Family Law Project 1.2

NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL
FAMILY LAW-II
VI TRIMESTER
PROJECT ON:
PARTIAL PARTITION
SUBMITTED TO: SUBMITTED BY:

Kavita Singh Gaurav Singh
(Associate Professor) 2018BALLB34
TABLE OF CONTENTS
CERTIFICATE ............................................................................................................................... 3
ACKNOWLEDGEMENT ............................................................................................................... 4
INTRODUCTION TO COPARCENARY ...................................................................................... 5
Incidents of Coparcenership ....................................................................................................... 5
PARTITION: THE CONCEPT ...................................................................................................... 7
MODES OF PARTITION (PARTITION HOW EFFECTED).................................................... 11
2. Partition by notice .............................................................................................................. 11
3. Partition by will.................................................................................................................. 11
4. Conversion to another faith. .............................................................................................. 12
5. Marriage under Special Marriage Act, 1954..................................................................... 12
6. Partition by agreement. ..................................................................................................... 12
7. Partition by arbitration. .................................................................................................... 12
8. Partition by father.............................................................................................................. 13
9. Partition by suits. ............................................................................................................... 13
Modes not exhaustive .................................................................................................................... 13
Effect of Partition. ......................................................................................................................... 14
Burden of proof. ............................................................................................................................ 15
Mode of partition ........................................................................................................................... 15
Partition by conduct ...................................................................................................................... 15
Automatic severance of status ....................................................................................................... 15
Parties to partition. ........................................................................................................................ 15
PARTIAL PARTITION: THE CONCEPT .................................................................................. 16
I. Partial as to property: ........................................................................................................ 16
II. Partial as regards persons: ............................................................................................ 17
PARTIAL PARTITION: THE TAX CONSIDERATION ........................................................... 18
Partial partition prior to Hindu succession law ............................................................................ 19
CONCLUDING REMARKS......................................................................................................... 25
Partial as to coparcener ............................................................................................................. 25
BIBLIOGRAPHY ......................................................................................................................... 27
Books .......................................................................................................................................... 27
Websites ..................................................................................................................................... 27
2
CERTIFICATE
This is to certify that this project on “Partial Partition” has been prepared and
submitted by Gaurav Singh who is currently pursuing B.A. LLB (Hons.) at the
National Law Institute University, Bhopal in fulfilment of Family Law - II
Course. It is also certified that this is this research is original and this research has
not been submitted to any other University, nor published in any journal.
Date: ……………
Signature of the Student……………………...
Signature of the Supervisor……………………
3
ACKNOWLEDGEMENT
I would like to acknowledge and extent my heartfelt gratitude to Kavita Singh for
guiding me throughout the development of this project work into a coherent
whole by providing helpful insights and sharing his brilliant expertise. I would
also like to thank the officials of The Gyan Mandir, NLIU for helping me to find
the appropriate research material for this project work. I am deeply indebted to
my parents, senior and friends for all the moral support and encouragement.
GAURAV SINGH
4
INTRODUCTION TO COPARCENARY
To delve into the concept of partial partition, we must analyse the concept of Hindu
coparcenary. A Hindu Coparcenary is a much narrower body within Hindu Undivided Family.
Generally speaking, it is a body of individuals who acquires interest by birth in the joint family
property. They are the son, grandson and great grandson of the holder of the joint property for
the time being. The coparcenary, therefore, consists of a common male ancestor and his lineal
descendants in the male line within 4 degrees, running from and including such ancestor. No
coparcenary can commence without a common male ancestor though, after his death, it may
consist of collaterals such as brothers, uncles, nephews etc. The essence of coparcenary is
community of interest and unity of possession.
Incidents of Coparcenership:
Under Hindu law, every coparcenary has certain fundamental features. They are:
1. The lineal male descendants of a person, up to third generation (excluding him),

acquires interest on the coparcenary property held by him.
2. Coparcenary is necessarily a creation of law and it can never be created by agreement
or otherwise.
3. In any coparcenary system whenever a coparcener is born acquires an interest by virtue
of his birth.
4. A coparcenary system is a unique example of unity of possession and community of
interest. Till a partition takes place no coparcener can have absolute ownership on the
coparcenary property and hence alienation of such property without required
permission and purpose is invalid.
5. The interest in any coparcenary property is always fluctuating as the amount of interest
varies with the birth and death of coparceners.
6. A coparcenary property involves collective enjoyment only. There is no concept of
individual enjoyment unless there is a partition to the effect.
7. Every coparcener has a right to be maintained including a right of marriage expenses
being defrayed out of joint family funds.
8. Every coparcener is bound by the alienation made by the Karta for legal necessity or
benefit of estate and by the legitimate acts of management of the Karta.
9. Every coparcener has a right to object and challenge alienations made without his
consent or made without legal necessity.
5
10. In a Mitakshara coparcenary any major coparcener can ask for partition any time. Such
right for the asking for partition is an inherent right by virtue of his birth in that very
coparcenary property and such right cannot be taken away by any contract in contrary.
11. Every coparcener has a right of survivorship. 1
12. If a property is a coparcenary property then alienation of interest is of any kind with
respect to that property is null and void since every coparcener gets a birth right on that
property hence without giving their due interests.
Difference between a Co-parcener and a Member of HUF:
A HUF, as such, can consist of a very large number of members including female members as
well as distant blood relatives in the male line. However, out of this, coparceners are only those
males who are within 4 degrees in lineal descendent from the common male ancestor. The
relevance of concept of coparcenary is that only coparceners can ask for partition. The other
male family members; i.e., other than coparceners in a HUF, have no direct claim over HUF
property, but can claim only through the coparceners.2
1
(Survivorship now has been abrogated by Amendment Act of 2005).
2
Dr.Paras Diwan, Family Law, Allahabad Law Agency: Faridabad, 2011, p. 234
6
PARTITION: THE CONCEPT

