An overview of partition and reunion of property under The Hindu Succession Act, 1956.
“Partition is after all only an old fortress of crumbled masonry – held together with the plaster of fiction.”
The Hindu Succession Act, 1956.
This Act lays down the laws that govern succession and inheritance of property among Hindus. It gives us a detailed and uniform structure of succession and inheritance under Hindu law. Thus, this act garners all the characteristics of Hindu succession and gives a comprehensive outlook on succession in Hinduism.
Before the codification of the Hindu law with the enactment of the Hindu Succession Act, 1956, the prehistoric schools of law that governed the Hindu law were believed to be:
The Mitakshara School
This school states that division of property means the severance of joint status. This school believes that partition is not just the division of property into particular shares. The existence of joint property is not essential for partition as this school of thought is under the belief that the mere existence of coparcenary is the only vital subject for partition. Therefore under this school, the joint family status terminates and there is an end to coparcenary. Thus, the only essentiality for a partition under this law, is the specific and unambiguous declaration by a coparcener, with the intention to separate himself from the family which means the member of the joint family discharges himself from being a member of the joint family and cuts off all ties for a complete severance of his status as a member.
The Dayabhaga School
This school believes that when a partition occurs, the division of property should be made in such a manner, that there are specified shares of the coparceners and that such a share cannot circulate in the ancestral property, through the birth and death of the coparcener. Therefore, under this school, the shares are ascertained, specific, and fixed in their ordinary course.
Introduction to Hindu law of succession
The laws of succession under Hindu law are connected to the legal propositions of asset distribution of a deceased individual. These encompass the manner in which one or any person after another or any person in a specific share with any other person inherits the property or estate of the deceased person. The partition can be defined as an act by which the coparcener cuts off his relations with his joint family and thereby loses his status of a coparcener to the property of the joint family and ultimately, becomes an individual with disassociation towards the joint family.
A very essential repercussion of such a partition is that the share of the coparcener/coparceners that intend on seeking such partition remains ambiguous, fluctuating, and unforeseeable until such a partition becomes definite and accurate, once the partition comes into existence, which is thereby separated into the respective family members.
The division of the property under Hindu law is called partition. Partition merely means the division of property of a Joint Hindu Family, which results in the conferment of separate status among the undivided coparceners. A very appurtenant ingredient for partition under Hindu law is the existence of more than one coparcener in the joint family.
A coparcener can be defined as an individual who inherits the property as a co-heir with others in the joint family. A coparcener is an extremely necessary part of the joint family property, and without its existence, there cannot be any partition.
Therefore, under Hindu law, every coparcener is entitled to an equal share of the property of the Joint Hindu family and each of them is given some amount of integral power to inherit a part of the property. Once the partition among the Hindu Joint family takes place, it leads to the finality of the joint status of the family.
A very important ingredient to be noted is that the subject of partition of property can only occur on property or estate which is the joint property of the family as a whole. Separate or personal property cannot be an issue in question for partition among the coparceners. In the case of Mrtunjay Mohapatra v. Prana Krushna Mohapatra, the court held that if the elder brother bought the property with his personal finances and funded himself for that particular property, then such a property cannot be included in the joint family estate, for the younger brother.
It was also noted in the case of Prafulla Kumar Mohapatra v. Joy Kanta Krushna Mohapatra that when there is no substantial evidence that the father is a claimant on the property, the property will legally continue to belong to the paternal uncle and will be regarded as separate property.
In the case of Srinivas Krishnarao Kango v. Narayan Devji Kango, the court held that “The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property”.
A partition is to be made without breaking the inherits value of the entire joint property and thus, under the ordinary and peaceful course of partition, such division of property becomes mandatory. However, if a partition leads to the devastation of the value of the estate, then under such instance, a monetary compensation equivalent to the share in the property should be given to each coparcener instead of the share.
The subject matter of Partition
All kinds of immovable and movable properties are eligible for distribution among the coparceners of the joint family and thus, each member must be given his share in all immovable and moveable properties. The court has elucidated in many cases there is no particular rule when it comes to the share of immovable property and there might be a possibility that some coparceners might not get any share in the immovable property. This is dependant on the type and number of immovable properties and the coparceners who are entitled to such a share in the property.
