knowledge of Karta.
Intention for partition must be
- clear and unambiguous
- Unilateral
- Unequivocal
If a suit was filed by any coparcener in court for partition on 2/3/2007 and the decree was come on 5/6/2011, then it is said to be that partition was done on 2007 as essentials was complete on that date, i.e., Communication of Intention.
Generally, partition was claimed by coparceners but there are three more persons to whom property is provided after partition:
- Topmost Coparcener Wife
- Widowed Grandmother
- Widowed Mother
Daughters Right:
before 2005 amendment, daughters don’t have any right to claim partition because they are not coparceners but they receive property through succession as class 1 heir under section 6 Hindu succession act. But before 1956, property is devolve through survivorship and daughters were not provided anything. After 2005 amendment, daughters are equal coparceners and receives equal share as that of son and also bears same liability as that of son as per section 6 HSA, 1956 (Vineeta Sharma v. Rakesh Sharma and OthersCivil Appeal No. Diary No. 32601 Of 2018).
Hindu Succession Act works neither retrospective nor prospective but it works as Retroactive. If daughters are born before 2005, still they can claim partition irrespective of their date of birth after 2005 amendment, but what if partition is already happened before 2005, then daughters cannot claim. Partition should be after 2005, then daughter can claim as this amendment provide equal rights in property to daughters, that’s why this Act is retroactive.
Everyone single person who is coparcener can claim partition in the joint property even minor. But court have to see the “Best Interest of the Child” when a minor claim partition through next friend in court of law.
Obstructed and Unobstructed heritage:
Apratibandha Daya (unobstructed heritage) property inherit from direct male ancestor but not exceeding three degree who is higher than him. Under the concept heritage is devolved by survivorship. The essential feature of unobstructed heritage, according to Mitakshara Law is that the sons, grandsons and great grandsons acquire an inherit in the property inherited by birth. Their rights attach to it by their birth as in case of Radha v Ram, it was held that the property can be acquired by son and son’s son by the interest of birth. The property is called unobstructed because the accrual of the right to it is not obstructed by the existence of the owner.
Sapratibandha Daya (Obstructed Heritage) property inherited from any other relations i.e. paternal uncle or brother, nephew etc., under this its devolved by inheritance. It is called obstructed because the accrual of the rights to it is obstructed by the existence of the owner. The owner holds it as his separate and absolute property. The relations of the owner do not take a vested interest in it by birth. They are entitled to it only on the death of the owner. Thus the property which devolves on parents, brothers, uncles, nephews, etc. on the death of the last owner is obstructed heritage.
Difference between Joint and Separate property:
| JOINT PROPERTY | SEPARATE PROPERTY |
| Before partition | After Partition( or received by whatever transaction) |
| Common Income | No common income |
| Ancestral property | Self Acquired |
| Upto 4th Generation | No generation required |
| Birth Right in property | No birth Right |
| Unobstructed heritage (Apratibandhdaya) | Obstructed heritage(Sapratibandhdaya) |
Relevant Case Laws:
A. Raghavamma vs A. Chenchamma
facts:
There were 2 brothers B1 and B2, B2 died prior to B1 and B2’s wife is the plaintiff here and B1’s sole son died before B1, leaving his widow and a son.
B1 died in 1945, leaving the minor as sole surviving coparcenor and that child died before reaching the age of majority.
The widow of sole son of B1 is the defendant.
Plaintiff contend that B1 executed a will in his grandchild’s name and she is entitled to get half portion as she was manager of the property.
Defendant contend that as the minor was sole surviving coparcenor, so his portion will get to his mother, that is, defendant and existence of undivided coparcernor, B1 don’t have authority to make a will, and the will was void.
issue:
Whether partition can be done by simply declaring unequivocal desire to leave family without informing other coparcenor?
judgement:
The intention has to be declared and communicate to other coparcenors so that it comes to their knowledge about partition.The law is clear that if a coparcenor wants to separate, he has to declare his intention to others in clear and unambigous words.Severance is a mental state and statement is expression of that mental state and it does not arise from simple proclaimation.
The intention of partition was not communicated to other coparcenor, so it does not result in severance in status.Before the testator dies, neither the minor nor his guardian was aware of the contents of the will, so it does not amount to partition.The property will go by survivorship.