The Mitakshara says that “Partition is the adjustment of diverse rights regarding the whole, by
distributing them or particular portions of the aggregate.” Thus, according to Mitakshara Law
partition has two distinct meanings.
In the first place it means “the adjustment into specific shares the diverse rights of different
members according to the whole of family property”.
In the second place, it means “the severance of the joint status with the legal consequences
resulting therefrom”.3
Partition under Mitakshara law may be defined as, “the crystallization of the fluctuating interest
of a coparcenary into a specific share in the joint-family estate”. It, therefore, follows that each
co-owner is deemed to be the owner of the whole, in the same manner as other co-owners are
also owners of the whole, the ownership of the one without excluding the co-ownership of the
others. This doctrine is known as the doctrine of ownership in the whole of estate.
Partition is a matter of individual volition, and reduces the members to the position of tenant-
incommon requiring only a definite, unequivocal intention on the part of member to separate
and enjoy his share in absolute severalty. As soon the shares of the coparceners are defined,
the partition is deemed effected. It is not necessary that there should be an actual division of
the property by metes and bounds. Once the shares are defined, there is severance of the joint
status. The parties may then make a physical division of the property or they may decide to live
together and enjoy the property in common. But the property ceases to be joint immediately
the shares are defined, and henceforth the parties hold as tenants-in-common.
It was held by the Supreme Court in Sarin v. Ajit Kumar 4, that having regard to the basic
character of the joint Hindu family property, each coparcener has an antecedent title to the said
property, though its extent is not determined until partition takes place. That being so, partition
really means that whereas initially all the coparceners had subsisting title to the totality of the
property of the family jointly, that title is transformed by partition into separate titles of the
individual coparceners in respect of several items of properties allotted to them respectively.
As this is the true nature of partition, the contention that partition of an undivided Hindu family
necessarily means transfer of the property to the individual coparceners, cannot be accepted.
In the case of a property’ which was enjoyed by the members of a coparcenary and which they
3
(Katyayana Cited in Mitak Shara-I, 27)
4
AIR 1966 SC 435
7
divided among themselves in a partition there is no transfer of the property from coparcener as
a unit to individual coparceners who divide it. It is only a case of converting what had been
enjoyed by them with separate rights. There is no element of transfer in such a division.
The Supreme Court in Kalyani v. Narayanan5 has laid down in detail the essential ingredients
of partition. It says that the first requirement of partition is that any of the male members of the
joint Hindu family should express his clear and definite will about partition. The medium of
expressing the desire to this effect may be according to the circumstances. The desire of this
effect must be known to all other members of joint family who are likely to be affected by it.
This could be done by notice or by filing a suit. Partition is the severance of the joint status.
Every coparcener has the right of claiming partition. In such circumstances a clear declaration
to this effect would be sufficient. By partition the joint status comes to an end resulting in
putting the coparcenary to an end.
Partition and Family Arrangement—Distinguished. —A partition must be distinguished from

a family arrangement, setting the mode of enjoyment of the family property, as such, an
arrangement does not put an end to the joint status. It is possible for members of a joint family
to divide property among themselves for the purposes of convenient enjoyment or management
without the intention of making a partition.
A family settlement can be made orally also and the court will not ignore such oral settlement
on the ground that it is not permissible in law. A family settlement among Hindus is a well-
known and recognized mode of division of joint-family property.
The following may be mentioned as the points of difference between the two
I. A family arrangement is concluded with the object of settling a ‘bona fide dispute
arising out of conflicting claims to property. Partition is not necessarily a compromise
of conflicting claims.
II. A widow or a limited owner or a manager can enter into a family arrangement with
persons who are not coparceners: whereas coparceners alone can affect partition.
III. Family arrangement can never be a unilateral act. Partition may be affected by a
unilateral declaration.
Agreement not to Partition. —Agreement between coparceners not to partition coparcenary

property does not bind even the parties thereto, according to the Bombay High Court, any party
5
I. AIR 1980 SC 1173
8
may, notwithstanding the agreement, sue the other parties for partition. The High Court of
Calcutta, Allahabad and Nagpur have held that such an agreement does bind the actual parties
though it cannot bind their assigns or the persons to whom they transfer their shares,’ unless
there is a stipulation not to assign.
The Partition as a subject under the following heads:
a) subject-matter of partition, i.e., the property to be divided;

b) persons who have a right to partition, and who are entitled to a share on partition;
c) how partition is affected and mode of partition;
d) rules relating to the allotment of shares;
e) reopening of partition; and reunion.
Subject-matter of Partition: - As a general rule, the entire joint family property is, and the
separate property of coparceners is not, subject of partition. A plaintiff seeking partition must
prove the existence of joint family property. But where existence of joint family is not disputed,
every coparcener is entitled to equal share. However, some properties may be held jointly by
two or more coparceners, such as when there exists a coparcenary within a coparcenary’s’, and
if a general partition takes place, these properties may also be divided among such coparceners,
though other coparceners might claim a share in them. If the joint family is in possession of
property held by it as a permanent lease, such property is also available for partition even
though lease may be liable to cancellation in certain circumstances. The impartibly estates
which constitute joint family property are not liable to partition.
Properties which are not capable of division by their very nature: - Although the general rule
is that the entire joint family property is available for partition, yet there may be certain species
of joint family property which are, by their very nature, incapable of division, then such
properties cannot be divided. Manu ordained: “A dress, a vehicle, ornaments, cooked food,
water and female slaves, property destined for pious use and sacrifices, and a pasture ground,
they declare to be indivisible.”6
In respect of those properties, three methods of adjustment are available.
6
Manu Cha. XI v. 43
9
1. Some of these properties may be enjoyed by coparceners jointly, or by turns, (under

