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CHANAKYA NATIONAL LAW

UNIVERSITY
PATNA
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PROJECT OF FAMILY LAW

TOPIC

Submitted to :- Dr. Ravi Ranjan

(Faculty of Family law)

Submitted by :-Divyesh Kumar, B.B.A.L.L.B.(H), R.No.

1211, Sem. IV
Batch--2014-2019

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ACKNOWLEDGEMENT
The project work is one of the most important part of the curriculum. It is one of the
most significant challenge. Though this project has been presented by me but there are
many people who remained in veil, who gave their all support and helped me to
complete this project.
First of all I am very grateful to my subject teacher Dr. Ravi Ranjan without the kind
support of whom and help the completion of the project was a herculean task for me.
He donated his valuable time from his busy schedule to help me to complete this
project and suggested me from where and how to collect data.
I am very thankful to the librarian who provided me several books on this topic which
proved beneficial in completing this project.
I acknowledge my friends who gave their valuable and meticulous advice which was
very useful and could not be ignored in writing the project.
Last but not the least, I am very much thankful to my parents and family, who always
stand aside me and helped me a lot in accessing all sorts of resources.

I thank all of them !

Divyesh Kumar
R.No. 1211, Sem IV
B.B.A.L.L.B. (H)

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TABLE OF CONTENT
Acknowledgement
Research Methodology.
Hypothesis

Introduction to Partition...
Types of Partition..
Requisites before Partition ..
Manner of effecting a Partition..
Conclusion & Suggestion

Bibliography

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RESEARCH METHODOLGY
The research methodology used in this project is the Doctrinal Method. For arriving
at the conclusion in this research paper, the researcher has relied upon the various
types of books and also took the help of the knowledge from internet. The researcher
so used both primary and secondary source of data to conclude this project work

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HYPOTHESIS
The hypothesis made by the researcher in this project is that the partition requires
certain formalities or partition have certain requisites to be followed before performing
it. Partition can be done in more than one way so it is of more than one type and there
are ways which need to be accorded with during partition so that it can be effected
efficiently.

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INTRODUCTION TO PARTITION
The literal meaning of the word partition is a division of property among joint owners
or tenants in common or a sale of such property followed by a division of the
proceeds1. In a partition, co-ownership is converted into sole ownership 2. One gives up
his/her right in the commonly owned thing for the right of the other in the thing s/he
takes. Under the Mitakshara school, partition means two things:
1. severance of status or interest, and
2. actual division of property in accordance with the shares so specified, knows as
partition by metes and bounds.
Under Dayabhaga law, partition means only division of property by metes and bounds.
The severance of status is quite distinct from the de facto divisions into specific shares
of the joint property. The former is a matter of individual decision, the desire to sever
himself and enjoy his hitherto undefined and unspecified share separately from others,
while the latter is a consequence of his declaration of intention to sever but which is
essentially a bilateral action. It may be arrived by agreement, by arbitration or by suit.
It is only the coparcenary property that can be subject matter of partition. Separate
property cannot be the subject of partition, nor can property which by custom
descends to one member of the family to the exclusion of other members 3.
Coparcenary property is that property which belongs only to the joint family as a
whole. Ancestral property which is another term for the same is property inherited by a
male Hindu from his father, fathers father and so on. According to the Mitakshara law
the essential characteristic of ancestral property is that sons, grandsons and great
grandsons of the person acquires an interest and the rights attached to such property at
the moment of their birth. If from the very nature of things, the property is not
susceptible to partition, then also it cannot be partitioned. In other words, if the
property can be partitioned without destroying the intrinsic value of the whole
1 www.dictionary.com
2 Class notes
3 Paras Diwan, Hindu Law
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property, or of the shares, such partition ought to be made. If on the contrary, no

partition can be made, without destroying the intrinsic value, a money compensation
should be given instead of the share which would fall to the plaintiff by partition.
Thus three methods of adjustment are available:

1) some of the properties may be enjoyed by the coparceners jointly or in turns;