In a situation, where properties of greater value are allotted to one coparcener while of lesser value is given to another, the coparcener who gets the bigger valued property may provide money to the one who gets the share of the lesser value. This equal distribution is necessary so that every coparcener can benefit unequivocally. Any property in possession held under a permeant lease is also to be divided among the coparceners. Properties that cannot be divided or parted among the members include the staircase of the house, cooked food, utensils, garden, etc as they are unbreakable in nature. Properties like the possession of idols, temples,s or shrines may be given to the oldest coparcener or a younger coparcener if he is more spiritual or as it may suit the coparceners- free access to all the other coparceners with the intention of worship at all reasonable times. The coparceners may hold them turn wise for a period in proportion to their share in the property.
Therefore, things that are divisible in nature, can be enjoyed among the coparceners jointly or in turns, or the value may be divided by one of the coparceners who keeps the property or such a property may be sold and the value of may be distributed among the coparceners.
Types of partition:
De Jure partition
In the case of an undivided coparcenary, the existing coparceners jointly share the property, and unless the partition takes place, the coparceners are unaware of the exact amount of share they possess in the property. With the implementation of the doctrine of survivorship, the interests of the coparceners alter due to the deaths and births of the other coparceners. However, in the De Jure partition, the community of interest breaks down or is divided which leads to a fixed share for each coparcener.
De Facto partition
Despite the severance of the joint status of the family, unity of possession of property continues to be enjoyed by the coparceners. Although the number of shares in the property is ambiguous, the coparceners have no right to claim a share in the property. Therefore, the downfall of this unity of possession by actual physical division of the property and its replacement by exclusive possession is known as De Facto possession or partition by metes and bounds.
Essentials of a Valid Partition
A coparcener deserves a right to demand partition of the property at any time, without the consent of the other coparceners. However, the following ingredients are necessary for the demand of partition to occur:
- A clear and unilateral intention to separate from the joint family.
- Such an intention must be conveyed to the Karta (manager of the joint family) or the other coparcener in his absence.
Modes of Partition
Partition by father
The father, under the Hindu law, has greater powers in contrast to the other coparceners due to which, with such conferred rights i.e. ‘Patria porestas’, he can detach himself from the joint family. He can also divide every son, as well as minors that could affect the partition.
Partition by agreement
In a situation where all the coparceners jointly decide to dissolve the joint status, it is called partition by agreement. The court cannot acknowledge a partition unless a mutually approved agreement exists between the parties. As a matter of further fact, such a partition can also be a personal and internally agreed settlement among the family members in order to avoid any unnecessary legal proceedings and to keep up with the dignity of the family. However, it is important to understand that coparceners by mutual agreement should come to terms with an agreement that there would be no consequences on the partition until the occurrence of a certain event, particular time period or till the life of a specific coparcener.
Partition by suit
Another interesting way for a coparcener to detach himself from the joint family property is by filing a suit in court. Once the plaintiff files for a suit and indicates his indubitable intention to separate, his status in the joint family comes to an end. The decision of the court decides the manner in which the respective shares of the coparceners are to be divided. However, severance of status comes into effect from the date of filing a suit for partition in the court. The law allows both a minor and major coparcener to approach the court on this basis.
In Phoolchand v. Gopal Lal, the Court held: “ It is not disputed that in a partition suit the court has jurisdiction to amend the shares suitably even if the preliminary decree has been passed if some member of the family to whom an allotment was made in the preliminary decree dies thereafter: …there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented.”
In another case of Jingulaiah Subramanyam Naidu v Jinguliah Venkatesulu Naidu, a partition was attempted in the name of the wife of the respondent with a claim that they are joint properties and there was no titleholder as the party. The court held that “when the partition is sought of a party, it is a mandatory condition to make titleholder as a necessary party.”
Partition by conversion
Conversion to any other religion from Hinduism leads to severance of the status of the coparcener who is associated with the joint family. However, this partition would only affect the member who converts and not the other coparceners.
Partition by arbitration
An arbitrator is appointed in such an agreement which is mutually and jointly decided upon by the coparceners of the joint family.