this head will fall properties like wells and bridges, temples and idols),
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, or
3. Some of these properties may be sold and sale proceeds distributed among the
coparceners. We may discuss the subject with particular reference to:
a) the family temples and idols, and
b) the dwelling house, and
c) the staircases and wells.
Dwelling house. —The Smritikars were of the view that the dwelling house should not be
partitioned. It was understandable in a predominantly agricultural society. It is understandable
even in our modern times when the dwelling house is too small. But the modern law does not
consider the rule as sacrosanct.’ Ordinarily, in a partition, the court will, if possible, try to affect
an arrangement which will leave the dwelling house entirely in the hands of one or more
coparceners. If no arrangement which is agreeable to the parties, or which is equitable can be
possibly made, the dwelling house may be sold and sale proceeds divided among the
coparceners. This alternative is available with respect to any property, the division of which
cannot be made equitably and coparceners fail to arrive at a satisfactory arrangement among
themselves. This has been facilitated by the Partition Act, 1893.
Family shrines, temples and idols. —The family shrines, temples and idols constitute such
species of joint family property which can neither be divided nor sold. The same may apply to
certain sentimental and rare items of property which the family cherishes and which may not
be easily subject to any valuation7 , The courts have adopted the following courses in respect
of family shrines, temples and idols
a) The possession of idols or temples or shrines may be given to the senior coparcener (or
to a junior member, if he happens to be the most religious and suitable among the others,
with the liberty to other coparceners to have an access to them for the purpose of
worship at all reasonable times.
b) In case the family consists of pujaris who make a living out of the offerings, the court
may settle a scheme under which each coparcener worships and takes the offerings by
7
Pedasubhajya v Akanamma (AIR 1958 SC 1042)
10
turns. The court may also devise a scheme under which it may entrust the worship to
one of the coparceners with the direction that offering may periodically be distributed
among the coparceners in accordance with their shares.
Staircases, wells, etc.—Staircases, courtyards, wells, tanks, pastures, roads, right of way and
the like things are species of property which are, by their nature, incapable of division or
valuation. In respect of them, an arrangement has to be devised so that they remain in the
common use of all coparceners. Yajmans cannot be said to be property much less movable
property, hence it cannot be partitioned.
MODES OF PARTITION (PARTITION HOW EFFECTED)

1. Partition by mere declaration to separate. —Partition under the Mitakshara Law is a
severance of joint status and as such it is a matter of individual volition. All that is
necessary to constitute partition is a definite and unequivocal indication of his
‘intention’ by a member of joint-family to separate himself from the joint family and
enjoy his share in severalty. A division in status takes place when he expresses his
intention to become separate unequivocally and unambiguously and the tiling of a suit
for partition is a clear expression of such an intention.
The Supreme Court laid down in, Puitorangamma v. Rangamma 8, that it is now well-settled
doctrine of Hindu law that a member of joint family can bring about his separation in status
by a definite, unequivocal and unilateral declaration of his intention to separate himself
from the family and enjoy his share in severalty. It is not necessary that there be an
agreement between all the coparceners for the disruption of the joint status. It is immaterial
whether the other coparceners in such a case give their assent to the separation or not .
2. Partition by notice. —A severance of joint status may be affected by serving a notice