2) some of the properties may be allotted to the share of a coparcener and its value
adjusted with the other property allotted to the other coparceners;
3) some of the properties may be sold and their proceeds distributed to other
coparceners.
Can dwelling houses, places of worship, right of way be partitioned?
In Nirupama v. Baidyanath4, the court held that in case of dwelling houses, the effort
shall be to effect an arrangement which will leave the house entirely in the hands of
one or more coparceners, or kept for common use.
Similarly with regard to family shrines, temples and idols, it was held in Pramatha v.
Pradumma5 that they should be given to one coparcener with the liberty of the others
to have access to them for the purposes of worship; holding the properties in turn, in
proportion to their share in the property; in case the family makes a living out of the
offerings, each coparceners would worship and take the offerings by turn.
The right of way and other such indivisible property remains in the common use of all
the coparceners.
Why partition?
The law generally favors partition to a great extent since partition results in the
peaceful enjoyment of a property by its owner. Partition also promotes industry and
enterprise, and avoids compulsion of unwilling persons to use their property in
common.
4 AIR 1985 Cal 406
5 AIR 1925 PC 139
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Another purpose for partition is that it helps in avoiding the inconvenience and
disagreement arising from joint possession of property. It also keeps away
unreasonable restraints on the use and enjoyment of property and makes possible the
transfer of title.
The fundamental objective in a partition action is to divide the property in a fair and
equitable way and to not confer any unfair advantage on any co-tenant.
Persons whose property may be subject to partition includes: Co-tenant, Tenant in
common, Cohabitants, Minor, when properly represented, Guardian for a minor or
incompetent, Mortgagor and Heirs.
Over the years certain principles have been evolved with regard to mode of taking
account for partition of property. No coparcener is entitled to call upon the manager
to account for his past dealings with the joint family property, unless he establishes
fraud, misappropriation or improper conversion. Further in Abhaychandra v. Pyari
Mohan6, it was held that no charge is to be made against any coparcener because a
large share of the joint income was spent on his family in consequence of his having a
larger family to support.
Coparceners are not entitled to mesne profits. However, a coparcener who is entirely
excluded from the enjoyment of the family property is entitled to an account of the
income derived from the family property, and to have his share of income ascertained
and paid to him7.

The property that is available for partition has to be calculated through a detailed
process of taking accounts where different factors including debts, the rights of those
entitled to maintenance, etc are considered8. Mitakshara law says that the sons are
bound to pay off the debts of the father if these are not tainted with immorality or
illegality if these have not been provided for at the time of partition itself. In case the
provisions for the payment have not been made it has been held that the sons are liable
to the creditors of the father to the extent of their interest in the property.
6 (1870) 5 Beng LR 347.
7 Krishna v. Subbanna, (1884) 7 Mad. 564
8 K.V. Narayanan v. Ranganadhan, AIR 1976 SC 1715.
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In Deshpande v. Kusum9 it was held that where the father who was the karta of the
family had borrowed money for the improvement of the land then the other
coparceners in this case the sons would be liable for the same. Therefore the
encumbrances on the estate which should be accounted for before the partition
actually takes place are a) the debts due or claims against the family; b) charges on
account of disqualified heirs, of female members and of others who are entitled to be
maintained; c) marriages and such other family ceremonies have to be provided for.

9 AIR 1987 SC 1791

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Types of Partition
The partition can be done in many ways. There are various criteria on the basis of
which the partition can be done. Now lets us look at different types of partition.
Generally, there are two types of partitions. They are:
partition in kind; and
partition by sale.

A partition in kind is a form of partition in which a property is divided among coowners. The individual interests of owners in a property are severed in a way that
each owner can enjoy his/her share of the property free of others and can dispose of
his/her share without any obstruction from others. A partition in kind is also called an
actual partition. Usually, a partition in kind can be conducted easily only when it is
possible to divide a property into plots of nearly equal value. In a partition of kind,
there is normally no apparent injury to the parties due to partition.

A partition by sale, also called a partition by licitation, is conducted only when a

property cannot be physically divided into separate parts. It can also be conducted
when it is not profitable to divide a property because the total value of the divided
pieces of the property would become very low compared to the value of property as a
whole. In this type of partition, a sale of joint property will be conducted and the
proceeds from the sale will be divided among the co-owners.
Partition by sale involves a forced sale of land in the sense that not all parties may be
willing to sell. A partition by sale can be ordered in a condominium form of
ownership when a partition in kind is not legally possible.

Certain jurisdictions provide for another type of partition called partition by allotment.
In a partition by allotment, a court awards complete ownership of land to a single
owner or subset of owners directing them to pay the other owners an amount
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equivalent to the value of their interests in the property. A partition by allotment may
happen when an owner of a major share in a property objects in writing to any sale and
requests that the property may be awarded to him/her at its valuation fixed by the
court. A court may award the entire property to such a party objecting to sale subject
to payment to other parties desiring partition. Payments due to other owners shall be
charged as liens upon the property. The court will direct the time and manner of
payments to be made to the other owners. A sum of money called owelty may be
decreed by the court as part of a judgment of partition, towards compensation by one
former joint owner to another when a partition results in an unequal division of land.
A partition may be:
judicial, or
voluntary.
A judicial partition is also called a compulsory partition. A judicial partition is made
when the co-owners do not agree to a voluntary partition. Under such circumstances,
a lawsuit to compel partition can be filed to sever property interests.
A voluntary partition is made when the co-owners divide the property among
themselves by exchanging individual deeds. Each co-owner owns a part of the
property. They cease to have an undivided interest in the whole property. The parties
can also conduct a partition by sale of the property and divide the proceeds among
themselves.
Now gain there are two types of partition: De jure
De facto
In dejure partition the partition takes place by the order of the court. In this
partition unit of possession and community of interest both ceased to exist. In
this the partition takes place up to this extent.
In de facto partition, the parties does not knock at the door of court to ask for
partition but they simply divide among themselves. The partition is done on
papers but not legally. Partition takes place involuntary or voluntary but they
are living together. In this the community of interst is destroyed only.

