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PROPERTY PARTITION IN INDIA - LAWS AND TRADITION

Sayaree Ganguly

PROPERTY PARTITION IN INDIA- LAWS AND TRADITION 


Partition of a property means bringing the joint status to an end. On Partition the joint family ceases to be joint, and nuclear families or different joint families come into existence.

Under the Dayabhaga school, when coparceners Partition, it means the division of property is done in accordance with the specific shares of the coparceners since the Dayabhaga coparceners have ascertained and specified shares.

Whereas under the Mitakshara school, Partition of property does not necessarily mean division of property into specific shares, it also means division of status or severance of status or interest. It is because the interests of the Mitakshara coparceners is unspecified. Thus, under the Mitakshara school, partition means two things:


1. Severance of status or interest

2. Actual division of property in accordance with the shares so specified. It is also known as partition by metes and bounds.


DIFFERENT SCHOOLS OF LAW OF PROPERTY AND PARTITION.



“Dayabhaga” is a term derived from a text written by Jimutavahana. On the other hand, “Mitakshara” is a term derived from the name of a commentary written by Vijnaneswara, on the Yajnavalkya Smriti. These two Schools govern the Law of Succession of the Hindu Undivided Family [HUF] under Indian Law. The Dayabhaga School of law is observed only in Bengal and Assam. Whereas Mitakshara School of Law is observed in all the other parts of India. The Mitakshara School of Law is further divided into the following :

1. Benares,

2. Mithila,

3. Maharashtra and

4. Dravida

The differences between the Dayabhaga and the Mitakshara Schools of Law may be categorized under the following: -


JOINT FAMILY – According to the Mitakshara Law School a joint family refers only to the male member of a family and extends to include the following :

1. Son,

2. Grandson and

3. Great-grandson.


They collectively have co-ownership/Coparcenary in the Joint Family. Thus, a son by birth acquires an interest in the ancestral property of the joint family. Under the Dayabhaga School of Law the son has no automatic ownership right by birth but he acquires the same after the demise of his father.

In the Mitakshara School the father’s power over the property is qualified by the equal rights by birth enjoyed by the following:


1. A son,

2. A grandson and

3. A great grand-son


An adult son has the right to demand his partition during his father’s lifetime or during the lifetime of his three immediate ancestors. He has a say in the disposition of the family property and can oppose any unauthorized disposition of ancestral or family property. This is not possible under the Dayabhaga School of Law as the father has centralized and full power over the family property till his death.


COPARCENARY/CO-OWNERSHIP:- Under the Mitakshara School of Law, all the members of such Joint family enjoy coparcenary rights during the lifetime of the father. Under Dayabhaga School of Law when the father is alive the sons do not have any coparcenary rights but acquire it on the death of the father. In the former School of Law, the Coparcener’s share is not defined and cannot be disposed. In the latter the share of each Coparcener is defined and can be disposed.


SUBJECT MATTER OF PARTITION


As a general rule, the entire joint family property is and the separate property of the coparceners is not, subject to partition. A plaintiff seeking partition must prove the existence of a joint family. In the case where existence of a joint family is not disputed, every coparcener is entitled to equal share. However, there may be certain species of joint family property which are by their very nature is not capable of division, then such properties cannot be divided.

In respect of those properties, three methods of adjustments are available:


1. Some of these properties may be enjoyed by coparceners jointly or in turns.

2. Some of these properties may be allotted to the share of coparcener and its value adjusted with the other property allotted to other coparceners.

3. Some of these properties may be sold and the sale proceeds distributed among the coparceners.


However, before the division of property can take place, the Shastrakars have ordained that out of the joint family properties, provisions should be made for certain liabilities of the family. These liabilities fall under the following heads:


1. DEBTS - A provision for the payment of outstanding debts binding on the joint family should be made. No provision is to be made for the individual debts of the

coparceners.

2. MAINTENANCE - There are certain members of the joint family who do not take a share but have a right to be maintained out of the joint family funds. A provision

is to be made for their maintenance.


3. MARRIAGE EXPENSES OF THE DAUGHTERS -  When the coparcenary consists of father and sons, a provision should be made for the marriage expenses of

the daughters of the father. 

