LAWS OF PARTITION: PROS AND CONS

By

Name of the Student: Sai Suvedhya R.

Roll No.: 2018LLB076

Subject: Family Law - II

Semester: 4th

Name of the Program: 5 year (B.A., LL.B.)

Name of the Faculty Member : Dr. P Vara Lakshmi , Associate Professor

Date of Submission: 12/12/2020

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

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ACKNOWLEDGEMENT:

The ultimate result of this project required a lot of supervision and guidance from many
people and I am really privileged to have got this all along the completion of my research
work. Whatever I have done is only due to such guidance and I would like to thank them for
the same.

I thank my respected Family Law - II professor - Dr. P. Vara Lakshmi Ma’am, for giving me
a chance to do this research paper and for her consistent support and guidance which helped
me to complete it on time.

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TABLE OF CONTENTS

CHAPTER I

• Introduction -------------------------------------------------------------------------------------04
• Subject Matter Of Partition -------------------------------------------------------------------04
• Principle Of Partition --------------------------------------------------------------------------04
• Modes Of Partition ----------------------------------------------------------------------------04

CHAPTER II

• Properties Not Subject To Partition ---------------------------------------------------------09

• Person Entitled To Partition ------------------------------------------------------------------10
• Property Available For Partition After Deductions And Provisions --------------------10
• Right To Demand Partition -------------------------------------------------------------------11

CHAPTER III

• Suit for Partition -------------------------------------------------------------------------------13

• Reopening Of Partition ------------------------------------------------------------------------14
• Effect of Oral Partition ------------------------------------------------------------------------15

CHAPTER IV

• Pros And Cons Of Partition ------------------------------------------------------------------18

• Conclusion --------------------------------------------------------------------------------------18
• Bibiliography -----------------------------------------------------------------------------------19

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 CHAPTER - I

INTRODUCTION

Partition in Hindu joint family is a process by which joint family status among the coparcener
comes to an end. Partition is a division of that property which is held jointly by some persons,
so that each person gets his share and he/she becomes owner of the share allotted to him or
her. Partition has different meaning under Mitakshara and Dayabhaga school of Law.

According to Mitakshara school of Law Partition means two things, first of all partition leads
to severance of joint status. Secondly Partition means the adjustment into specific shares the
diverse rights of different member.

Under Mitakshara law there was division of right and division of property and under
Dyabhaga school of law partition only means the division of the property in accordance with
the specific shares of the coparcener. Dayabhaga school od Law was observed in Bengal and
Assam, Mitakshara school of Law was observed in rest of the India.

SUBJECT MATTER OF PARTITION

The only property which can be divided is the coparcenery property. Coparcenery property is
ancestral property. Self-acquired property of a member is not subject of partition as it belongs
to the owner. Self-acquired property is owned by person hard earned more, gift or will.

PRINCIPLE OF PARTITON

If property can be partitioned without destroying the value of property, then this partition has
to be done, but if partition cannot be done unless the property is destroyed then the money
compensation should be given.

MODES OF PARTITION

Partition is the division of status, severance of joint status can be brought by in many ways
and those are:

1. Partition by father in his lifetime: “The father may cause a severance of sons even
without their consent. It is the remnant of the ancient doctrine of Patria Potestas. The

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 father during his lifetime is competent to effect such partition under Hindu law and it
would be binding on his sons.

It would be binding on the sons not because they have assented to it but because the
father has got the power to do so, although this power is subject to certain limitations
on the basis of its utility and general interest of the family. It has to be considered as
to whether it is lawful in accordance with the spirit of Hindu law or not. According to
Supreme Court’s decision is Kalyani v. Narayanan, a Hindu father under Mitakshara
law can effect a partition among his sons even in the lifetime of karta of joint family
and such partition would be binding on them.”1

In such a case he can define and specify his share along with his sons and
thus effectuate a separation among them. But in no case ho can divide the joint family
property among the different members by virtue of a Will, although he could do it
with their consent. Where the father has divided the property unequally amongst his
sons, then too it would be binding. But no person can give his consent to the unequal
share on behalf of a minor. The sons have the right to challenge the unequal division
of shares or an act of unilateral division of shares by the father, but it will have no
bearing on the severance of their joint status. Where the father has divided his self-
acquired property unequally among his sons, it could not be challenged by them, nor
is there any need of a registered deed to this effect.

