law relating to partition

7/26/2019 Law Relating to Partition

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SUBMITTEDBY: ADITYASARKAR(BLIL~1141)

NATIONALLAWSCHOOLOFINDIAUNIVERSITY

NAGRBHAVI, BANGALORE-560072

SUBMITTEDON10THAPRIL, 2004


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Table of Contents

TABLEOFCONTENTS 1

TABLEOFCASES 3

TABLEOFSTATUTES 4

INTRODUCTION 5

RESEARCHMETHODOLOGY 7

AIMSANDOBJECTIVES 7

SCOPEANDLIMITATIONS 7

RESEARCHQUESTIONS 7

CHAPTERISATION 8

SOURCESOFDATA 8

METHODOFWRITING 8

MODEOFCITATION 8

PARTITION 9

CONCLUSION 26

BIBLIOGRAPHY 27

ADITYASARKAR(BLIL~ 1141)

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TABLE OF CASES

1.Ajit Kumar v. Ujayar Singh, AIR 1961 SC 1334.

2.Apajiv.Ramchandra, (1812) 16 Bom 29.

3.ApoorvaShantilalv.CIT,AIR 1983 SC 49.

4.Appoovierv.RamaSubbaAiyan,(1866) 11 IA 7!.

5.Bapujiv.Dattu, AIR 1923 Bom 42!.

6.Bhagwan Dayal v.Reoti Devi, AIR 1962 SC 287.

7.Deshpandev.Kusum, AIR 1978 SC 1791.

8.Devagya Tuklyav.Shivgya Tuklya,AIR 1973 "#s 4.

9.Dukhi Dibyav.Landi Dibya, AIR 1978 $%& 182.

10.Fakimathv.Krihnachandra!ath, AIR 19!4 $%& 176.

11."irija Bai v. Sadahiv, AIR 1916 'C 14.

12."unehwarv.Durga#raad, AIR 1917 'C 146.

13.Gurupadv.Hirabai,AIR 1978 SC 1239.

14.$aradhone$aldarv. Uha %haran Karmakar, AIR 19!! Cal 292.

15.Jagat Krishnav.Ajit Kumar,AIR 1964 $%& 7!.

16.K&'& !arayanan v.Ranganadhan, AIR 1976 SC 171!.

17.Khunni Lal v. "obind, (1911) 38 IA 87.

18.Krihendra v.Debendra, (198) 12 C 793.

19.Lakhman Dada !aik v.Ramachandra, (1881) 7 IA 181.

20.Lakhmi %hand v.(hroo Devi, AIR 1977 SC 1694.

21.Lilawati v.#ara Ram, AIR 1977 *' 1.22.)t& Bholabai v.Dwarka Da, (1924) ! +a 37!.

23.)ulan %handv.KanchhendilalAIR 19!8 "' 34.

24.!abiha Begumv.Arumaga *hewarAIR 1966 "a- 111.

25.!arayanv.Arjun, AIR 1986 Bom 122.


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26.!irupama v.Baidyanath, AIR 198! Cal 46.

27.#edaubbhayav.Akkamma, AIR 19!8 SC 142.

28.#eriawami v.#eriawami, (1878) ! IA 61.

29.#erra+u v. Subbrayadu, (1921) 48 IA 28.

30.Pramathav.Pradumma,AIR 192! 'C 139.

31.#udiavav.#avanaa, AIR 1923 "a- 21!.

32.#uttrangammav.Rangamma, AIR 1968 SC 118.

33.Raghavammav. %henchamma, AIR 1964 SC 136.

34.Raja "opal v. 'enkataraman!1 C 829 ('C).

35.Ram Narain Chaudhuryv.Pan Kuer,(193!) 62 IA 16.

36.Ramabaiv.$arnabai, (1924) !1 IA 177.

37.Ramabhadra v. 'irabhadra, (1899) 26 IA 167.

38.Ratnam %hettiar v.Kuppuwami, AIR 1976 SC 1.

39.Sachindrav.$em %handra, AIR 1931 Cal !73.

40.Sartaj Kuari v.Deoraj Kuari, (1888) 1! IA !1.

41.Sat !arayanv.Da, (1936) 63 IA 384.

42.Savitribhaiv.Bhaubat, AIR 1927 Bom 13.

43.Shiromaniv.$em Kumar, AIR 1968 SC 1299.

44.'enkata Reddiv.Lakhmama, AIR 1963 SC 161.

45.Venkatappav.Gangamma,AIR 1988 e% 133.

46.'enkuraddyv. 'enkuraddy, AIR 1923 "a- 471.

TABLE OF STATUTES

1. Caste /&sab&l&t&es Removal A0t, 18!.

2.Hindu Inheritance (Removal of Disabilities) Act, 1928.

3. *&n- +a of Ine%&tan0e (Amen-ment) A0t, 1929.

4. *&n- S00ess&on A0t, 19!6.


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!. *&n- omens R&t to '%o5e%t# A0t, 1937.

6. e%ala o&nt *&n- am&l# S#stem (Abol&t&on) A0t, 1976.

