DRAFTING OF A PARTITION DEED UNDER

MITAKSHARA LAW

Submitted to: Prof. Mallikarjun Gade

(Professor for Family Law)
Submitted by: Neha Shivhare
II Year, III Semester
2014-5LLB-31

Contents
CHAPTER I INTRODUCTION..................................................................................................................4
RESEARCH OBJECTIVE......................................................................................................................5
RESEARCH METHODOLOGY.............................................................................................................5
CHAPTER II PARTITION..........................................................................................................................6
Subject matter of partition.......................................................................................................................6
Who can ask for partition?.......................................................................................................................7
Mode of partition.....................................................................................................................................8
How is the partition by an agreement effected?...................................................................................8
REOPENING OF PARTITION...............................................................................................................9
Can partition be reopened by a son born subsequent to partition........................................................9
CHAPTER III FACTUAL MATRIX.........................................................................................................10
FAMILY TREE......................................................................................................................................11
CHAPTER IV PARTITION DEED...........................................................................................................12
IS REGISTRATION OF PARTITION DEED COMPULSORY?..........................................................15

TABLE OF CASES
Jagannath v Lokanath

Approvier v Rama

Vishwanath v Ganesh Vithal

Ganapathi Nanak v Sri Devenath

Suresh v Parvathi

V. Krishnan v G. Rajan

TS Srinivasan v Commissioner of Income Tax

Chaya Gupta v District Registrar

15

Nani Bai v Geeta Bai

15

Panchapagesa v Kalyansundaram

15

TABLE OF STATUTES
Hindu Partition Act, 1956
Registration Act, 1908
TABLE OF ABBREVIATIONS
AIR

All India Reporter

ed.

Edition

Ibid.

Ibidum

pp.

Page

Versus

CHAPTER I
INTRODUCTION
The concept of joint family has unique significance among Hindus. Joint family consists of a
common ancestor, his lineal male descendants, their wives and unmarried daughters. There is a
presumption in Hindu jurisprudence that every Hindu family is joint unless contrary is proved
either by way of partition or extinction of all the members. 1 The concept of joint family under
Mitakshara School differs from that of the Dayabhaga School. A Hindu joint family is managed
and represented by its karta. Coparcenary is a small unit within a joint family which consists of
coparceners within three generations from the common ancestor.2 The concept of Coparcenary is
based on the existence of certain rights and duties. A coparcener is obligated to perform certain
indispensable pious duties towards his ancestors. Also, a coparcener gets an interest in the joint
family property by birth. However this interest in the joint family property is unpredictable and
fluctuating in nature. The share becomes fixed only on the partition of the joint family property.3
Other rights of coparceners include right of maintenance, right to joint possession, right of
ownership, right to challenge alienation made by the karta etc. Coparceners also have a right to
ask for partition.
There exist various modes of which can be adopted by a family to allot the specific shares to the
coparceners. Partition by agreement is one such mode where parties mutually agree for partition.
A mutual agreement between the coparceners to hold and enjoy their specific shares is
indispensable for this mode of partition. The agreement should clearly be indicative of parties
intention to partition. The severance of status takes place from the date when the parties sign the
agreement.
The researcher has attempted to draft a partition deed by agreement based on hypothetical fact
situation and fictional names.
1 Jagannath v Lokanath, AIR 1981 Ori 52
2 MAYNE, Treatise on Hindu Law and usage 706, (12 th ed. 2008)
3 Ibid.
4

RESEARCH OBJECTIVE
Through this exercise, the researcher has tried to understand the basic skills for drafting a
partition deed by mutual agreement between the parties. The researcher has also dealt with
reopening of partition in case the provision for share of the unborn child (who was in the womb
at the time of partition) was not made. The researcher with the help of relevant case laws and
treatises has addressed the issue whether registration of the partition deed is necessary?
RESEARCH METHODOLOGY
The research has been done with the help of codified and uncodified laws governing the concept
of Hindu Joint family and the Law of partition. The researcher has also dealt with relevant case
laws pertaining to the subject.

CHAPTER II
PARTITION
Partition means bringing the joint status of the family to an end. Under Mitakshara School,
partition means:

Severance of status, and

Actual division of joint family property by metes and bounds.