On the basis of the partition itself there are partial partition and full partition.
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 Partial partition
Full partition

Under partial partition, the partition is not done completely. It is further done on the
basis of property and coparcenary.
In case of the property is situated in different states or places, court just divides the
property on the basis of place wise. On the basis of jurisdiction property is divided.
In case of property done by coparcenary basis, if one coparcener wants to live
separately and demands property while at the same time others want to live together.
The coparcener demanding will be given property of his share and all others will live
together.
In full partition every coparcener is given their share and they become their separate
property.
There is also one successive partition which takes place place after partial partition in
which if one coparcener demands property and other subsequently demanded then it
is called successive partition.

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Requisites before Partition

The provisions to be made before Partition are as follows:
Some provisions must be made out of the property liable to partition before any
partition is effected.
1. Debts incurred for joint family which are payable out of the joint family property,
provided they have not been contracted for immoral or illegal purposes.
2. Personal debts of the father not incurred for illegal or immoral purposes.
3. Maintenance of dependent female members and disqualified heirs.
4. Marriage expenses of unmarried daughters of the last male holder but not of the
collaterals.
The amount of expenses must be commensurate with the wealth of the family. There is
no need for making provisions for the marriage of unmarried coparceners. The Madras
High Court in a case has held that where the marriage of a daughter is performed after
filing a partition suit but before the finalisation of said suit, the amount spent for the
marriage of daughter is recoverable from the joint family property.

5. Expenses for funeral ceremony of the widow and the mother of the last male-holder.

After the above provision has been made out of the property liable to partition, an
account must be taken of the joint family property in the hands of the manager and
other members of the family. No charge will be made against a coparcener on account
of the fact that a large share of the family income was spent on his family in
consequence of having a large family to support.
The Supreme Court in K.N. Naryanan v. K.V. Rangnathan, held that while dividing the
family estate, it is necessary for the joint family to take account of both the assets and
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the debts, for which the undivided estate is liable and to make provision for discharge
of the debts.
Where property is given to a member in lieu of his personal undertaking to discharge
the debts of the joint family, the Court is to recognise and sustain it. By the aforesaid
arrangement other members were absolved of the responsibility to discharge family
debts.

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Manner of effecting Partition

(1) Partition by Mere Declaration:

Partition under the Mitakshara law is severance of joint status and as such it is a matter
of individual volition. An unequivocal indication of desire by single member of joint
family to separate is sufficient to effect a partition. The filing of a suit for partition is a
clear expression of such an intention.

The oral or written communications by a coparcener could be enough to sever the joint
status but the communication could be withdrawn with the consent of other
coparceners and with its withdrawal partition would not take place.

It is not necessary that there should be a partition by agreement. It can take place by an
act or transaction of coparcener, by which there could be an indication of the
separation of his interest. What type of act, conduct or expression of intention would
disrupt joint status, will be decided on the basis of facts in each case.

Where the communication of the intention to separate has been given with an intent to
give only a threat to it without any real desire to this effect and later on the intention is
not persued, it would not be enough for severance. There would be no separation on
account of the fact that some one of the members of joint family has filed a suit to get
a declaration of insolvency for himself. In absence of any joint property mere
communication of the intention to separate would be enough.

In Raghvamma v. Chenchemma, the Supreme Court laid down that it is settled law
that a member of joint Hindu family can bring about a separation in status by a
definite declaration of his intention to separate himself from the family and enjoy his

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share in severalty. Severance in status is brought about by unilateral exercise of

discretion.

One cannot, however, declare or manifest his mental state in a vaccum. To declare is
to make known, to assert to others. Others must necessarily be those affected by the
said declaration. Therefore a member of a joint Hindu family seeking to separate
himself from others will have to make known his intention to the other members of the
family from whom he seeks to separate. The process of manifestation may vary with
circumstances.