7. Te *&n- S00ess&on (An-%a '%a-es Amen-ment) A0t, 198!.


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INTRODUCTION

The common sense understanding of the term partition is division and in the legal

sense the term in essence signifies the same thing. Yet this division that takes place of joint

family property comes with several nuances and involves different areas which require to be

understood in order to understand the very institution of a joint family. According to

Mitakshara law partition consists in the numerical division of property which belongs to

the joint family.1

This numerical division, to be completely and properly understood involves several

sub issues such as the nature of the property to be divided, the persons entitled to a share

and the calculation of such shares, what exactly constitutes partition, the mode of division

of property, the reopening of partition etc. This is only possible with a detailed reference to

the different writings on the topic that already exist, and the plethora of judicial

pronouncements that exist on the subject. This being the subject of many disputes in the

daily operation of a joint family there are judicial pronouncements which date back a

hundred years or more and are still relevant to the topic.

An attempt shall also be made to try and understand the manner in which the

different statutes that have been criticised as piecemeal legislations have actually influenced

and changed the law negating the effect of several judicial decisions and in some cases

leading to more confusion. A special attempt shall also be made to try and understand the

effect of the amendments that have been made in the Southern States of India which have

changed the very nature of partition by creating new coparcenars. The different advantagesand disadvantages that ensue as a result shall also be discussed.

The most important points surrounding a partition are the rights and liabilities that

arise out of the same due to the nature of the process of partition. Keeping this in mind

1"lla,$indu Law, S. A. /esa& e-s., 18te-., ol. 1, (Btte%o%ts In-&a, e /el&, 21) at !97.


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there shall be an attempt made in this research paper while discussing the various issues

surrounding the various facets of partition to examine the issue from the perspective of one

whose rights may be either favourably or prejudicially affected.

The importance of this paper, therefore, lies in the fact that it attempts to discuss an

area of law which is essential to the understanding of the institution of a joint family if it is

appropriate to call it an institution at all which in its turn is essential for the understanding

of the law governing succession and inheritance in India. This shall be done through an

examination of the different commentaries on the issue and through primarily a discussion

of the different judicial pronouncements on the different relevant areas. This discussion

shall take place wherever possible from the perspective of an individual whose rights are

being either prejudicially or favourably affected by the partition or legal issue surrounding

the process of partition.


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RESEARCH METHODOLOGY

AIMSANDOBJECTIVES

The aim of this research paper is to examine in some detail from the perspectives of

the people who either derive some advantage from the process of partition or are

prejudicially affected by such a process. The aim of this research paper shall also be to

examine the effect that the later statutory enactments have had on the traditional law and

whether these effects are desirable or not. The aim of this research paper shall finally be to

examine the body of judicial pronouncements and attempt to look at the different

contradictions that exist within this and an attempt shall also be made to resolve or work

around these conflicts of judicial reasoning.

The objectives of this research paper shall be to establish a clear cut picture of the

law relating to partition as it stands to day after statutory enactments and different judicial

pronouncements.

SCOPEANDLIMITATIONS

Due to the incredibly vast corpus of material that is available on this issue the scope

of this research paper is incredibly large yet due to constraints of time and space and

availability of the very old judicial pronouncements on the issue the scope of this research

paper is somewhat limited.

Also the discussion shall be limited to the law as it stands today after the different

statutory enactments and therefore there shall only be a discussion on the Mitakshara

system of law and the system prevailing therein.

RESEARCHQUESTIONS

1.What property can be partitioned?

2.Who are the persons entitled to a share?


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3.What constitutes partition?

4.What are the modes by which division of property may take place?

5.What is reopening of partition?

CHAPTERISATION

Instead of having chapters which seems to signify a certain degree of separability of

concepts which is not possible in this case this research paper has been divided into several

sections each of which deal with one of the research questions. Through the process of

dealing with the research questions the modern position of law shall also be dealt with as

modified by the different statutory enactments.

SOURCESOFDATA

1.Articles

2.Books

3.Case Law

METHODOFWRITING

The researcher has followed a primarily analytical method of writing though there

may be parts where the writing is descriptive in nature.

MODEOFCITATION

The researcher has followed an uniform method of citation throughout this research

paper.


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PPARTITION

artition being a huge subject and one that cannot be dealt with comprehensively within the

constraints of this research paper effectively if the normal approach of attempting a dry

enunciation of different principles is employed. This research paper shall therefore attempt

to examine the different issues involved in partition through an examination of the different

rights and liabilities of the different characters who are involved in the partition. This shall

be accomplished primarily through an examination of the case law on the subject. Partition

has been defined as the adjustment of diverse rights regarding the whole, by distributing

them in particular portions of the aggregate.2Although initially discouraged it has later

come to be accepted and now means division of property by metes and bounds.

I

The first issue that has to be discussed is that of the property which actually, is the

subject matter of partition. Within this section there shall be an examination of the rights of

the persons entitled to maintenance, the issues surrounding the division of property which

is by its very nature not divisible, questions related to the maintenance and requirement for

accounts by thekarta, and the question regarding the determination of coparcenary and self

acquired property.

COPARCENARYANDSELFACQUIREDPROPERTY

Only joint family property is the subject of partition and the self acquired property is

not a subject of the same. A detailed discussion of coparcenary property is not possible here

due to the limited space available here. However it shall suffice to say that 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

2".R. "all&0 e-s., *agore Law Lecture, )itra on Law o- .oint #roperty and #artition , 3%- e-., (amal +a

*ose, Cal0tta, 1991) at 317. See also :. Sa%a%,A *reatie on $indu Law, R.. Sa%a% e-s., ! te-., (;aste%n +a

*ose Cal0tta , 1924) at 49.