2. Partition by Agreement: “An unequivocal expression of the desire to use the joint
family property in certain defined shares may lead the members of joint family to
enter an agreement to effect a partition. The two ideas, the severance of joint status
and a de facto division of property are distinct. As partition under the Mitakshara law
is effected on severance of joint status, the allotment of shares may be done later.
Once the members of joint family or heads of different branches of the coparcenary
agree to specification of shares, the same can be treated to result in severance of joint
status though the division by metes and bounds may take place later on.”2

1
https://www.shareyouressays.com/knowledge/8-different-modes-of-partition-of-hindu-joint-family-
properties/117719
2
https://blog.ipleaders.in/partition-under-hindu-
law/#:~:text=Modes%20of%20Partition&text=expression%20of%20intention%2D%20one%20member,no%20
actual%20partition%20takes%20place.&text=by%20agreement%2D%20such%20severance%20of,of%20signin
g%20of%20the%20agreement.

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 “In Approver v. Ram Subba Iyer the Privy Council had observed that no coparcener
can claim any defined share in the joint family property in a joint family, but where
the coparceners enter into an agreement to the effect that every member will have a
specific and defined share in future, the joint status is affected and every coparcener
acquires a right to separate his specific share and use the same to exclusion of
others.”3

3. Partition by notice: Partition requires intention to separate so it can be effected

through a notice whether it is followed by a suit or not.

4. Partition by suits:

“The most common way to express one’s intention to separate himself from the joint
family property is filing a suit in the court. As soon as the plaintiff expresses his
unequivocal intention to get separated in the court, his status in the joint family
property comes to an end. However, a decree from the court is required which decides
the respective shares of the coparceners. The severance of status takes place from the
date of filing such a suit in the court. Both a minor and a major coparcener may
approach the court for this purpose.

In the case of Jingulaiah Subramanyam Naidu v Jinguliah Venkatesulu Naidu, a

partition was sought of the property in the name of the wife of the opposite party
claiming that they are joint properties and without making titleholder as the party.
Therefore, the court stated that when the partition is sought of a party, it is a
mandatory condition to make titleholder as a necessary party.”4

5. Partition by arbitration: An Agreement between the members of the joint Hindu

family in which they appoint an arbitrator to divide the property, the partition comes
into existence from the day then the agreement was signed.

6. Partition by conversion to another religion: If a Hindu who renounces his religion

and embraces any non-Hindu religion than he is separated from the joint family and
he loses his membership in coparcenery but his conversion does not affect others

3
AIR 1972 Mad 398
4
https://www.braineryadviser.com/2018/02/partition-modes-partition-Hindu-law.html

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 unity.

7. Partition by special marriage: Marriage of the Hindu under special marriage act
results into severance between him and the other family members.

8. Partition by will: Section 30 of the Hindu Succession Act 1956 brought a change and
now any mitakshara coparcener can make his testamentary disposition of his interest
in the joint family property. A sole surviving coparcener can make a will of the whole
family property, but if any coparcener comes before the death of the person who made
will, then will cannot affect the interest of the newcomer.

9. Partition by Mere Declaration

“Partition under the Mitakshara law is severance of joint status and as such it is a
matter of individual volition. An unequivocal indication of desire by single member
of joint family to separate is sufficient to effect a partition. The filing of a suit for
partition is a clear expression of such an intention. The oral or written
communications by a coparcener could be enough to sever the joint status but the
communication could be withdrawn with the consent of other coparceners and with its
withdrawal partition would not take place.
It is not necessary that there should be a partition by agreement. It can take place by
an act or transaction of coparcener, by which there could be an indication of the
separation of his interest. What type of act, conduct or expression of intention would
disrupt joint status, will be decided on the basis of facts in each case. Where the
communication of the intention to separate has been given with an intent to give only
a threat to it without any real desire to this effect and later on the intention is not
persued, it would not be enough for severance. There would be no separation on
account of the fact that some one of the members of joint family has filed a suit to get
a declaration of insolvency for himself. In absence of any joint property mere
communication of the intention to separate would be enough. In Raghvamma v.
Chenchemma”5, the Supreme Court laid down that it is settled law that a member of
joint Hindu family can bring about a separation in status by a definite declaration of