Puttarangamma vs M. S. Ranganna
facts:
Karta (Ranganna) of The family running family business and admitted to hospital he has 4 daughters. He issued a notification through post office for partition.Plaintiff told the post office to withdraw the notification and don’t want to get partition. Then plaintiff filed the complaint in Jan 1951, seeking division of his portion.Plaintiff instituted a suit(plaint) for partition of the property. Trial Court said Thumb impression was affixed when Karta was conscious and sound mind and hence the plaint was valid.High Court reversed the order and said there was evidence showing that communication made to defendant.
issue:
Whether the Ranganna died as separate member of joint family?
Whether the plaint was valid?
judgement:
Joint property can be separate when it was communicate to other family members.There should be clear and unambiguous intention for partition, once the communication is done, then property or family will get separated.There was sufficient evidence to prove that the Karta wanting separation was conscious and not under pressure or any unsoundness of mind.Communication was done and property is separated.
Court upheld the Trial court’s findings and held that plaint was valid.Plaint was submitted when plaintiff was in a sound mind and could grasp the contents of the plaint.Hence, property is separated now.
Kakumanu Pedasubhayya vs Kakumanu Akkamma
facts:
In this case, Defendant were the father and his son from the 1st wife who were continously selling ancestral property and incurring debts without any legal necessity.Family property were sold by defendant and purchasing new ones in the name of adult coparcenor.Minor and other’s didn’t even getting their property or their right violating.Suit was filed on the behalf if minor who died during pendency of the suit by his maternal grandfather as his next friend.
issue:
Whether minor died as undivided member of the family?
Whether the suit abated his death?
judgment:
The partition must be in the “Best interest of the Minor” even if it is filed by his next friend.There is no difference between the rights of minor and major coparcenor.When the suit was filed,it was deemed to be a separate property from that date.The difference between minor and major coparcenor is the interest of the minor on which court have to decide.Minor was considered to be a separate member from the date when the suit was filed.
Court held that minor coparcenor has right in property and suit can be filed by his Guardian as his next friend and he was considered to be a separate member from the date on which suit was filed and at the time of his death.
Present Problem:
Gurupad, a Mitakshara hindu living in Delhi, owns the following properties; (i) a piece of land inherited from his maternal grandfather in 1972. (ii) Jewels worth rs. 10 lakhs inherited from his father in 1990. (iii) A flat purchased out of his earnings made in the course of his legal profession. The formal education in law was acquired with the help of HUF funds. (iv) A house which he got under the will of his father. His son Shivpad sought partition of his father’s properties and demands share in all the above mentioned properties. Decide.
Answer: (i) this property is separate as it receives from maternal grandfather, he cannot claim partition in it, (ii) this property is separate, jewels, so cannot be claim by his son, (iii) this property is also separate, ” gains of learning” , it means that property is earned by yourself in profession through education in which joint property is invested, then that property earned by you is only yours, i.e., separate. (iv) the will property is also separate as it was made only to particular person. So his son cannot claim partition in any property of his father abovementioned.
A mitakshara Hindu, Ram Prakash, owns the following properties in Allahabad: (a) A house which he had got from his father Satya Prakash under a Will in 1955 and is or value worth 5 crore. (b) An apartment worth Rs. One crore which the inherited from his maternal grandfather Durga Dutta in 1980. (c) A plot which he inherited from his father in 1990 and is of value 2 crore.
Answer: All the cases mentioned above denoted all as separate property in which his son cannot claim partition.
Rahul, a Hindu male inherits a plot of lands from his father in 2005 and a year later a house from his maternal grandfather. In 2010, he got a necklace worth rupees 20 lakhs from his mother under a Will. Thereafter in 2015, he purchased an office out of his own earnings made in course of his legal profession, although the education was acquired with the help of joint family funds. Raghav, his son seeks partition in the above mentioned properties. Will he succeed? Discuss.
Answer: In this situation, Raghav son of Rahul cannot claim partition in land inherited as it considered to be a separate property. Necklace got under will, also a separate property. House from maternal grandfather will also be considered as separate property. Purchased office from his own earnings, considered to be a separate (gains of learning).