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father, fathers father or fathers fathers father.3According 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.4

Joint family there may be property which may belong only to the members of

the joint family not as a family but individually.5As regards the self acquired property of

the father whatever restrictions that there may have been against the willing away of such

property case law has removed all such restrictions and therefore only when this property

becomes ancestral property in the hands of the successors does the same become available

for partition.6Dealing only with coparcenary property there are several restrictions that

have been placed on the division of even coparcenary property. These are to do with the

nature of property namely whether it is property whose worth will be destroyed on the

same being partitioned or not or whether the same is property that has come only to a

single member of the family to the exclusion of the other members of the family.7

The general principle appears to be that as with the evolution of property whose

value diminishes on the division of the same the strict letter of the texts has been explained

away and there has been a trend towards decisions which say that where the property is

indivisible by nature there the property should either be held jointly or should be held in

turns, or the property should be sold and the value shared or retained by one coparcener.8

3Supranote 1 at 38. See also S. enata%aman, A *reatie on $indu Law, 2n-e-., ($%&ent +onman, e /el&,198) at !2 o&nt am&l# '%o5e%t# o%

Se5a%ate '%o5e%t#?, ol. 2!(1), 1983, 5. 1.&0 a%es tat te &nte%5%etat&on tat as been &ven to te A0t b# teCo%ts as also 0ane- te manne% &n &0 @o&nt fam&l# 5%o5e%t# &s v&ee-. See also R.+. Btan&, ='a%t&t&on of

*&n- n-&v&-e- am&l# n-e% In0ome Ta A0t?, (2) 164 CTR (A%t&0les) 63.!".R. "all&0 e-s., *agore Law Lecture, )itra on Law o- .oint #roperty and #artition , 3%- e-., (amal +a

*ose, Cal0tta, 1991) at 334. See also #eriawami v.#eriawami, (1878) ! IA 61. See alsoLakhman Dada !aikv.Ramachandra, (1881) 7 IA 181 bot of 5%onon0e ato%&tat&vel# tat se5a%ate 5%o5e%t# o% self a0&%e- 5%o5e%t#

a%e not -&v&s&ble.6(d&7Supra note 1 at !72. See also A. 55sam& e-s., )ayne/ *reatie on $indu Law and Uage , 13te-., (Ba%at+a *ose, e /el&, 1998) at 79.8A. 55sam& e-s.,)ayne/ *reatie on $indu Law and Uage, 13te-., (Ba%at +a *ose, e /el&, 1998)

at 71.


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Mullasays that

if the property can be partitioned without destroying the intrinsic value of the whole

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

Let us take the example of a dwelling house for instance, where there had been alienation of

a part of the house (the undetermined share of one of the coparceners), the court tried to

come to a conclusion whereby it stated that an arrangement should be made such that the

property should be remain in the hands of one of the coparceners or for shared and

common use by using the right of pre-emption.9

A special mention should be made of the decisions which govern the partition of

places of worship and idols. The most authoritative pronouncement of the Court has been

in the case ofPramathav.Pradumma10where it was held that the right of worship of an idol

cannot be made the subject matter of partition and that the remedy was to have the joint

owners of the property perform the worship in turns.11

PROPERTYAVAILABLEFORPARTITION

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 considered.12The payment of debts is an especially

interesting area because it is in this area that it appears that according to the Mitakshara law

9!irupama v.Baidyanath, AIR 198! Cal 46. See also$aradhone$aldarv. Uha %haran Karmakar, AIR 19!!

Cal 292.1AIR 192! 'C 139.11See alsoDukhi Dibyav.Landi Dibya, AIR 1978 $%& 182 e%e &t as el- tat a ta%ba%& &s not -&v&s&ble. See

also Sachindrav.$em %handra, AIR 1931 Cal !73 e%e &t as el- tat &n te absen0e of te -e-&0at&on of a

b&l-&n fo% te o%s&5 of te fam&l# &-ol, te b&l-&n sol- not be e0l-e- f%om 5a%t&t&on bt te Co%t ma#&ve one of te 0o5a%0ene%s to ma&nta&n te 5%o5e%t# o% b# te 5%o5e%t# at a valat&on.12'enkuraddyv. 'enkuraddy, AIR 1923 "a- 471D See also Raja "opal v. 'enkataraman!1 C 829 ('C)DK&'&

!arayanan v.Ranganadhan, AIR 1976 SC 171!.