5
1964 SCR (2) 933

7
 his intention to separate himself from the family and enjoy his share in severalty.
Severance in status is brought about by unilateral exercise of discretion.
One cannot, however, declare or manifest his mental state in a vaccum. “To declare is
to make known, to assert to others. Others must necessarily be those affected by the
said declaration. Therefore a member of a joint Hindu family seeking to separate
himself from others will have to make known his intention to the other members of
the family from whom he seeks to separate. The process of manifestation may vary
with circumstances. It is implicit in the expression ‘declaration’ that it should be to
the knowledge of the persons affected thereby. An uncommunicated declaration is not
better than a mere formation or harbouring of an intention to separate. It becomes
effective as a declaration only after its communication to the person or persons who
would be affected thereby. The Supreme Court in Puttorangamim v. Rangamma”6,
reiterated that “it is, however, necessary that the member of the joint Hindu family
seeking to separate himself must make known his intention to other members of the
family from whom he seeks to separate. The process of communication may vary in
the circumstnaces of each particular case. The proof of a formal despatch or receipt of
the communication by other members of the family is not essential, nor its absence
fatal to the severance of the status. It is of course, necessary that the declaration to be
effective should reach the person or persons affected by some process appropriate to
the given situation and circumstances of the particular case.
“It is, of course possible for the members of the family by a subsequent agreement to
reunite, but the mere withdrawal of the unilateral decalaration of the intention to
separate, which already had resulted in the division in status, cannot amount to an
agreement to reunite. The Patna High Court laid down that for separation a division of
property by metes and bounds is not necessary, there must be unequivocal declaration
by a member to show that he separated from the rest of the family. There is no need of
giving a written notice by one coparcener to the other coparcener. The expression of
the desire of a coparcener to separate can be inferred from the cognate circumstances.
An undivided coparcener cannot merely by declaration and definition of his share in a
deed of transfer executed by him validly make a transfer of a share to which he would
7
have been entitled if he had effected a partition before making the transfer.” The
unequivocal intention to separate has to be communicated to the other coparceners in

6
1968 AIR 1018
7
https://www.coursehero.com/file/49525915/MODES-OF-PARTITIONdocx/

8
 order to effect a partition by severance of status. A severance of status is not brought
about by transferring a certain specific share in joint family property.

CHAPTER - II

PROPERTIES WHICH ARE NOT SUBJECT TO PARTITION

1. Impartible estates: “Property which descends from one person to another because of
some custom like Raj or principality.

2. Dwelling house: In Ancient times Smritikars believed that dwelling house cannot be
partitioned but the modern view do not believe this. Partition of dwelling house will
be decreed if insisted but Court will try that dwelling house stays with one or more
coparcener but if no agreement is made among them, then the dwelling house will be
sold and all the proceeds of sale will be divided among the coparceners.

3. Family shrines, temples and idols: These are neither divided nor sold. The
possession is given to the senior coparcener or youngest member if this person
happens to be the most religious person in the family and giving the liberty to other
family members to worship at reasonable times.

4. Property indivisible by its nature: Some properties are indivisible because of their
nature like animals, furnitures, stair cases, wells, ways, passages, utensils and
ornaments of a coparcener wife. These things cannot be divided unless we destroy
their intrinsic value. These things should be sold and their proceeds divided among
coparceners.”8 sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss

5. Legislative prohibition: Legislature may also make certain properties as indivisible

for some social cause like prevention of fragmentation of holdings, in such cases
Court should not only see that the coparcener demanding the partition has the right to
make it but it should first clear that whether partition is permitted or prohibited by the
Legislature.

8
https://allindialegalforum.wordpress.com/2020/07/05/partition-under-hindu-law/

9
PERSON WHO ARE ENTITLED TO DEMAND PARTITION

Both Mitakshara school and Dayabhaga school allows coparcener to demand partition. The
following people are entitled to demand partition:

1. Father is not only has the power of partition but also effect the partition among the
sons. Father has to act with bona fide intention and not unfair to anyone. If any unfair
distribution of property or partition is done with malifide intention then the suit can be
filled to open the partition.

2. Son, Grand Son and Great-Grand Son have the right to seek Partition.

3. Son born after Partition has also right to get share in partition. In this case partition
will be reopened, so that share can be distributed to the son born after partition.

Before amendment of 2005, females were not considered as coparcener, but some females
like mother and grand mother had the right to share at the time of the partition. But after the
amendment of Hindu succession act 2005 females become coparcener by birth and she has
same rights and liabilities as son.

PROPERTY AVAILABLE FOR PARTITION AFTER DEDUCTIONS AND

PROVISIONS

“When the joint family property is divided all the liabilities attached to the property must be
cleared: ihioyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy

1. Debts: Provisions must be made for the repayment of the joint family debt from the
joint family property. yyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy

2. Maintenance: there are few members in the joint Hindu family which are not
coparceners but they are entitled to be maintained and they are:

i. Unmarried sisters till they are married.

ii. Mother, Grand Mother.

iii. Disqualified coparceners and their immediate dependents.

iv. Widowed daughters of the deceased coparceners.