4. PERFORMCE OF CERTAIN CEREMONIES AND RITES - If the Partition takes place among the brothers, a provision has to be made for the funeral expenses of

their mother.

 

PERSONS WHO ARE ENTITLED TO A SHARE ON PARTITION.


After the amendment act of 2005, a daughter since would be a coparcener, shall have a right to ask for Partition. As a general rule, both under Mitakshara and the Dayabhaga schools, every coparcener has a right to Partition and every coparcener is entitled to a share on Partition. Apart from the coparceners, no one else has a right to Partition. No female except the daughter has a right to Partition but if Partition takes place, there are certain females who are entitled to a share. These females are: father’s wife, mother and grandmother.


FATHER- The father has not merely a right to partition between himself and his sons but he also has the right to effect partition among the sons inter se. This seems

to be the last survival of father’s absolute powers. The Mitakshara expressly confers this power on the father in respect of not only father’s separate property but also

in respect of joint family property.


SON, GRAND SON AND THE GREAT GRAND SON - Under the Dayabhaga School, there is no coparcenary consisting of the father and his lineal male descendants

and therefore sons, grandsons or great grandsons have got no right to Partition. On the other hand, under the Mitakshara School, son, son’s son, son’s son’s son has

a right to Partition.


MINOR COPARCENERS - Hindu Law makes no distinction between a major coparcener and a minor coparcener in respect of their rights in the joint family property.

As in other matters so in Partition the rights of the minor coparceners are precisely the same as those of the major coparceners. The minor coparceners have also a

right of Partition. A suit for Partition on behalf of the minor by his next friend or guardian.


MODES OF PARTITION  


A Partition can be made by a definite, unambiguous declaration of intention by any coparcener to separate himself from the family. If this is done, it would amount to division of the status of the property, whatever mode be used.


GIVEN BELOW ARE THE VARIOUS MODES USED IN CASE OF THE PARTITION OF A PROPERTY.


PARTITION BY SUIT - A Partition suit (or partition and contribution suit) is a lawsuit that a person files in order to force the division of real property. It also enables that

person to get contribution from the other owners for expenses of the property if others are not paying their fair share.

In a suit for Partition, the initial burden is on the plaintiff to show that the entire property is a joint family property.


PARTITION BY AGREEMENT - A Partition may be affected between the parties by an agreement. An agreement between the coparceners to hold and enjoy property

in defined shares as separate owners operate as a Partition although actual division of properties might not have taken place. In such a case, the interest of each

coparcener is served though the property remains physically undivided. If such Partition is made through a written agreement, registration is necessary.


ORAL PARTITION - There is a long line of cases holding the view that oral Partition can be validly made. Since partition is not conveyance of property, the transfer of

property act doesn’t apply and there is no other law requiring a partition to be evidenced in writing. It is in the nature of mutual renunciation of rights and thus can be

made orally.


UNILATERAL DECLARATION - The communication of intention is necessary, whatever mode of Partition one may use. If a coparcener separates itself by making a

declaration to the other coparceners, this declaration remains valid.


PARTITION BY ARBITRATION - A Partition may be affected by arbitration. If members of joint family enter into an agreement under which they appoint arbitrators for

dividing the joint family property among themselves, the severance of status takes place from the date of the agreement.


PARTITION BY CONDUCT - The severance of status may also take place by conduct. The conduct like a declaration of intention, may be unequivocal, explicit and

definite. From what conduct severance of status may be deduced will vary from case to case. There can be numerous instances of conduct from which inference of

severance can be drawn.


AUTOMATIC SEVERANCE OF STATUS - Conversion of a coparcener to a Non-Hindu religion (i.e. Islam or Christian etc.) operates as an automatic severance of

status of that member from others but it does not amount to severance of status among the other members inter se. From the date of conversion, he ceases to be a

coparcener and therefore loses his right of survivor ship. He is entitled to receive a share in the joint family property as it stood at the date of conversion. Exactly, the

same result follows if a coparcener marries a Non-Hindu under the Special Marriage act, 1954.


REGISTRATION OF PARTITION DEED


It is a well-established proposition of Hindu law and when Partition is affected by a deed of immovable property worth Rs 100 or more, registration is compulsory.  

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