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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.13In 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.14

In the case of

Deshpandev.Kusum15it was held that where the father who was thekartaof the family had

borrowed money for the sinking of a bore well in the land, i.e. 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

1.the debts due or claims against the family;

2.charges on account of disqualified heirs, of female members and of others

who are entitled to be maintained;16

3.marriages and such other family ceremonies have to be provided for;

ACCOUNTS

It is in this light therefore that the taking of accounts becomes absolutely important and the

mode of taking accounts as has been laid down by the courts of law is as follows. The taking

of accounts only takes place after the different liabilities of the estate to be partitioned have

been accounted for and the taking of this account is simply an enquiry into the existing

assets.17Also while taking accounts the fact should be remembered that if a member of the

joint family has made an investment in the property of the joint family out of his own

separate property without an intention that the same should be made part of the joint

13Sat !arayanv.Da, (1936) 63 IA 384. See also . ma%, =Bas&s an- at%e of '&os $bl&at&on of Son to 'a#ate%s /ebt v&s


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family property then the same constitutes a debt owed to that member by the joint family as

a whole.18

It has to be remembered that the liability of the Karta is only from the date of

severance because before that accounts cannot be demanded unless the person claiming,

alleges and proves fraud or wrong allocation of funds. In that case he would be entitled to

the accounts for the whole period of management.19

Provisions should also be made for the marriage expenses of sisters and also the

expenses of the unmarried sisters according to Yajnavalkya and also according to the

Smritichandrika.20Provisions should also be made for the funeral expenses of the mother if

the division has been made between the father and the sons but there is no requirement for

the marriage expenses of a coparcener to be provided for.21

Therefore in this section what has been dealt with are the different kinds of property

which are available for partition. What has also been dealt with are the liabilities of the

coparceners who are liable for the payment of debts of the father and also the marriage

expenses of the unmarried sisters. The liabilities of thekartaas regards tendering of

accounts have also been dealt with and the different modes of taking accounts has also been

dealt with.

II

This section deals with the rights of those who are entitled to claim partition of joint

family property or those who although not entitled to partition are at least entitled to some

portion of property upon the partition of the property. In this section the areas that shall be

looked at in detail along with an examination of the broader principles governing the issue

are the the rights of an illegitimate son, the rights of female heirs who have been assigned

18Ramabhadra v. 'irabhadra, (1899) 26 IA 167.19Supra note 8 at 713.2Supra note 8 at 711.21Supra note 8 at 711.


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special status by the different amendments that have been made by the Southern States such

as Andhra Pradesh, Tamil Nadu etc to the Hindu Succession Act, those disqualified due to

some disability, alienees etc. These shall be dealt with as the different persons who are

entitled to claim partition and those entitled to get a share on partition are dealt with in this

portion.

DISQUALIFICATIONONACCOUNTOFDISABILITY

Although it is a rule that every coparcener is entitled to a share upon partition22the

fact remains that there are several heirs who are also excluded. Before the Hindu Succession

Act23and the Caste Disabilities Removal Act24came into being both unchastity of a widow at

the time of her husbands death and the loss of caste or religion are grounds for the

exclusion of these people as heirs.

The Hindu Succession Act has removed the same disability from widows and the

Caste Disabilities Removal Act, 1850 operates to remove the disability as far as the person

who is undergoing conversion to another religion or has suffered a loss of caste is

concerned25and as far as his or her heirs are concerned the law of the religion that the

individual has converted shall apply insofar as succession is concerned.

However the Courts have pronounced authoritatively as far as the operation of

physical and mental defects act as disqualifying certain heirs from being coparceners or

rather from being entitled to a share on partition. This disability also operates only for the

afflicted individual but does not affect the rights of the heirs of such a coparcener.26

The following are those who have been excluded from inheritance according to the

interpretation that has been given to the texts by the Courts:

22Sartaj Kuari v.Deoraj Kuari, (1888) 1! IA !1 at 64.23*&n- S00ess&on A0t, 19!6.24Caste /&sab&l&t&es Removal A0t, 18!.2!Khunni Lal v. "obind, (1911) 38 IA 87.26Supra note 1 at 221.


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1.Blindness27, deafness28and dumbness29are some of the primary reasons for

disqualification of heirs if these are congenital and incurable both. Along with these

congenital impotence, lameness, and want of any limb which is also congenital also

operate as physical disqualifications. Virulent leprosy as far as rendering a person

unfit for social intercourse also acts as a bar.30

2.Lunacy (which need not be congenital or incurable as long as it exists at the time of

severance)31or complete and absolute congenital idiocy operate as bars to succession

for a person.32

This position has been changed by the enacting of the Hindu Inheritance (Removal of

Disabilities) Act, 1928 which removes the bars to succession for all other heirs other than

those who are and have been since birth either afflicted by lunacy or idiocy.33

There are no special provisions as regards women and therefore if a disability acts as

far as a man is concerned it also applies to a woman to disqualify her.

Traditional Hindu law therefore appears to have been at least partially countered by

the enacting of the statute and the only criticism that may be attempted of the same is that

that may be taken to apply to all piecemeal legislation.

At this point in the research paper it might be beneficial to cast a look upon the

structure of this portion of the research paper. At the very outset the persons disqualified

from receiving a share have been dealt with and thereafter what shall be dealt with are the

different persons who may claim partition naturally under a simple reading of the

scriptures and surrounding whose right to claim partition there is not much controversy.

Thereafter those heirs whose rights have been matters of some dispute shall be dealt with

27 "unehwar v. Durga#raad, AIR 1917 'C 146D #udiava v. #avanaa, AIR 1923 "a- 21!D Fakimath v.

Krihnachandra!ath, AIR 19!4 $%& 176.28Savitribhaiv.Bhaubat, AIR 1927 Bom 13.29Supra note 1 at 223.3Ramabaiv.$arnabai, (1924) !1 IA 177.31Bapujiv.Dattu, AIR 1923 Bom 42!.32Supra note 1 at 221.33*oeve% te A0t as 0ome &nto fo%0e onl# s&n0e 1928 an- -oes not ave %et%os5e0t&ve effe0t.