by a coparcener on the other coparceners, including his intention to separate and enjoy
the property in severalty or demanding partition of the property. The notice may be
subsequently withdrawn with the consent of the other coparceners and if it is
withdrawn, there will be no partition.
3. Partition by will. —Partition may be affected by a coparcener by making a will
containing a clear and unequivocal intimation to his coparceners of his desire to sever
8
AIR 1968 SC 1018
11
himself from the joint family or containing an assertion of his right to separate. But
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 affect severance of status. The father in joint family cannot
impose any family settlement by saying that he is exercising the right of partition.
Although he does possess the right. But a will to the above effect could be effective
only if all other adult members have given their consent to it.
4. Conversion to another faith. —Conversion of a coparcener to any other religion
operates as partition of the joint status as between him and other members of the family.
Such a convert 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 the absence of subsequent act or transactions pointing
to a re-union.
5. Marriage under Special Marriage Act, 1954. —Marriage of a Hindu under the
Special Marriage Act causes severance between him and the other members of the
family.
6. Partition by agreement. —The true test of partition being the intention of the member
of the joint family to become separate owners, it follows that an agreement between the
members of a joint family to hold and enjoy the property in certain defined shares as
separate owner operates as partition, although the property itself has not been actually
divided by metes and bounds. The two ideas—the severance of joint status and a
defector division of property must be kept distinct. As partition under the Mitakshara
Law is affected on the severance of joint status, the allotment of shares may be done
later. Even it may be by an unregistered partition deed which may be looked into
established severance of status, though it cannot be looked into for terms of partition.
Once the members of the joint family or heads of the 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.
7. Partition by arbitration. —An agreement between the members of a 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 an award has been made,
the question whether it divided all the members from one another or only some of them
12
from the others is to be determined by a construction of the award, and the subsequent
conduct of parties is irrelevant. Though a division by the arbitrators of only part of the
joint property under their award is open to question on the ground that the award is
uncertain in its terms and incomplete, yet it is competent to the parties to agree to the
division being made by the arbitrators’ step and that each should be final in itself.
8. Partition by father. —The father may also cause the severance of the sons without
their consent. It is remnant of the ancient doctrine of ‘Patria Potestas’ (Paternal power).
The topic will be dealt with in detail under separate heading. Hindu father under
Mitakshara law can demand for partition along with his sons even in presence of the
Karta of the family, and thus can bind the Sons by partition. By this he can get the
shares of his Sons fixed and also get them separated. But he does not have the right to
get the Joint family property partitioned through the will. Although he could do the
same with their consent.
9. Partition by suits. —The institution of a suit for partition ipso facto effects severance
of the joint-family status and as such the mere institution of such a suit effects
immediate severance of joint status. A decree may be necessary for working out the
resultant severance and for allotting definite shares but the status of the 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 a 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.
Their Lordships of the Supreme Court held in Girjanandini v. Brijendra 9 , that partition may
ordinarily be affected by the institution of suit. In case of suit for partition in joint status,
father’s consent to the suit for partition is no longer necessary. Thus, the son is fully eligible to
file a suit for partition even during the life time of his father.
Modes not exhaustive. —The nine modes of partition given above are not exhaustive. There
may be other circumstances as well which if indicated unequivocal intention for partition will
be admissible. Partition is a severance of the joint staus. It consists in defining the shares of the
coparceners. Until partition a coparcener cannot say that he has definite share, e.g. one— half
or one-third. Partition is a matter of individual volition and all that is necessary to constitute
partition is a definite and unequivocal indication of his intention by a member to separate
9
AIR 1967 SC 1124
13
himself from the family and enjoy the share in severalty. It is immaterial in such a case whether
the other members assent or not. The intention to separate may be evidenced in different ways
either by express declaration or by conduct. Thus, it may be expressed by institution of a suit
for partition o by serving a notice on the coparceners.
The institution of a suit is a sufficient unequivocal indication of the intention of the plaintiff
coparcener to separate and there consequently is a severance of the joint status from the date
when it is instituted. A decree may, however, be necessary for working out the result of the
severance in status which is brought about by the assertion of his right to separate whether he
obtains a consequential judgment or not. Partition may ordinarily be affected by institution of
a suit, or by submitting the dispute as to division of the properties to arbitrators, or by a demand
for a share in the properties or by conduct which evinces an intention to sever from the family:
it may also be affected by agreement to divide the property. But in each case the conduct must
evince unequivocally the intention to sever joint-family status. Merely because one member of
a family severs his relation, there is no presumption that there is severance between the other
members, the question whether there is severance between the other members is one of fact to
be determined on a review of all the attendant circumstances. Where there is severance between
different branches of a joint-family, severance between the members of the branches inter se
may not in absence of an expression of unequivocal intention be inferred. It is the intention to
sever followed by conduct which seeks to effectuate the intention that partition results, mere
specification of shares without intention to sever does not result in partition.
Effect of Partition. —On partition of joint family, the joint status comes to an end and also
the coparcenary is put to an end. The share of every branch of coparceners is also determined.
a) Where the partition is general, the undivided family as a unit comes to an end; where it
is partial, the members of the family who severed themselves from the unit lose the
joint status which they had previously enjoyed as members of that particular group.
b) Where partition takes place by conversion, severance is affected between the convert
on one hand and the rest of the family on the other; similarly, where partition takes
place by marriage (under the Civil Marriage Act); severance is affected between the
persons marrying on the one hand and the rest of the family on the other.
c) Partition automatically alters the character of the property of the family, the
coparcenary of the family, the particular joint tenancy known to Hindu Law—gives
place to tenancy-incommon of the dividing or separating members.
14
d) But partition does not annul the family or other relation and does not disturb the rights
incidental to such relation, such as, the right to inherit.
Burden of proof. —The general principle underlying the burden of proof is that a Hindu family
is presumed to be joint unless the contrary is proved but where it is admitted that one of the
coparceners did separate himself from the other members of the joint family and had his share
in the joint property partitioned off for him.
Mode 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 status, whatever mode may be used, partition may be affected by institution of a
suit, by submitting the dispute as to division of the properties to arbitration, by a demand for a
share in the properties, or by conduct which evinces an intention to sever the joint family; it
may also be affected by agreement to divide the property. But separate enjoyment for the sake
of convenience is not a partition. Thus, deepening a well, laying underground pipes, getting
loan on security of portion in one’s possession are not adequate proof of partition.
Partition by conduct. —The severance of status may also take place by conduct. The conduct,
like a declaration of intention, must be unequivocal, explicit and definite. From what conduct
severance of status may he deduced, will vary from case to case. There can be numerous
circumstances from which such an inference can be drawn. For instance, separation of food,
worship, dwelling, separate enjoyment of the property, separate income and expenditure,
separate business transaction, and the like are instances of conduct from which inference of
severance may be drawn.
Automatic severance of status. —Conversion of a coparcener to a: non-Hindu religion (i.e.,

Islam, Christianity, etc.) operates as an automatic 4 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
survivorship. 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.
Parties to partition. —In a suit for partition, the heads of the branches are essential parties.
All members of the branch need not be made parties to the suit. Registration of partition deed.
—It is a well-established proposition of Hindu law and when partition is affected by a deed of
15
immovable property worth Rs. 100 or more, registration is compulsory but it can be used to
show factum of partition.
PARTIAL PARTITION: THE CONCEPT

Ordinarily, if a member sues his coparceners for partition, the suit must comprise all the joint
property which is then capable of partition. The general rule undoubtedly is that there cannot
be a partial partition. At any rate, a coparcener cannot, by suit, enforce a partial partition.
Partial partition by private arrangement is, however, allowed.
A suit for partition should ordinarily embrace all the joint family properties. However, as laid
down in Hari v. Ganpatrao10, this general rule is subject to certain qualifications.
When a suit for partition is by a coparcener, it need not be for the whole property
1. Where different portions of such property are situated in and out of India (Ramacharya
v. Anantcharya11, or
2. Where a portion of the property is not available for actual partition, as for instance, if it
is in a mortgagee’s possession, or if it is imam land requiring Government permission
to give jurisdiction to the Court; or
3. Where property is held in partnership by the joint family along with strangers, who have
no interest in the family partition among the members, and who could not, therefore, be
made parties in the family partition (Purshottam v. Atmram 12, or
4. Where property was excluded through mistake, accident or fraud at the time of the
previous partition.
In such cases, a suit for partial partition, i.e., partition of such property as is available, will lie.
A partition effected between coparceners by mutual agreement may be partial, either in respect
of the property or in respect of the persons making it.
I. Partial as to property:
It is open to the members of a joint family to make a division and severance of interest in
respect of a part of the joint property, while retaining their status as a joint family, and holding
10
(7 Bom. 272)
11
(7 Bom. 272)
12
(23 Bom. 597)
16
the rest as the properties of a joint and undivided family. But, once it is shown that the parties
intended to sever themselves, the joint status comes to an end, and even the property which
remains undivided would lose its joint nature, and the members of the family would hold it as
tenants-incommon, unless there is a special agreement to hold it as joint tenants.
II. Partial as regards persons:

Just as a partition may be partial as regards the property, so it may be partial as regards the
persons separating. The rules of presumption regarding partial partition or otherwise, as laid
down in several important decisions of the Privy Council and the Supreme Court may be
summed up as follows:
i. The general principle is that every Hindu family is presumed to be joint, unless the
contrary is proved.
ii. But once it is proved that one member of the joint family has separated from the others,
there is no presumption that the rest continue to live jointly. The Privy Council has
observed in Balabux v. Rukmabai13. “There is no presumption when one coparcener
separates from the others, that the latter remain united. An agreement amongst the
remaining members of the joint family to remain united or to re-unite must be proved
like any other fact.”
But no express agreement is necessary for this purpose. The intention to remain joint may be
inferred from their conduct indicating such an intention.
The Supreme Court also has approved these principles in Bhagabati Prasad v. Dulhin
Rameshwari. 14
iii. When there has been a separation between members of a joint family, there is no
presumption that there was a separation between one of the members and his
descendant. (Haribaksh v. Babulal).15
iv. A Hindu father may be separated from his sons, and the sons may remain joint, or he
may be separated from his sons by one wife, and remain joint with his sons by another
wife.
13
(1903) 30 I.A. 130
14
[(1951) S.C.R. 603]
15
(1924) 51 I.A. 153)
17
v. In a suit for partition, the decree for the partition is the evidence to show whether the
separation was only a separation of the plaintiff from his coparceners or was a
separation of all the members of the joint family from each other. 16
vi. A renunciation, by a member, of his interest in the family property does not lead to the
presumption that the other members are separated.
Though a partition may be partial by mutual agreement of the parties, no coparceners can
enforce a partial partition against the other coparceners.
In K.T. Prasad v. C.I.T.17 the Supreme Court reiterated following basic principles of partition
and partial partition:
i. When there is a partition, it is presumed that it was a total partition, both as to parties
and property.
ii. When there is a partition between brothers, there is no presumption that there has been
a partition between one of them and his descendants.
iii. However, it is open to any person who alleges that a partition has been partial (either
as to persons and as to property), to establish that fact.
iv. Hindu law does not require that, in every case of partition, the property must be
partitioned by metes and bounds. A declaration of intention by a coparcener to become
divided brings about a severance of status, and it is open to the parties to thenceforth
enjoy their respective shares of the property as tenants-in-common.
PARTIAL PARTITION: THE TAX CONSIDERATION

Every person in a Hindu Joint Family must get deed of partition executed on stamp paper and
have it registered
Continuing the discussion on partitions in Hindu Joint Families (governed by the Mitakshara
School of Hindu Law), an oral partition, duly confirmed by a memorandum executed
subsequently, is valid in law and is admissible in evidence. Such a memorandum can have a
nominal stamp duty, as it only confirms an earlier oral partition and does not by itself create a
partition.
16
(Palani Ammal v. Muthuven Katacharla, (1925) 52 I.A. 83)
17
[(1982) 1 S.C.C. 447)]
18
To provide more authenticity and credibility, such a memorandum can be duly attested by a
Notary Public. The above mode of partition was utilised mostly because it was simple and easy
to understand and carry out. However, such a partition does not get the immense legal benefits
and consequences available under a deed of partition duly stamped, executed and registered
before the appropriate registration authorities. In the case of a registered deed of partition, the
same is duly entered into and copied in Book-I maintained by the registration authorities and
it will find a place and mention in any of the encumbrance certificates issued in respect of the
immovable properties covered in the deed of partition. When there are a number of immovable
properties situated in different districts or States and they are covered in the deed of partition,
it is essential to get a certified copy of such a deed of partition duly registered before the other
registration authorities also in whose jurisdictions the respective immovable properties subject
to partitions are located and situated.
In Karnataka, the stamp duty payable on such a deed of partition of a Hindu Joint Family is
Rs.1,000 per share of the members of the joint family and the registration fee is Rs.500 per
share. If stamp duty and registration fee are nominal, it is in the best interests of every person
in the Hindu Joint Family to get such a deed of partition duly executed on a stamp paper (of
the aforesaid nominal value) and have the same duly registered before the competent
registering authority.
Partial partition prior to Hindu succession law