Subject matter of partition

Since partition means severance of joint family status, the subject matter of division is only the
joint family property and not the separate property of the coparceners. 4 But there are certain
properties which are not the subject matter of the partition as they are incapable of division.
These properties include:

Dwelling house
Family shrines and idols
Staircases, right of way, wells etc.5

These properties can either be enjoyed by the coparceners, jointly or in turns. Some of these
properties may be allotted to the share of one coparcener and its value adjusted with the other
property allotted to other coparceners; and these can also be sold with sale proceeds being
divided among the coparceners according to their respective shares.6
Deductions and provisions
Before partition, certain deductions and provisions are made from the joint family property. They
are:
1. Debts7

4 Paras Diwan, FAMILY LAW , 9th ed 2007, Allahabad Law Agency, pp. 430
5 Paras Diwan, FAMILY LAW , 9th ed 2007, Allahabad Law Agency, pp 431
6 Ibid.
6

Debts for the joint family and outstanding debts of the father are to be taken into
consideration before partition.
2. Maintenance8
Certain members of the joint family have right to be maintained out of the joint family
property. These members include disqualified coparceners and their immediate dependents,
mother, grandmother, stepmother, widowed daughters and illegitimate children of
coparceners etc. A provision is to be made for their maintenance.
3. Marriage9
A provision is also made for the marriage expenses of daughters when the coparcenary
consists of father and sons and for the marriage expenses of sisters when the coparcenary
consists of brothers.
4. Performance of ceremonies10
A provision is also to be made for the performance of necessary ceremonies like funerals.
Who can ask for partition?
1. Father: The father can also impose a partition among his sons
2. Son, grandson and great grandson:
3. Son conceived at the time of partition but born after the partition: If the pregnancy was
known to the coparceners at the time of partition, the partition can either be postponed or a
share equal to share of the son should be kept aside for the unborn child. In case no share was
kept aside for the son in the womb, he has the right to ask for reopening of the partition.11
4. Adopted son
5. Daughter of the coparcener
After the 2005 amendment to the Hindu Succession Act, 1956, a daughter has also been
made a coparcener by virtue of section 6 of the said Act. Therefore a daughter is also entitled
to ask for the partition.

7 Paras Diwan, FAMILY LAW , 9th ed 2007, Allahabad Law Agency, pp 433
8 Ibid.
9 Ibid.
10 Ibid.
11 MAYNE, Treatise on Hindu Law and usage 900, (12 th ed. 2008)
7

There are certain members of the joint family who cannot ask for the partition but they are
entitled to a share on partition. These members include:
1. Fathers wife
If the partition takes place between her husband and the son, she is entitled to a share equal to
that of her son
2. Mother
A widowed mother has a right to take a share equal to the share of a son if a partition takes
place among the sons
3. Grandmother
When partition takes place between her grandsons (sons sons), she is entitled to a share
equal to the share of a grandson, provided her son is predeceased.
4. Coparceners widow
A coparcener's widow is entitled to the share her husband would have received on partition.
Mode of partition
There are several modes of partition including partition by suit, oral partition, partition by
conduct, partition by arbitration and partition by agreement. The researcher has dealt with
partition by agreement.
How is the partition by an agreement effected?
All the coparceners are entitled to effect partition among themselves by an agreement. The
coparceners by signing an agreement can separate themselves from the joint family. 12 A valid
partition can also be brought by a minor coparcener or an absent coparcener if he/she is
represented by a legal guardian.13 In Approvier v. Rama,14 the court held that the members of the
joint family can agree among themselves to have defined shares in the ownership of either a
specific property or the whole joint family property. After such agreement, every coparcener has
definite and exclusive right over the property allotted to him with respect to ownership and
possession.15 A severance of joint family status occurs as a result of such agreement. The
12 MAYNE, Treatise on Hindu Law and usage 927, (12 th ed. 2008)
13 Ibid.
14 Approvier v Rama, (1886) 11 MIA 75
15 Supra note 12
8

agreement will have the effect of separation in interest and in right, although not immediately
followed by the de facto division of the subject matter of the agreement.
REOPENING OF PARTITION
Reopening of partition is also recognized under the Hindu Law. Manu said If after all the debts
and assets are duly distributed according to the rule, any property discovered subsequent should
also be divided equally.16 In Moro Vishwanath v Ganesh Vithal,17 it was held that once made,
partition is final and it can only be opened in case of any fraud or mistake or subsequent recovery
of any joint family property. If there is a prima facie evidence to prove that the partition is
detrimental to the interest of the minor, it could be reopened.18
Can partition be reopened by a son born subsequent to partition?
Such right to get the partition reopened is limited to a son who was in the mothers womb at the
time of partition.19 Such son though born subsequent to partition is entitled to reopen the partition
and he will receive a share equal to his brothers. A son conceived and born after the partition
cannot ask for the reopening of partition. Under the notions of Hindu law, even a child in the
womb acquires a right to claim partition.20 The after born son is given the share which he would
have got if he had been in existence at the time of partition. This is based on the principle of En
ventre sa mere. If the pregnancy is known at the time of partition, either the partition can be
postponed to the birth of the son or his share can be kept aside. In case the pregnancy was not
known at the time of the partition, the redistribution of the estate must take place after the birth.21