Partition by Notice
Once there is an intention to separate from the other coparceners, a partition may become effectual by notice to the other coparceners, even if there is no suit.
Right to Demand partition
Every coparcener of the Hindu Joint Family has a right to demand partition of the property except an unqualified coparcener and a son, who is attached with the father cannot demand partition.
The following people can claim property and are eligible to demand a share in the property:
- Father: A Hindu father has a right to partition the property between himself and his sons. Even if there is explicit disapproval of his sons, he can’t exercise this right. However, the father can divide the property only during his lifetime and not by will, after his death. The allotment of the property must be equitable, fair, and just amongst all the sons.
- Son, grandson, and great-grandson: Coparcenars who are major in age and of sound mind are qualified to demand partition regardless of whether they are sons, grandsons, or great-grandsons. A comprehensible and clear demand for partition made by any coparcener irrespective of any reasons compels the Karta to comply with his demand. In the case of CWT v. Chander Sen, the Court held that the: “It is clear that under the Hindu law, the moment a son is born, he gets a share in the father’s property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth.”
- Daughter: Under the Hindu Succession (Amendment) Act, 2005, it has been stated that a daughter is also a coparcener under Hindu law and has the same rights as any other son or coparcener would have. In the case of Pachi Krishnamma v. Kumaran, the court her that the daughter can claim an equal share as the son in a partition of the property. However, the daughter was unsuccessful in proving that the customs she follows allow an equal share for the daughter. But after the amendment in 2005, things changed and the daughter was given an equitable share which was just and unbiased. In another case of Nayanaben Firozkhan Pathan v. Patel Shantaben Bhikhabhai & ors, the Gujarat High Court held that a Hindu daughter does not lose her entitlement to inherit the property under The Hindu Succession Act even if she marries a Muslim man. It was further observed that: “Prima facie, I am of the view that for the purpose of getting her name entered in the record of rights, all that was necessary to be indicated was that the applicant is one of the Class-I legal heirs. It was not necessary for her to declare that she is married to a Muslim and she has embraced Islam by renouncing her Hindu religion. Once the question of law is answered in favor of the applicant, I do not see any good reason to lay much emphasis on the issue of an affidavit filed by the applicant.”
- Son in the womb: If at the time of partition, a son is in the womb, then such a son is also eligible for a share of property even though he was not born yet.
- Minor coparcener: In the case of a partition that involves a minor coparcener, he has equal rights to demand a partition identical to a major coparcener. However, the suit for partition must be filed by a guardian or a next friend on behalf of the minor. It is under the court’s discretion to pass a decree in favor of the minor if it feels that such a partition benefits the minor. In the case of Kakumanu Pedasubhayya & Anr v. Kakumanu Akkamma & anr, it has been specifically held that a minor can sue for partition and obtain a decree if his next friend can show that it is for the minor’s benefit and that there is no distinction between a minor and major coparcener.
- Adopted son: There has been injustice between a natural son and an adopted son on the issue of property partition. However, this discrimination was eradicated by the Hindu Adoption and Maintenance Act, 1956. Thus, an adopted son is eligible for the equitable share and can demand partition just as a natural son would do so.
- Son born of a void or voidable marriage: A child born out of a void or voidable marriage is a legitimate child of their parents and hence, is permitted to acquire seepage property however, he cannot bequeath property from the relatives of his parents.
Reunion of a Partition
Under Hindu law, when a particular thing is parted with, it also gives ways in which this separation can be amended or repaired. This is where the reopening of a partition takes place. In certain situations and exceptions, reopening of partition is allowed under the law and therefore an application can be made for the same purpose.
Exceptions where reopening of partition is permitted:
- Fraudulent partition: If one of the coparceners has unjustly acquired an advantage in the partition of the property through dishonesty and illegal means.
- Existence of adopted son/s: Under section 12 of the Hindu Adoption and Maintenance Act, 1956, adopted sons have a right to be coparceners of the property that is to be partitioned.
- Person in the womb: A son that is conceived during the time of partition and comes into existence after, can claim right on the property.