It is implicit in the expression declaration that it should be to the knowledge of the

persons affected thereby. An uncommunicated declaration is not better than a mere
formation or harbouring of an intention to separate. It becomes effective as a
declaration only after its communication to the person or persons who would be
affected thereby.

The Supreme Court in Puttorangamim v. Rangamma, reiterated that it is, however,

necessary that the member of the joint Hindu family seeking to separate himself must
make known his intention to other members of the family from whom he seeks to
separate. The process of communication may vary in the circumstnaces of each
particular case. The proof of a formal despatch or receipt of the communication by
other members of the family is not essential, nor its absence fatal to the severance of
the status.

It is of course, necessary that the declaration to be effective should reach the person or
persons affected by some process appropriate to the given situation and circumstances
of the particular case.

It is, of course possible for the members of the family by a subsequent agreement to
reunite, but the mere withdrawal of the unilateral decalaration of the intention to
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separate, which already had resulted in the division in status, cannot amount to an
agreement to reunite.

The Patna High Court laid down that for separation a division of property by metes
and bounds is not necessary, there must be unequivocal declaration by a member to
show that he separated from the rest of the family.

There is no need of giving a written notice by one coparcener to the other coparcener.
The expression of the desire of a coparcener to separate can be inferred from the
cognate circumstances. An undivided coparcener cannot merely by declaration and
definition of his share in a deed of transfer executed by him validly make a transfer of
a share to which he would have been entitled if he had effected a partition before
making the transfer.

The unequivocal intention to separate has to be communicated to the other

coparceners in order to effect a partition by severance of status. A severance of status
is not brought about by transferring a certain specific share in joint family property.

(2) Partition by Will:

Partition may be effected by a coparcener by making a will containing a clear and

unequivocal intimation to the other coparceners of his desire to sever himself from
joint family or containing an assertion of his right to separate. In Potti Laxmi v. Potti
Krishnamma, the Supreme Court observed, Where there is nothing in the will
executed by a member of Hindu coparcenary to unmistakably show that the intention
of the testator was to separate from the joint family, the will does not effect severance
of status.

An ineffective will, sometimes though not always, if otherwise consented by all adult
members may be effective as a family arrangement but as the father of a joint Hindu
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family has no power to impose a family arrangement under the guise of exercising the
power of partition, the power which undoubtedly he has but which he had failed to
effectively exercise, cannot in absence of consent of all members bind them as family
arrangement.

Where partition takes place on an unilateral will of a coparcener, it cannot be brought

to an end by revocation of the will. The same consequence will follow where a desire
to severance has been expressed by the guardian of a minor coparcener and the court
has upheld its propriety.

(3) Conversion to another Faith:

Conversion of a coparcener to any other religion or faith operates as partition of the

joint status as between him and other members of the family. The coparcener, who has
converted, no longer possesses the right of survivorship as he ceases to be a
coparcener from the moment of his conversion and he takes his share in the family
property as it stood at the date of his conversion. Reconversion of the convert to
Hinduism does not ipso facto bring about his coparcenary relationship in absence of
subsequent act or transactions pointing out to a reunion.

(4) Marriage under Special Marriage Act, 1954:

Marriage of a Hindu under the Special Marriage Act, 1954 causes severance of joint
status.

(5) Partition by Agreement:

An unequivocal expression of the desire to use the joint family property in certain
defined shares may lead the members of joint family to enter an agreement to effect a
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partition. The two ideas, the severance of joint status and a de facto division of
property are distinct. As partition under the Mitakshara law is effected on severance of
joint status, the allotment of shares may be done later. Once the members of joint
family or heads of different branches of the coparcenary agree to specification of
shares, the same can be treated to result in severance of joint status though the division
by metes and bounds may take place later on.

In Approver v. Ram Subba Iyer the Privy Council had observed that no coparcener can
claim any defined share in the joint family property in a joint family, but where the
coparceners enter into an agreement to the effect that every member will have a
specific and defined share in future, the joint status is affected and every coparcener
acquires a right to separate his specific share and use the same to exclusion of others.

(6) Partition by Arbitration:

An agreement between the members of joint family whereby they appoint an arbitrator
to arbitrate and divide the property, operates as a partition from the date thereof. The
mere fact that no award has been made is no evidence of a renunciation of the
intention to separate. Where all the coparceners jointly have referred the matter
relating to the partition of their shares in the joint family to an arbitrator, this very fact
expressly indicates their intention to separate from joint status. In such cases even if
award is not given, their intention is not dissipated.

(7) Partition by Father:

The father may cause a severance of sons even without their consent. It is the remnant
of the ancient doctrine of Patria Potestas. The father during his lifetime is competent
to effect such partition under Hindu law and it would be binding on his sons.