16 MAYNE, Treatise on Hindu Law and usage 944, (12 th ed. 2008)
17 Vishwanath v Ganesh Vithal, (1873) 10 Bom HCR 444L
18 Ganapathi Nanak v Sri Devenath, 1999 (1) HLR 497 (Karn)
19 Smiritichandrika (Chapter XIII, 1-11)
20 Suresh v Parvathi, 2005 (1) HLR 645 (Karn)
21 V. Krishnan v G. Rajan, (1994) 1 MLW (Cri) 16
9

Salmond in his jurisprudence says There is nothing in law which prevents a human being from
ownership rights before his/her birth however the ownership is necessarily contingent on his/her
actual birth but it is nonetheless a real and present ownership. A child in its mother's womb is for
many purposes regarded by a legal fiction is already born in accordance with the maxim
naciturus pro jam natro habetur.22

CHAPTER III
FACTUAL MATRIX
Mr. Ramesh Gupta is the karta of the Hindu Joint family following Mitakshara School. Ramesh
is a chartered Accountant who works in AYMC Firm in Delhi. He resides in Delhi along with his
wife, Mrs. Pooja Gupta whom he married in 1962. They live in a house which was built by their
ancestors in 1910. The couple was blessed with two sons Mohan and Aman, and one daughter
Reema. Mohan is a lawyer who works in Trilegal Law firm in Bangalore. He fell in love with
one Priyanka who is also a corporate lawyer working in a well-known firm based in Bangalore.
Both of them got married in 1988 according to all hindu rituals and ceremonies. Mohan and
Priyanka live in Bangalore with their two sons Gaurav and Chetan who were born in 1995 and
2000 respectively. Reema also got married to one Avinash. Both of them live in Delhi with their
parents. Aman is a software manager in a reputed Company named SOFTCOM based in
Mumbai. He married Riya in 1985 who is a professor in Global Girls College.
Around January 2007, Rameshs health started to deteriorate. He had to undergo two heart
surgeries within a period of a year. As a consequence of persistent illness, he died in September,
2007. Since all the family members were settled at different places they decided to effect a
partition of joint family property on 15th September, 2007 to ascertain their respective shares.
Subsequent to partition, Aman and Riya were blessed with a son, Abhishek on 2 nd June, 2008.
22 TS Srinivasan v Commissioner of Income Tax. AIR 1966 SC 984
10

Riyas pregnancy was not known to anyone at the time of partition however Abhishek was born
within 280 days of the said partition. No provision was made for his share in the joint family
property. Thereafter Dharam, Abhisheks maternal grandfather filed a suit for reopening of
partition acting as Abhisheks next friend.
The son was born on 2nd June 2008 and therefore he should be deemed to have been in existence
as he is born within 280 days of the actual partition. Under Hindu Law, the membership in a
coparcenary in a joint family comes into existence from the date of conception by the mother.
The new partition deed after the court order to redistribute the share is discussed in the next
section. After the suit, the parties decided to effect the new partition by mode of an agreement.

FAMILY TREE
Ramesh(Deceased)

Mohan

Priyanka

Pooja

Aman

Riya

Abhishek

Gaurav

Chetan

11

Reema

* Abhishek was born subsequent to the initial partition.

CHAPTER IV
PARTITION DEED

THIS PARTIAL PARTITION is made at Delhi on the 4th day of September of the year 2015
BETWEEN
Mr. Mohan Gupta , his sons Gaurav Gupta and Chetan Gupta, Mr. Aman Gupta and his son
Abhishek Gupta and, Mrs. Reema
All three collectively referred as parties. The expression is inclusive of their legal heirs and other
legal claimants.
WHEREAS the parties hereto are members and coparceners of their joint Hindu Family,
governed by the Mitakshara School of Hindu Law. The parties by mutual consent intend to
divide the immovable and movable properties particularly described in the First Schedule
hereunder written and each of the party hereto is entitled to the following share.
PROPERTY
VALUATION (In moneys worth)
Agricultural land in Delhi (50 Acres)
30,000 per acre
Gold ornaments
1.5 crores
Three cars
20 lakhs each
3 BHK Flat in Delhi
1 crore
Balance in family bank account
90 lakhs
FIRST SCHEDULE: The following coparcenary property, both movable and immovable is
subject of partition
12

WHEREAS the parties have effected the partition of the said properties by an agreement on the
aforementioned date, they have clearly and unequivocally expressed their intention as to the
severance of joint family status and the division of the said properties by metes and bounds. The
members and coparceners of the Joint family have also separated in food, worship and estate.
The family also has certain liabilities which it needs to discharge before allotting the shares to
the members. These liabilities are described in the Second Schedule
LIABILITIES
Debt taken for daughters marriage
Debt taken for Aman education
Net Income Tax payable
Property tax
Vehicle insurance
Registration of the deed and

VALUATION (In monetary terms)

20 lakhs
15 lakhs
5 lakhs
2 lakhs
50,000
other 30,000

miscellaneous charges.