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and lastly the controversy created by the different amendments undertaken by the different

Southern States shall be dealt with along with the rights of the female members to a share.

It is necessary to draw a distinction at this juncture of this paper between those who

can demand a partition and those who receive a share on partition. Therefore at the

beginning of this part of this portion of the research paper those who are entitled to claim

partition shall be dealt with.

THOSEENTITLEDTODEMANDPARTITION

Sons, Grandsons and Great Grandsons:

Every adult coparcener is entitled to demand and sue for partition of the

coparcenery property at any time. In the Bombay School however the son does not have an

unfettered right to partition without the consent of the father if the father is joint with his

own father or with his brothers or with other coparceners although this right is available to

a son when the father has separated from the others.34The other High Courts have not

recognised such a fetter on the right to demand partition of a son. In the case ofDevagya

Tuklyav.Shivgya Tuklya35it has been held that other schools do not recognise any such

restriction on the right to partition. In fact this case dissents from the Bombay school and

agrees with J. Telangs dissenting opinion in the case ofApajiv.Ramchandra&

Under Mitakshara law therefore, the father of a joint family has the power to divide

the family property at any time during his lifetime provided he gives the sons an equal

share as himself, and if he does so not only is this a partition between himself and his sons

but also a partition between the sons inter se i.e. between themselves and the consent of the

sons is not necessary for such a purpose.

36

This power of the father which is sometimesknown as the superior power of the father has been upheld by the Supreme Court in the

34!arayanv.Arjun, AIR 1986 Bom 122. In Bomba# te 0ase of Apajiv.Ramchandra, (1812) 16 Bom 29 as been

a00e5te- as lo0s 0lass&0s t&ll -ate an- -oes not seem to ave been ove%%le- b# te 5%onon0ements of teS5%eme Co%t.3!AIR 1973 "#s 4.36)ulan %handv.KanchhendilalAIR 19!8 "' 34.


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case ofApoorvaShantilalv.CIT37where the case involved two partial partitions which had

taken place according to the claims of the karta between the members of the family but as

the division had not taken place at the instance of the children and also since there had not

been equal division of property therefore this claim of partition was contested by the

Income Tax Authorities.38The same is not open to the grandfather with respect to the

grandsons in that he cannot effect a partition between his grandsons although he may

assign shares to them.39

SONSBEGOTTENBEFOREANDAFTERPARTITION

Within the category of sons an interesting example is that of the son who is begotten before

but is born after partition. The rule governing the same has been authoritatively laid down

by the Courts in a number of cases where they have said that the son who was born after

partition took place but begotten before partition took place is entitled to a share and if a

share has not already been set aside for him then he is entitled to have partition reopened

and demand his legitimate share. The rule regarding the same has been laid down

authoritatively by the case ofJagat Krishnav.Ajit Kumar40which stated that where the son

had been born after partition took place but had been begotten before partition as opposed

to being both conceived and born after partition took place was entitled to a share whereas

in the latter case the son although entitled to a share from his fathers property could not

ask for a share of the property as divided at the time of partition and also could not ask for

a reopening of partition if the father had reserved a share for himself.41However he is

entitled to a share of both the separate property of the father and also the share of the

property that the father has received after partition in case he had reserved a portion for

himself but if he had not then he is entitled to have partition reopened and to have a shareallotted to him.42

37AIR 1983 SC 49.38It &s also oeve% ell establ&se- tat te sa%es &f neal bt a%ee- to b# te sons a%e b&n-&n 5on te sons.39Supra note 1 at !79.4AIR 1964 $%& 7!.41Supra note 1 at !82.42Supra note 1 at !82.


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The illegitimate son poses another interesting problem insofar as the discussion on

inheritance is concerned. According to all the scriptures and the interpretations that have

been given to them by the courts before the enactment of the Hindu Succession Act as far as

the rights of the upper castes were concerned, they were not entitled to anything, however

the position was different as regards a sudra who although not entitled to claim partition

during the lifetime of his father was entitled to a share equal to half the share obtained by

the legitimate son.43However as the law stands now, under section 3(j) relation has been

defined as legitimate kinship and it has been said in the proviso to the section that

illegitimate sons are related to their mothers and their heirs are related to them. This

therefore is one of the primary criticisms that is possible of the piecemeal legislation which

does not provide for the rights of illegitimate sons that were guaranteed under the

customary law.

Minors are also entitled to partition but only when the he acts through his next best

friend and the courts have been pliant in the matter of granting partition only insofar as the

protection of the interests of the minor are concerned and therefore only to protect the

minor from danger as far as his interests are concerned the court may allow partition. It

must be remembered that the time of partition is however the date of the institution of the

suit and not when the same is ratified by the Court. This issue has been pronounced on by

the Supreme Court in a number of cases.44

An alienee also has certain rights regarding the undivided interest of a coparcenor

which he may have purchased. A purchaser of interest can according to Mulla claim

partition in Bombay, Madras and Madhya Pradesh while this is not possible in Bengal and

Uttar Pradesh.

45

According to all schools however a purchaser can demand partition in theexecution of a decree and where the purchase has been made in the pursuance of the same.