- Coparcenar disqualified: If a coparcener becomes ineligible for the share during the partition due to certain practical disqualification reasons, then in such a case, he can reopen the partition after the disqualification comes to an end.
- Absence of coparcener: When the coparcener is absent during the time of the partition, and there is no share allocated under his name, then the aggrieved coparcener can reopen the partition.
- Coparcenar in minority: A minor coparcener can reopen partition if his share is not accounted for.
- Mistake: If a property is deliberately or mistakenly left out, is lost or taken away at the time of the partition, the partition can be reopened if such properties are found out about or come to coparceners notice.
In order to constitute a reunion, there must be the intention of the parties which conveys their interest to reunite. By showing an intention to reunite there is an agreement between the parties to reunite in the Joint family. Such an agreement need not necessarily be expressed and it can be implied also. Moreover, the Burden of proof of reunion will be on the person who is willing to assert it. The members tend to come back together if at all they can maintain the severance but can also dwell together or trade together. This coming together is totally different from a formal reunion.
What is a Reunion?
It is a course of action in which there is a reinstatement of the joint status of the Hindu joint family after the partition has come into existence. Therefore, reunion can be defined as a process by which a family that was once joint and subsequently partitioned, chooses again to retrieve the status as a joint family. Under Hindu law, Reunion is viable even after an absolute partition of the Hindu joint family.
In the case of Bhagwan Dayal v. Reoti Devi, the supreme court held that, “if there is a separation of a Joint Hindu Family, then the family or any of its members can agree to reunite as Joint Hindu Family, although the reunification can only take place for general reasons which would apply in most general cases under the Mitakshara School of Hindu Law.” The court further denoted a perspicuity judgment that, “for the unification/reunion there must be parties that have an interest in the estate and that there was an agreement between the parties who were initially a part of the partition, stating their intention and desires to reunite the estate as a Joint Hindu Family estate. Furthermore, the said agreement, which has to be proved in the eyes of the law, does not need to be an expressed or formal agreement. The said agreement may be an oral or implied agreement, whereby the parties involved have provided their consent to the reunification of the estate.”
In the leading case of Bhagwan Dayal v. Mst. Reoti Devi, it was seen that for a reunion to take place, an express or implied agreement should exist between the parties that intend to reunite in the estate. The Supreme Court held, “that there was not sufficient evidence to show that the uncle and nephews consciously entered into an agreement to re-unite and become members of a joint Hindu family.”
Important conditions required for the parties to reunite:
- The must be a partition that has already taken place otherwise a reunion cannot arise if there is no partition in existence.
- The must be an intention between the parties to reunite the joint family property.
- The must be approval from each and every coparcener to process a reunion. However, such a reunion need not be a formal agreement. A simple oral implied, or written agreement to reunite is sufficient.
- The reunion can only take place between the original parties who were already a part of the partition in the past.
- Only a competent coparcener is eligible to reunite and enter into a valid agreement.
- There is no requirement that the same property must be existence as it was earlier during the partition, hence a reunion can take place without such a property.
In the case of Commissioner of Income Tax v. Vaijyapuri Chettiar and Anr, the prerequisites of a valid reunion were laid down, it was held that “the primary requisite for the administration of reunion is the consent of the parties/coparceners with the intention to reunite as a joint Hindu family and share a common interest in the estate. The consent of the coparceners being unilateral, which means that all the coparceners give their consent to the reunion although such consent need not be in the form of a formal agreement, rather it can be an oral agreement or even implied consent may suffice but such implied consent must be easily provable in the court of law.”
Effects of Reunion
As soon as the reunion is effectual and valid, the status of the divided members is restored to the original status as coparceners of the Hindu Joint family. However, the personal or individual property of the reunited coparceners does not pass down by the doctrine of survivorship but rather is passed down to the heirs of that coparcener by the law of succession.
Difference between Reopening and Reunion of Partition
Reopening is the process or step which is undertaken with an intention to reunite, however reopening does not always lead to the reunion as a joint family. The main motive behind a reopening is to remedy a situation where a coparcener was denied his specific rights to share or there was the unjust partition of the property or the coparceners simply intend to coexist together as a joint family in the past. On the other hand, the main reason for a reunion is not to correct a faulty partition or fraud that could’ve taken place, but it is to restore the members as a joint family and revert the partition. Thus, it could be noted that reopening has a broader scope with respect to its implementation whereas reunion has unilateral use.