There was a partial partition in a Hindu Undivided Family before December 31, 1978. The
partial partition was recognised under the Income-tax Act.
At the time of partial partition, the HUF (normally identified as bigger/major HUF) consisted
of Karta, wife, a son (S1) and a daughter (D1). In respect of the share received on partial
partition by the Karta, he is assessed in the status of a Hindu Undivided Family (normally
identified as small/minor HUF) consisting of Karta and wife. Please note that no property or
amount was given to daughter (D1) at the time of partial partition.
After partial partition, another son (S2) and another daughter (D2) were born. Please advise on
the rights of daughters (D1 and D2) in both the HUFs (bigger/major and small/minor) after the
recent amendment of the Hindu Succession Act. The amendment to the Hindu Succession Act
does not have any effect on partition and partial partition prior to the date on which the present
amendment came into effect. The creation of a larger HUF and a minor HUF as a result of
partial partition is recognised under the Hindu Law and recognised for income-tax purpose
19
only if it had occurred before December 31, 1978. The income-tax law will have to follow the
effect of the amended law without any change in the status of both larger and smaller families
in the facts of the reader's case. There is addition of a son and a daughter, so that both children
born after the partial partition will automatically become members of both the larger HUF and
the father's smaller HUF. In the other case, the smaller HUF, which had initially only a Karta
and his wife on partition with the other coparceners at the relevant time, will have the son or
daughter subsequently born after the partial partition, since both of them will be acquiring
rights of a coparcener over the assets of the smaller HUF. They will also be members of the
larger HUF having equal right with their brother and sister born before the partial partition .
The son, who had already got partially partitioned, will not have coparcener's right in the
smaller joint family, but the daughter prior to partition continues as a member of the smaller
and the larger family as she could not have left the family on partial partition, since she had
only maintenance right over the joint family property at the relevant time. The daughter and
son born later will therefore have a right to partition and equal share in both the smaller family
and the larger joint family.
A partition in a Hindu Joint Family can be total i.e., dealing with every member and co-
parcener of the family and also in respect of each and every property of the Hindu Joint
Family. 18
A partial partition can take place in respect of some of the properties of the family, which can
be divided among the members of the family and the other properties will be left intact with
the Hindu Joint Family itself. In such a case, the Hindu Joint Family continues to exist in
respect of the remaining properties of the family. A partial partition applicable to only certain
members of the family can take place in the following manner:
Any member or co-parcener or a group of members or co-parceners in their individual

capacities can release themselves from the Hindu Joint Family by executing deeds of release
by which such released persons get a specific property or properties or a specific amount of
money from the Joint Family.
The released members cease to be members of the Hindu Joint Family and the Hindu Joint
Family itself will continue to exist in relation to the other members of the family. In this
context, it is pertinent to note that a Hindu Joint Family, termed and referred to as Hindu
18
CIT v. G.D. Mukim, 118 ITR 930 (P & H).
20
Undivided Family (HUF), is an independent assessable entity in respect of income tax and
other direct tax laws, apart from the members constituting the Hindu Joint Family. When such
a recognition is made, the Income Tax Department should be informed of the partitions and
releases in the Hindu Joint Family and the events recognised/ approved under the direct tax
laws.
Certain provisions of the Income Tax Act, 1961, have to be taken note of in respect of tax
matters of a Hindu Joint Family and the partitions which have taken place. In respect of
computation of capital gains, Section 49 of the Income Tax Act, 1961, deals with the mode of
ascertaining the cost with reference to properties acquired through partition in the joint family.
Distribution of properties including immovable properties in partial or total partition of a Hindu