THEPOSITIONOFWOMEN

43Ajit Kumar v. Ujayar Singh, AIR 1961 SC 1334.44#edaubbhayav.Akkamma, AIR 19!8 SC 142D see also 'enkata Reddiv.Lakhmama, AIR 1963 SC 161D see

also!abiha Begumv.Arumaga *hewarAIR 1966 "a- 111.4!Supra note 1 at !86.


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The position of women is something that has undergone, if not radical, at least

substantial change in the law as far as the law of partition is concerned.46Part of this has

been due to the different statutory enactments.

According to traditional law the fathers wife is entitled to have property equal to her

sons and enjoy the same separately from her husband in case of a partition although she

does not have the right to claim partition herself.47As regards a grandmother the position is

the same as the mother although there is some controversy regarding whether she is

entitled if there is a partition between her son and her grandson and the Calcutta and Patna

High Courts have said that she is but the Allahabad and Bombay Courts have differed.48In

case of a widow now the change that has occurred is that although initially along with the

widow of a predeceased son and the widow of a predeceased son of a predeceased son she

was entitled to some rights even when the coparcener left male heirs she had only a limited

interest in the property49but now in the Hindu Succession Act she has been given absolute

title over the same.50The Hindu Succession Act has also made another significant change

where the rights of female heirs are concerned. This is with respect to the idea of notional

partition which is enshrined in Section 6 of the same. What this section does is that through

the proviso it says that if a male Hindu dies intestate and he leaves a female heir surviving

who is specified in Class I of the Ist schedule of the Act or a male heir claiming under such a

female heir the interest devolves by intestate or testamentary succession and not by the rule

of survivorship.

The ambit of this rule is easier to explain with the help of the case ofGurupadv.

Hirabai,51where the point in issue was as follows: The widow of one Khandappa had filed

46'.C. a&n, =omens '%o5e%t# R&ts n-e% T%a-&t&onal *&n- +a an- te *&n- S00ess&on A0t, 19!6 > Some$bse%vat&ons?, ol. 4! (3F4), 23, 5. !9 at !24. See also . Ramasam&, =R&t of emale "embe%s &n 'a%t&t&on

S&t?, (23) 184 CTR (A%t&0les) 83.47Shiromaniv.$em Kumar, AIR 1968 SC 1299DLakhmi %hand v.(hroo Devi, AIR 1977 SC 1694.48".R. "all&0 e-s., *agore Law Lecture, )itra on Law o- .oint #roperty and #artition, 3%-e-., (amal +a

*ose, Cal0tta, 1991) at 337.49*&n- omens R&t to '%o5e%t# A0t, 1937 &0 b&lt on te *&n- +a of Ine%&tan0e (Amen-ment) A0t, 1929&0 a- &n &ts t%n %est%&0te- te 5%&n0&5le of s%v&vo%s&5.!S. 14, *&n- S00ess&on A0t, 19!6.!1AIR 1978 SC 1239.


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for partition saying that she was entitled to 7/24thof the joint family property because of the

following family structure:

Khandappa Sangappa Magdum

- Hira Bai (Plaintiff)

---------------------------|-------------------------------

| | | | |

Gurupad Bayawwa Bhagirathibai Dhondubai Shivapad

(Dft! ") (Dft! #) (Dft! $) (Dft! %) (Dft! &)

In the language of the Court: If a partition were to take place during Khandappa's lifetime

between himself and his two sons, the plaintiff would have got a 1/4th share in the joint

family properties, the other three getting a 1/4th share each. Khandappa's 1/4th share

would devolve upon his death on six sharers : the plaintiff and her five children, each

having a 1/24th share therein. Adding 1/4th and 1/24th, the plaintiff claims a 7/24th share

in the joint family properties.52

Holding for the widow the court explained itself by saying that it did not matter

whether partition actually took place or not, the idea behind the section was to ensure that

the fictional act of notional partition was carried out irrespective of the act and calculate the

shares as if partition had taken place irrespective of reality.

In this way by the double act of creating the heirs in the Schedule and the act of

notional partition the legislature has succeeded in granting greater rights to the female

heirs.

The last portion to be dealt with is the question of creating female coparceners

through an amendment to the Hindu Succession Act through the introduction of sections

29A etc by the Andhra Pradesh Legislature53following which similar amendments have

been made by the Tamil Nadu legislature and the Karnataka legislature. The Kerala

legislature has instead abolished the joint family system altogether.

!2(d.!3Te *&n- S00ess&on (An-%a '%a-es Amen-ment) A0t, 198!.


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This has been a revolutionary move aimed at the equality of sexes, something which

has always been an issue in the traditional Hindu Law which is heavily biased towards the

male heirs. However there have been several criticisms that have been raised against these

movements for gender equality in inheritance.54

Barring the criticisms that have been raised

on technicalities such as the differing scopes of the amending act and the original act, the

criticism hinges on the constitutionality of the amendment on the basis of distinctions that

are made between married and unmarried daughters. However these criticisms can be

disregarded on the grounds of practicability. One of the greatest advantages of the Andhra

Pradesh Amendment over the Kerala Act55is that where the former does not prevent

exclusion of daughters by testamentary succession the latter does.