The surplus value for partition adds upto 12,20,72,000 after deducting all the liabilities
described above.
The allocation of property shall first happen according to the doctrine of per stripes and
therefore, Mrs. Pooja Gupta (first party), Mr. Mohan Gupta (second party), Mr. Aman Gupta
(third party) and Mrs. Reema (fourth party) will each get 1/4 th share in the coparcenary property.
Mr. Mohan Gupta and Mr. Aman Gupta will get 1/4 th share as the share of their branch. Next, the
allocation shall happen according to the doctrine of per capita. Therefore, Mrs. Priyanka Gupta
( fifth party), Mr. Chetan Gupta (sixth party), Mr. Gaurav Gupta (seventh party) will each get
1/16th share in the coparcenary property and Mrs. Riya (eighth party) and Mr. Abhishek (ninth
party) will get 1/12th share in the coparcenary property. Mrs. Pooja, Mrs. Priyanka and Mrs. Riya
will get their respective hares by virtue of being the mothers of the coparceners.
AND WHEREAS the parties agreed to give dwelling House to their mother, Mrs. Pooja Gupta
and the three cars were sold and the sale proceeds were distributed among the said parties

13

equally. The parties agreed to use the Family temple in turns for the necessary ceremonies and
idol worships.
AND WHEREAS on the aforementioned basis, the parties herein have partitioned the said
properties in the manner indicated above.
AND WHEREAS the parties hereby record the said partition and the said agreement is binding
on the parties.
NOW THE DEED WITNESSES as follow:
1. Pursuant to the said agreement the parties hereby admit the partition of the property
described in Schedule which is distributed among the parties according to their respective
shares. The parties hereby agree and declare that all they shall here in forth be the separate
owners of the properties mentioned in the schedules. Each of them shall hold and enjoy their
properties to the exclusion of others. The parties are discharged from all claims and demand
of the others thereto or concerning therewith.
2. It is agreed between the parties as follows:
i. Each party covenants with the other that he has not done any act or deed whereby or by
means whereof he is prevented from conveying and releasing property to the other in the
aforesaid manner
ii. Each party also covenants with the every other that each party will execute and get
registered, if necessary, any deed, assurance or other document which may be required for
perfectly and effectually assuring the property allotted to the other but at the cost and
expenses of the other.
iii. The original of the Deed of partition will remain in the custody of Mr. Mohan Gupta and the
duplicate copies will remain in the custody of Mr. Aman Gupta and Mrs. Reema.
iv. And it is further agreed and declared that the partition deeds relating to the properties which
are common to the parties shall remain with Mr. Aman Gupta who undertakes to produce the
same whenever required by any other parties.
IN WITNESS WHEREOF the parties herein have signed deed day month on 4 th day of
September, 2015. The following partition deed is duly stamped and registered under Section
17 of the Registration Act, 1908.
SIGNED AND DELIVERED by the parties.
In the presence of witnesses
Mr. Ram Kumar
Mr. Sunil Sharma
14

IS REGISTRATION OF PARTITION DEED COMPULSORY?

A partition does not in itself have the effect of transferring the property. It is interpreted as a
settlement between the members of the joint family. It cannot be held to be a transfer or
disposition in strict sense.23 It was held in Nani Bai v Gita Bai,24 that an agreement to divide does
not require registration but if the agreement itself effects a division, it must be registered. 25
However the unregistered partition deed though can be used as an evidence of partition. It can be
referred under Section 49 of the Registration Act to show that the parties dealt with the properties
as a result of pre-existent partition.26
In the present case, it could be seen form that the partition deed prima facie declares the intention
of the parties to hold the joint family property as separate owners. Also, the recitals of the deed
have the effect of dividing the property by actual measurement therefore the registration of such
deed is necessary under Section 17 of the Registration Act, 1908.

23 Chaya Gupta v District Registrar, AIR 2004 Mad 94

24 Nani Bai v Geeta Bai, AIR 1958 SC 706
25 Ibid.
26 Panchapagesa v Kalyansundaram, AIR 1957 Mad 472
15