Joint Family will not be regarded as a transfer for the purposes of any tax incidence on capital
gains under Section 49(1)(i) of the Income Tax Act, 1961.
Section 171 deals with the legal necessity of passing a specific order by the Assessing Officer
in relation to any claim being made as to partition in a Hindu Joint Family by the family
members. This matter will be discussed in the subsequent issues.
The legal effects and consequences of a “Notional Partition” arising on the death of a
coparcener in a Hindu Joint Family as covered by Section 6 of the Hindu Succession Act, 1956,
and as per the provisions of the Hindu Succession (Amendment) Act, 2005, will also be
discussed in the subsequent issues.
The Constitution Bench of the Supreme Court, has decided the constitutional validity of
Section 171(9) of the Income-tax Act which derecognises the concept of partial partition of
Hindu undivided family (HUF) which has taken place after December 31, 1978 in Union of
India vs MV Valliappan19.
In its judgment, the Constitution Bench stated that for the purposes of I-T Act partial partitions
taking place on or after January 1, 1979 are not to be recognised. If an enquiry as contemplated
under sub-Section (2) is held and completed after cut-off date it would be treated as null and
void. The facts of the case were as follows: A petitioner was Karta, of HUF which was partner
in a partnership firm in which its funds were invested. A partial partition of certain assets of
belonging to HUF, by deed of partition was affected on April 13, 1979.
19
1999 AIR SCW 2689
21
The income-tax officer, on an application made under Section 171(2) of I-T Act by Karta of
HUF, passed an order dated December 28, 1979 recognising partial partition. Thereafter, for
the assessment year 1980-81 a return was submitted on behalf of HUF on April 12, 1980 which
did not include the income from properties which was the subject matter of partial partition.
The income from such properties were declared by the respective individuals in their respective
returns. In accordance with the said return assessment was finalised. Similarly, wealth tax
returns were also filed for assessment year 1980-81 and accepted by income-tax officer. The
income-tax officer on March 4, 1983 send a notice under Section 148 of I-T Act stating that
income of the petitioner had escaped assessment and the income-tax officer proposed to reopen
the completed assessment for the year 1980-81. In spite of the objection by assesses that order
of partial partition not being revoked or cancelled continue to be effective was rejected by
officer and a fresh assessment was made for HUF including the income relating to properties
which were partially partitioned. The reassessment order was challenged by a writ petition in
the high court.
The high court summarised its conclusions as follows: (1) Section 171 (9) of I-T Act cannot be
sustained on the ground that it is a measure to counteract the tendency of tax avoidance and it
suffers from vice of legislative incompetence and it is also void on the ground of violation of
Article 14 of the Constitution of India. (ii) Section 171(9) entrenches upon the charging
provisions in Section 4 of I-T Act and thus enlarges the scope of Sections 4 & 5 of I-T Act (iii)
The effect of Section 171(9) of the I-T Act 1961 is that it virtually negatives the right of
partition under personal law only in certain cases of partition after December 31, 1978 and
there is no valid basis of justification for treating HUFs separately in a hostile manner with
reference to December 31, 1978, the choice of the date being clearly arbitrary20.
The Supreme Court considered the contentions raised by appellant (revenue) and the argument
of respondent that the high court decision declaring sub-Section (9) of Section 171 to be invalid
and does not call for interference of the Supreme Court examined in detail Section 171 of the
Act.
It stated that for the purposes of I-T Act partial partition taking place on or after January 1,
1979 are not to be recognised. The language of the section is very clear and even if enquiry as
contemplated under sub-Section (2) is held and completed in respect of partial partition after
20
CIT v. Rameshwarlal Sanwarmal 82 ITR 628 (SC).
22
cut-off date it would be treated as null and void. Thus, such a HUF is to be assessed under the
Act as if no partial partition has taken place.
Supreme Court observed that the Parliament has the authority to delete or amend any provision
of the I-T Act and it cannot be said that it is beyond legislative competence. The relevant item
82 of list I of the Seventh Schedule to the constitution empowers the parliament to enact the
legislation for imposition of taxes on income other than agricultural in come further the concept
of partial partition of HUF was not recognised underI-T Act 1922 and was recognised only
under the I-T Act 1961. All that is done by the amendment is to restore the status quo ante that
prevailed prior to 1961 Act. As per the objects and reasons of the amendment act, it was
introduced because multiple HUFs were created by effecting partial partitions as regards
persons constituting the joint family or as regards the properties belonging to the joint family
or both, which resulted in tax reductions or evasion and with a view to curbing this creating of
multiple HUFs by making partial partitions, it was proposed to derecognise partial partitions
of HUF effected after December 31, 1978 for tax purposes21.
By having multiple partial partitions, it is possible to manipulate the affairs of the HUF for
reduction of tax liability and to prevent such manipulation sub-Section (9) is added. It is for
legislature to decide whether the recognition of partial partition introduced in the I-T Act
should continue or not. The Supreme Court opined that cut-off date of December31, 1978
cannot be said to be arbitrary. It is settled that the choice of a date as a basis for classification
cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice
unless it is shown to be capricious or whimsical in the circumstances.
The Supreme Court rejected the argument that addition of new section entrenches upon the
charging Section 4&5 of the I-T Act and enlarges the scope of Sections 4&5 of the act. Even
with regard to total partition, it was required to satisfy all the conditions prescribed in Section
25A and an order was required to be passed for that purpose under Section 25A (1). If the claim
of partition was disallowed after inquiry the HUF was liable to be assessed as such. After the
new act partial partition was not recognised unless it satisfied the conditions laid down in the
explanation22.
Therefore, the contention that sub Section (9) entrenches upon charging provision in Sections
485 of the Act is without basis. Supreme Court noted that the legislature under Section 171 of
21
Surjit Lal Chhabda v. CIT, 101 ITR 776 (SC)
22
C. Krishna Prasad v. CIT 97 ITR 493 (SC)
23
the I-T Act has assigned special meaning to the word "Partition" under the explanation which
is different from general principles of Hindu law and it contains the deemed provisions under
which partition of the property of the HUF could be accepted. Relying on above decision
Supreme Court observed "It is for legislatures to recognise or not to recognise partial partition
of HUF property for the purpose of levy and collection of tax.
Further, consideration of hardship is totally irrelevant for deciding the legislative competence.
It is settled law that hardship or equity has no role to play in determining eligibility to tax and
it is for legislature to determine it. Supreme Court allowed the appeals and judgements of high
court holding Section 171(9) of I-T Act 1961 and Section 20-A of the Wealth Tax Act 1957 as
unconstitutional were quashed and set aside the writ petitions filed by respondents in Madras
and Karnataka high court were dismissed 23.
In the case of Apoorva Shantilal Shah (HUF)/Seth Gopal Dass (HUF) Vs. Commissioner of
Income-tax24, the Hon'ble Supreme Court has recently held that the right of the father to bring
about the disruption of the joint family properties in exercise of his superior right as father or
of his right as patria potestas is recognised in ancient Hindu Law; it is also well settled by
judicial decisions that partial partition of a HUF qua some properties or qua some members is
permissible and valid in law. The Supreme Court also held that, if the father, in exercise of his
superior right or his right as partial partition can bring about a complete disruption of joint
family properties of HUF consisting of himself and his minor sons even against the wishes of
the minors and if partial partition is permissible with the consent of the sons when they have
all become majors, there is no reason to limit the power or authority of the father to affect the
partition only if it is total. Thus, it has consequently been held by the Hon'ble Supreme Court
that partial partition of properties brought about by the father between himself and his minor
sons cannot be said to be invalid under the Hindu law and must be held to be valid and binding.
The Supreme Court, however, added that such a partition whether effected in exercise of his
superior right as father or his right as patria potestas is subject to the right of the sons to
challenge the partition by way of appropriate proceedings if the partition is not fair and just. 25
The said judgement has settled one of the judicial controversies that was pending before the
Supreme Court. The ratio of this judgement will, however, be applicable to assessments up to
23
Prem Kumar v. CIT, 121 ITR 347 (All.)
24
Taxman, Part 1, Vol. 13, April, 1983, page 1
25
CIT v. Veerapa Chettiar, 76 ITR 467(SC)
24
the assessment year 1979-80. since the amendment made by the Finance (No. 2) Act, 1980, has
statutorily de-recognised, for the purposes of the Income-tax Act. partial partition effected after
31st December. 1978. This amendment has been made effective from the assessment year
1980- 81 and onwards.26
CONCLUDING REMARKS
Partial partition: - There is a presumption that every partition is a total partition. The burden of
proof that the partition is partial,’ or that there has been a prior partition is on the party who
asserts that it is so. On partial partition, the family does not cease to be joint family and the
joint business continues to be joint. It is open for parties to make partial partition. A partition
is a question of fact. A partial partition may be
(i) Partial as to property, or