III

This section seeks to deal with when a partition can be said to have taken place and

the different forms that this may take. Partition as a matter of individual volition requires a

definite and unequivocal statement of intention of a member of a joint family to separate

from the family and enjoy his share in severalty. The Supreme Court has pointed out that

there should be an intimation, or indication or representation of such intention and the

form of such manifestation should depend upon the facts and circumstances of each case.56

It may be expressed by the serving of notice,57the institution of a suit58and once the

intention is expressed the same cannot be revoked by withdrawal of the notice or the suit.59

Regarding the institution of a suit by a minor the same has already been dealt with while

dealing with those entitled to claim partition. In the case ofAppoovierv.RamaSubbaAiyan60

!4See B. S&va%ama##a, =Te *&n- S00ess&on (An-%a '%a-es Amen-ment) A0t, 198!G A "ove &n te %on

/&%e0t&on?, ol. 3(2),.ournal o- the (ndian Law (ntitute, 1988, 5. 166.!!e%ala o&nt *&n- am&l# S#stem (Abol&t&on) A0t, 1976.!6Raghavammav. %henchamma , AIR 1964 SC 136. See also ./.". /e%%ett, ="%. st&0e Sbba Rao an- *&n-

+a?, ol. 9,.ournal o- the (ndian Law (ntitute, 1967, 5. !47 at !!4.!7"irija Bai v. Sadahiv, AIR 1916 'C 14.!8Supra note 1 at 6.!9#uttrangammav.Rangamma, AIR 1968 SC 118.6(1866) 11 IA 7!.


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it has been held that the true test of partition being the intention of the partition therefore

the agreement to partition would operate although there may not have been any division by

metes and bounds. In case of an agreement not to partition the same has been held to bind

the parties to the agreement but not their assignees.61

Insofar as the evidentiary

requirements are concerned even if the property has not been physically divided the

agreement operates as proof of legal partition.

This brings us to the discussion on shares allotted and partial partition. Regarding

the shares that are allotted on partition the division is alwaysper stirpeswhich means per

branch and therefore the rules governing the same may be summed up in short as follows:

1.On a partition between a father and his sons both take equally. e.g. where the joint

family consists of the father and two sons then the property is divided into three

parts each taking a part.

2.Where the joint family consists of brothers all the brothers take equally.

3.Each branch may takeper stirpesbut the members of a branch take per capita as

regards each other. E.g. If a brother receives 1/3rdshare and he has two sons then

they take 1/9theach (1/3 divided by 3).

4.The last rule is regarding what is known as successive partition in some cases. Before

understanding the same it is necessary to understand the idea of a partial partition.

PARTIALPARTITION

The partition between coparceners may be partial as regards property as well as

persons making it.62In case of successive partitions the latter is applicable. However

For a clear understanding o the idea both should be gone into.a.Partial as to property: It is open to the members to the members of a joint family to

separate as regards a part of the joint family property and not the whole property. In

that case they continue as a joint family in the absence of an intention to separate.

61Krihendra v.Debendra, (198) 12 C 793.62Lilawati v.#ara Ram, AIR 1977 *' 1.


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b.Partial as to persons: In case there is no general partition between all the members of

the joint family in that case the partition may be partial and may only be operative as

regards the person separating. Thereafter if on a determination of what is essentially

a question of fact it is found that the rest of the family are joint and not reunited then

the same is called a partial partition.63

SUCCESSIVEPARTITION

In case after a partial partition when the remaining coparceners remaining joint over

a period of time decide to effectuate a subsequent partition then there has been a conflict

regarding the shares that devolve upon the people who have remained joint. The Bombay

High Court has followed the maxim ofrebus sic stantibuswhich means that the state of the

property at the time of partition is only taken into account whereas the Madras and the

Mysore High Court has held that the earlier partition should also betaken into account.

A

B C D E

B1 B2 B3 C1 D2

If in the above diagram A dies and thereafter B dies. B2receives his share 1/3rdof 1/4th=

1/12thand leaves the family. The rest of the family continues joint. Then C, D, E and B3all

die. If now B1sues C1and D1for partition then:

a.According to the Bombay School the property is to be divided into three parts where

each part gets 1/3rd.

b.According to the Madras Court B1is entitled to 1/3

rd

1/12

th

= 1/4

th

of the property,taking into account the fact that B2left the family earlier.

This appears therefore to cover most of the areas that are of any dispute within the

mode of partition and what constitutes partition.

63Supra note 1 at 616


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IV

This section proposes to deal with the ideas of reunion and reopening of partition.

Needless to say once a partition is completed it is final and binding as regards the parties

except for several well recognised exceptions which have been enumerated by the Courts.

The religious texts say that if once a partition is completed and then fresh property is

discovered then that property has to be partitioned by the reopening of partition or if

wealth has been concealed by one member of the joint family.64

The Courts have held however that the partition can be reopened if there are several

pressing reasons for the same and these have been singled out as

Fraud, misrepresentation or undue influence: A partition may be reopened where it can be

proved that a coparcener obtained an unfair advantage in the division of property by fraud

misrepresentation or undue influence. The case ofVenkatappav.Gangamma65where proof of

good faith was not forthcoming from the defendants and particularly from the Karta and

the elder brother was in a position to dominate the will of the father during division then

the same partition could be reopened on grounds of it having been vitiated by undue

influence.

Minority: In case the partition was effected at the time of the minority of the son and then

later the son could challenge the same and ask for a reopening of partition if he can show

that the partition was unjust, unfair and prejudicial to his interests.66

These therefore are the limited circumstances in which reopening of partition is

permitted.