The process of partition under Hindu law is rigid and has narrow scope in nature. The Hindu Succession Act has laid down very specific laws and guidelines that need to be followed while parting or reuniting as a joint family, due to which such processes become extremely strenuous to follow and cause uncertainty and unsureness when the family is met with unanticipated circumstances. Disparity with respect to the filing of a suit of a partition and the consequences of an oral partition lead to materialistic complexities while initiating a partition. The laws pertaining to partition never identified a female member of the family as a coparcener to the property due to which there have been numerous cases where the rights of the female members have been taken for granted the and the act itself has been oblivious to such an important affair.
In the case of Danamma v. Amar, the Supreme Court held that, “the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son would be prospective in operation and that they would have same rights in the coparcenary as she would have if she had been a son and they would be subject to the same liabilities in respect of the said coparcenary property as that of a son.” Although the suit for partition was filed in 2005, the court stated that during the pendency of the suit, The Hindu Succession (Amendment) Act, 2005 was enacted, and thus a decree is to pass with respect to the amendment.
As one can see, a partition is a process by which the status of the joint family is severed and there is a division of the property However, the down point to this law in force is the fact that for any person belonging to a Hindu joint family, he cannot ask for his share in the property without severing his status as a member of the family. The succession laws ought to be more successful so that a member of the family can have his separate share but also enjoy his status as a member of the joint family. These strict laws have made it difficult for the members to part with the property as they lose all rights. With the changing times, there needs to be a change in stagnant laws so that all those who are affected by such legislation also optimistically benefit from them.
In the case of Vineeta Sharma v Rakesh Sharma, it was held that, “a daughter is a coparcener by birth and that whether the father had died prior to or was alive on the date of the amendment was not relevant.” Such landmark judgments have allowed the judiciary to make just decisions and allows the prevalence of equality in today’s time.
From the above article, it is clear what is a partition in a Joint Hindu Family and what are the essentials that lead to partition. With respect to the reunion, it can be seen as an instrument to reverse the status of a Joint Hindu Family as a whole and allows for the unification of the family. Although there are downfalls to the laws of succession, these laws have helped to reunite families and also aided in dividing the properties in a peaceful manner which would’ve been cluttered if these laws were not laid down upon. Partition helps to main stability among family members and reunion has helped families to not only come together as one legally but also emotionally allowed the members to reconcile their personal differences.
What does the Hindu Succession Act lay down with reference to the partition of property?
This Act lays down the laws that govern succession and inheritance of property among Hindus. It gives us a detailed and uniform structure of succession and inheritance under the Hindu law and how the family property is divided (partition) among its coparceners.
Who qualifies as a coparcener under The Hindu Succession Act,1956?
A coparcener can be defined as an individual who inherits the property as a cohere with others in the joint family. Every coparcener is entitled to an equal share of the property of the Joint Hindu family.
What type of property can be partitioned under this Act?
Partition of property can only occur on property or estate which is the joint property of the family as a whole. All kinds of immovable and movable properties are eligible for distribution among the coparceners
Who has the right to demand partition?
Every coparcener of the Hindu Joint Family has a right to demand partition of the property except an unqualified coparcener and a son, who is attached with the father cannot demand partition.
What is a reunion and its effects on the Hindu Joint Family?
Reunion is a course of action in which there is the reinstatement of the joint status of the Hindu joint family after the partition has come into existence. As soon as it is effectual and valid, the status of the divided members is restored to the original status as coparceners.
What is the most important condition for the parties to reunite?
The must be a partition that has already taken place otherwise a reunion cannot arise if there is no partition in existence.
To what extent is the legal scope of partition effectual?
Partition under Hindu law is rigid and has narrow scope in nature. The Hindu Succession Act has laid down very specific laws that need to be followed while parting or reuniting due to which such laws become extremely strenuous to follow.
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 DIARY NO.32601 OF 2018