(ii) (ii) Partial as to persons,
Partial as to property, —The Privy Council in Romalinga v. Narayan, said that it is open to the
coparceners to sever their interest in respect of part of joint estate, while retaining their status
of a joint family in respect of the rest of the properties. As a general rule, no one can impose
on others a partial partition. Similarly, no one can impose (except the father) a total partition
on others. Thus, if some coparceners want partition, while the others do not, those who want
partition may take away their share and the rest will continue to remain joint.
Sometimes a partition may be partial under compulsion of circumstances. Such will be the case
when properties are in several districts. A District Court is competent to effect partition only
of those properties which are within its jurisdiction.
Partial as to coparcener—If one coparcener or a group of coparceners want to separate, they

cannot impose separation on others inter Se. Nor is there any presumption in law to this effect.
No express agreement to remain joint on the part of the remaining coparceners is necessary.
That they remained joint may be inferred from conduct, such as the way they carried on their
joint business after the separation of the other coparceners. lb is a question of fact to be
determined in each case upon the evidence relating to the intention of the parties whether there
was a separation among the other coparceners or they remained joint, and the burden is on the
26
(Ins. No. 1521 dated 29-7-83 F. No. 209/2/ P3-ITA II)
25
party who asserts the existence of a particular state of things, on the basis of which lie claims
the relief. Father has power to affect a partial partition between himself and his minor sons.
Sec. 20A of the WT Act provides that if a partial partition takes place after 31st Dec., 1978,
among the members of an HUF, which was assessed till then as undivided, such family shall
continue to be liable to be assessed under the Act as if no such partial partition had taken place.
It is not necessary to go into the other provisions of that section for the purpose of this case.
The Explanation to that section reads that for the purposes of the section, partial partition shall
have the meaning assigned to it in cl. (b) of the Explanation to s. 171 of the IT Act. Sub-s. (9)
of s. 171 of the IT Act contains a similar provision for the purpose of the IT Act. Under that
sub-section also, if a partial partition takes place after 31st Dec., 1978, among the members of
an HUF, which was assessed till then as undivided, such family would continue to be liable to
be assessed under the Act as if no such partial partition had taken place. Partial partition has
been defined in that section, as a partition, which is partial as regards the persons constituting
the HUF, or the properties belonging to the HUF, or both.
The validity of s. 171(9) of the IT Act came up for consideration before a Division Bench of
this Court in M.V. Valliappan vs. ITO27 The Bench held that the section cannot be upheld on
the ground that it is a measure to counteract the tendency to tax avoidance and, consequently,
inasmuch as the income which does not belong to the HUF but in fact and in law belongs to a
member of the HUF, on a partial partition is brought to tax in the hands of the HUF, the
provision in the section necessarily suffers from legislative incompetence. The section is also
held to be void on the ground of violation of Art. 14 of the Constitution of India, inasmuch as
it is vitiated by discrimination and arbitrariness. The Bench said that the section entrenches
upon the charging provision in s. 4 of the IT Act and purports to bring to charge the income,
which does not belong to the HUF to be assessed in the hands of the family and, thus, the
provision enlarges the scope of ss. 4 and 5 of the said Act and is, therefore, invalid. It also said
that the section has the effect of fastening a penal liability on the HUF when in fact in the case
of a partial partition, the liability for concealment of income is that of the member of the HUF
who earned the income in his own right and not of the HUF and the provision of law, which
has the effect of fastening such a penal liability in respect of something over which the HUF
has no control, cannot but be construed as arbitrary. Ultimately, the Bench has said that the
effect of the section is that it virtually negatives the right of partition under the personal law
27
(1988) 67 CTR (Mad) 289: (1988) 170 ITR 238 (Mad).
26
only in certain cases of partition after 31st Dec., 1978, and there is no valid basis or justification
for treating HUFs separately in a hostile manner with reference to the date 31st Dec., 1978, the
choice of the date being clearly arbitrary.
BIBLIOGRAPHY
Books:
1. Agrawal’s Family Law in India, Kluwer Law International, 2010

2. Dr.Paras Diwan, Family Law, Allahabad Law Agency: Faridabad, 2011
3. G. C. Venkata Subbarao, Family law in India, C. Subbiah Chetty, 1979
4. Articles on Indian Family Law, Hephaestus Books, 29-Aug-2011.
Websites:
1. http://advocatebharatchugh.wordpress.com/2012/10/13/concept-of-joint-hindu-
familycoparcenorypartition-succession-under-hindu-succession-act/
2. http://taxguru.in/income-tax/partial-and-full-partition-of-hindu-undivided-family-huf-
and-income-tax-provisions.html
3. http://www.advocatekhoj.com/library/agreements/partition/7.php
4. http://www.shareyouressays.com/117189/legal-provisions-regarding-partial-partition-
of-joint-family-property-under-hindu-law
27

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NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

SUBMITTED TO: SUBMITTED BY:

Signature of the Student……………………...

Signature of the Supervisor……………………

1. The lineal male descendants of a person, up to third generation (excluding him),

Difference between a Co-parcener and a Member of HUF:

PARTITION: THE CONCEPT

Partition and Family Arrangement—Distinguished. —A partition must be distinguished from

Agreement not to Partition. —Agreement between coparceners not to partition coparcenary

The Partition as a subject under the following heads:

a) subject-matter of partition, i.e., the property to be divided;

In respect of those properties, three methods of adjustment are available.

1. Some of these properties may be enjoyed by coparceners jointly, or by turns, (under

MODES OF PARTITION (PARTITION HOW EFFECTED)

2. Partition by notice. —A severance of joint status may be affected by serving a notice

Mode of partition: - A partition can be made by a definite, unambiguous declaration of

Automatic severance of status. —Conversion of a coparcener to a: non-Hindu religion (i.e.,

PARTIAL PARTITION: THE CONCEPT

Partial partition by private arrangement is, however, allowed.

II. Partial as regards persons:

PARTIAL PARTITION: THE TAX CONSIDERATION

Partial partition prior to Hindu succession law

Any member or co-parcener or a group of members or co-parceners in their individual

Distribution of properties including immovable properties in partial or total partition of a Hindu

(i) Partial as to property, or

Partial as to coparcener—If one coparcener or a group of coparceners want to separate, they

1. Agrawal’s Family Law in India, Kluwer Law International, 2010

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