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It would be binding on the sons not because they have assented to it but because the
father has got the power to do so, although this power is subject to certain limitations
on the basis of its utility and general interest of the family. It has to be considered as to
whether it is lawful in accordance with the spirit of Hindu law or not.

According to Supreme Courts decision is Kalyani v. Narayanan, a Hindu father under

Mitakshara law can effect a partition among his sons even in the lifetime of karta of
joint family and such partition would be binding on them. In such a case he can define
and specify his share along with his sons and thus effectuate a separation among them.
But in no case ho can divide the joint family property among the different members by
virtue of a Will, although he could do it with their consent.

Where the father has divided the property unequally amongst his sons, then too it
would be binding. But no person can give his consent to the unequal share on behalf of
a minor. The sons have the right to challenge the unequal division of shares or an act
of unilateral division of shares by the father, but it will have no bearing on the
severance of their joint status. Where the father has divided his self-acquired property
unequally among his sons, it could not be challenged by them, nor is there any need of
a registered deed to this effect.

(8) Partition by Suit:

Mere institution of a partition suit disrupts the joint status and a severance of joint
status immediately takes place. A decree may be necessary for working out the
resultant severance and for allotting definite shares but the status of a plaintiff as
separate in estate is brought about on his assertion of his right to separate whether he
obtains a consequential judgment or not.

So even if such suit was to be dismissed, that would not affect the division in status
which must be held to have taken place when the action was instituted. Ordinarily a
partition is affected by instituting a suit to this effect. In case of a suit for partition in
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joint status, fathers consent to the suit for partition is no longer necessary. The son is
fully eligible to file a suit for partition even during the lifetime of father.

When the plaintiff files a suit for partition the share which he received in the earlier
partition would not be free from charges and liabilities. If the creditors have obtained
the decree against the joint family property, then even that share of the plaintiff which
he did not receive, would also be liable in the same manner as that of the other
coparceners.

The above nine modes of partition are not exhaustive. There may be other situations as
well which, if expressed in equivocal intention for partition, will be admissible.

Exception:

The general rule mentioned above will not apply where a suit is withdrawn before trial
by the plaintiff on the ground that he did not want separation any more. In such a case
there would be no severance of joint status. Where the suit is proved to be fraudulent
transaction resorted to with an intent to create evidence of separation, no severance in
the joint status takes place. If the defendant dies and the suit is withdrawn on that
ground there is no separation.

Mere institution of a suit for partition by a minor followed by abatement of the suit by
death of the sole defendant does not effect the severance of the joint status.

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CONCLUSION & SUGGESTION

One can conclude that the law is changing dynamically trying to bridge the gap
between the ancient Hindu law principles and the modern conceptions of equality and
liberal discourse. The result may sometimes be abstruse, but the direction that the law
is taking is right.
- The principles regarding partition under Hindu law are mostly governed by
Mitakshara school and remain more or less the same. The courts have generally
upheld the old principles giving suitable additions or deletions in the search of
equity. Most of these principles are based on sound logic and reasoning.
However, various enactments have sought to remedy the inherent inequalities
in the ancient texts and tried to give adequate protection to women. Even
though they have not been granted the status of a coparcener (except for four
southern states and Maharashtra) their rights have been substantially enhanced.
The first progressive legislation passed in this regard was the Hindu Womans
Right To Property Act. It arrested the operation of survivorship against the
fathers undivided share in coparcenary property in favor of the son by
substituting the wife of the deceased in the place of the deceased.
The Hindu Succession Act (section 6) has made further inroads into the old
hierarchy. Not merely the widow of the deceased but also his daughter as well
as the mother are to share the property with the son. They can always ask for
the partition of the property with respect to their shares. Not only this, they take
property absolutely with full powers of alienation where as the share taken by
the son will be subject to the incidents of coparcenery property vis a vis his
own male descendants. However, other provisions like Section 23 and its
interpretation by the courts are still causing lot of hardship for women heirs.
One can conclude that the law is changing dynamically trying to bridge the
gap between the ancient Hindu law principles and the modern conceptions of
equality and liberal discourse. The result may sometimes be abstruse, but the
direction that the law is taking is right.

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BIBLIOGRAPHY

Diwan Paras, Modern Hindu Law, Allahabad law Agency, 22nd edition,2015
Diwan Paras, Family Law, Eastern Book Company, 10Th edition, 2013
Class Notes
Oxford English Dictionary 11th Edition
www.indiakanoon.org
www.manupatra.com
www.legalservicesindia.com
www.academia.edu
www.atlantanews.com
www.quora.com

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