Reunion on the other hand involves the completion of partition and the subsequent

mixing together of effects. The Mitakshara has laid down the rule of who is allowed to

64Supra note 8 at 839.6!AIR 1988 e% 133.66Ratnam %hettiar v.Kuppuwami, AIR 1976 SC 1.


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reunite comprehensively and has said that cannot take place with any person indifferently;

but with a father, brother or paternal uncle.67

This has been held as an exclusive enumeration of those entitled to reunite according

to the case ofRam Narain Chaudhuryv.Pan Kuer68

. Insofar as the evidentiary requirements

are concerned the same have a presumption against reunion since initially there is a

presumption against partition and once partition has taken place it is held to be final.

Therefore in order to prove partition it is necessary to show that not only did the parties

already divided lived or traded together but they also did so with the express intention of

thereby forming a joint estate with all its antecedents.69

This is important because the effect of reunion is to return the members of the joint

family to the earlier status where they again from a joint family and the property of those

who had separated is again available to be gained access to, by an heir by the principle of

survivorship.

Therefore this section has dealt with the last but not the least important part of

partition which are the principles of reopening of partition and reunion.

The purpose of this research paper has not been to attempt a comprehensive

examination of the different principles that govern partition. Instead it has been to examine

the different rights and liabilities of different persons that arise out of partition and also an

examination of how these rights have been conditioned by the enacting of different

legislations that have been described as piecemeal by many authors.

67Supra note 2 at 3!2.68(193!) 62 IA 16.69Bhagwan Dayal v.Reoti Devi, AIR 1962 SC 287.


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CONCLUSION

The Hindu undivided family is an unique institution which is peculiar to India70

and

this has significant implications for the law relating to inheritance in India. In this context

the law governing partition of joint family property attains even greater importance. Most

of the law which governs this is still uncodified at least as far as the legislation is concerned.

Although attempts have been made and commendable attempts at that to at least codify a

part of the law but there are numerous problems that plague these laws.

One area however where the law has indeed changed for the better because of the

different legislations that have been enacted is the area of womens rights. Here due to the

different legislation there has been a steady improvement in the nature of the rights that are

guaranteed to the women. Most criticisms of these legislations ignore the fact that these

legislations are simply an attempt to grant the female heirs a greater right to inherit and

therefore what problems these may or may not have shall always be secondary to the

principles upon which these legislations are based.

Partition has numerous implications insofar as the rights of heirs are concerned.

However in some areas these are still not clearly enunciated and often due to differing

interpretations that have been given by the Courts there is still great confusion as regards

the true state of the law. The law surrounding the same seems to be in a state of limbo

where it is still not clear whether we are choosing to adopt the model of British legislation

or to continue with the more fluid and localized development of law that was in prevalence

earlier. In effect we have done neither leading to a stagnation of the fluid law and nonenactment of the necessary legislation.

7R. aanmoan Rao, =o&nt am&l# an- 'o5lat&on '%oblem?, ol. 16(4), .ournal o- the (ndian Law (ntitute,

1974, 5.712 at 713.


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BIBLIOGRAPHY

ARTICLES

1.B. Sivaramayya, The Hindu Succession (Andhra Pradesh Amendment) Act, 1985: A

Move in the Wrong Direction, Vol. 30(2),Journal of the Indian Law Institute, 1988, p.

166.

2../.". /e%%ett, ="%. st&0e Sbba Rao an- *&n- +a?, ol. 9, .ournal o- the (ndianLaw (ntitute, 1967, 5. !47.

3.'. /&an, =An0est%al '%o5e%t# afte% *&n- S00ess&on A0t 19!6 > o&nt am&l# '%o5e%t#o% Se5a%ate '%o5e%t#?, ol. 2!(1), 1983, 5. 1.

4.'.C. a&n, =omens '%o5e%t# R&ts n-e% T%a-&t&onal *&n- +a an- te *&n-S00ess&on A0t, 19!6 > Some $bse%vat&ons?, ol. 4! (3F4), 23, 5. !9.

5.R.L. Butani, Partition of Hindu Undivided Family under Income Tax Act, (2000)

164 CTR (Articles) 63.6.V. Kumar, Basis and Nature of Pious Obligation of Son to Pay Fathers Debt vis--vis

Statutory modifications in Hindu Law, Vo. 36(3),Journal of the Indian Law Institute,

1994, p. 339.

7.V. Ramaswami, Right of Female Members in Partition Suit, (2003) 184 CTR

(Articles) 83.

BOOKS

1. A. 55sam& e-s., )ayne/ *reatie on $indu Law and Uage, 13te-., (Ba%at +a

*ose, e /el&, 1998).

2. :. Sa%a%, A *reatie on $indu Law, R.. Sa%a% e-s., !t e-., (;aste%n +a *ose

Cal0tta , 1924).3. "lla, $indu Law, S. A. /esa& e-s., 18 te-., ol. 1, (Btte%o%ts In-&a, e /el&,

21).4. R. "all&0 e-s., *agore Law Lecture, )itra on Law o- .oint #roperty and #artition , 3%-

e-., (amal +a *ose, Cal0tta, 1991).

!. S. enata%aman,A *reatie on $indu Law, 2n-e-., ($%&ent +onman, e /el&, 198).

WEBSITES

1.www.manupatra.com

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