10
 3. Marriage expenses: When partition is between father and sons provisions should be
made for the marriage of the unmarried daughter of the father.

4. Performance of the ceremonies: if a partition is going on among the brothers than

the provision of funeral expense has to be made for their mother and provision is to be
made of other important ceremonies.”9

RIGHT TO DEMAND PARTITION

As a common rule, every coparcener of a Hindu joint family is permitted to demand partition
of the coparcenary/ Hindu joint family property.

1. Special power of father: “A Hindu father reserves a right to effect a partition

between himself and his sons. Despite the express consent or dissent of his sons, he
can exercise this right. Therefore the severance of the property can be done as per the
special power given to the father.

2. Son, Grandson and Great-grandson: All coparceners, who is major and of sound
mind is entitled to demand partition anytime irrespective of whether they are sons,
grandsons or great-grandsons. A clear demand made by any coparcener, with or
without reasons, is sufficient and the Karta is legally bound to comply with his
demand.

3. Daughter:-Moreover, daughters, son in a mother’s womb, adopted son, son born after
void or voidable marriage, an illegitimate son etc. also reserves a right to demand
partition.

4. Son, Grandson and Great-grandson: All coparceners, who is major and of sound
mind is entitled to demand partition anytime irrespective of whether they are sons,
grandsons or great-grandsons. A clear demand made by any coparcener, with or
without reasons, is sufficient and the Karta is legally bound to comply with his
demand.”10

9
https://medium.com/the-agenda-iyea/demystifying-notional-partition-under-hindu-succession-act-1956-
844cfd86ece9
10
https://www.vidhikarya.com/legal-blog/property-partition-in-india--laws-and-
tradition#:~:text=An%20adult%20son%20has%20the,of%20his%20three%20immediate%20ancestors.&text=U
nder%20Dayabhaga%20School%20of%20Law,the%20death%20of%20the%20father.

11
“In the case of Pachi Krishnamma v. Kumaran, the court stated that the daughter claimed his
share as equal to the son in the partition of joint family property, but she failed to prove her
customs which says that a daughter can get an equal share as to the son. But after the
amendment of 2005 in Hindu Succession Act, it gave the power that a daughter has the right
to ask for partition and can claim an equal share as to the son in the partition of joint family
property

In the case of Prakash & Ors. v. Phulavati & Ors Full Bench of the Bombay High Court in
this case in Para No. 23 of the judgement held that: Accordingly, we hold that the rights
under the amendment are applicable to living daughters of living coparceners as on 9-9-2005
irrespective of when such daughters are born. Disposition or alienation including partitions
which may have taken place before 20-12-2004 as per the law applicable prior to the said
date will remain unaffected. Any transaction of partition effected thereafter will be governed
by the explanation.”11

“In the instant case of Danamma Suman Surpur & Anr. v. Amar & Ors, The Hon’ble
Supreme Court of India in this case as on 1st Feb 2018 held that: Daughters Have Equal
Rights In Ancestral Property, Even If They Were Born Before Enactment Of Hindu
Succession Act.

In the instant case of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan. Vs.
Patel Shantaben Bhikhabhai & Others, in this the Gujarat High Court as on 26/09/2017 held
that a Hindu daughter after marrying to a Muslim guy does not lose her right to inherit
property under The Hindu Succession Act . It was further observed that:

Prima facie, I am of the view that for the purpose of getting her name entered in the record of
rights, all that was necessary to be indicated was that the applicant is one of the Class-I legal
heirs. It was not necessary for her to declare that she is married to a Muslim and she has
embraced Islam by renouncing her Hindu religion. Once the question of law is answered in
favour of the applicant, I do not see any good reason to lay much emphasis on the issue of an
affidavit filed by the applicant.”12

4. Minor coparcener: “The test for partition in case of a minor coparcener is whether the
partition is in the benefit or interest of the minor or whether it can cause danger to the

11
https://www.braineryadviser.com/2018/02/partition-modes-partition-Hindu-law.html
12
https://allindialegalforum.wordpress.com/2020/07/05/partition-under-hindu-law/

12
interests of the minor person. It is pertinent to note that it’s upon the discretion of the court to
decide that a particular case falls under the ambit of interests of the minor.

As per the Hindu Law, if at all a minor has an undivided share in a Joint Family the Karta of
the Joint family will act as a guardian of the minor. However, when it comes to the right to
demand partition by a person, the rights of the minor and rights of major are similar in
nature.

The minor reserves a right to claim partition just like an adult coparcener by filing a suit
through his guardian.”13 But, if it is found that the suit is not beneficial to the minor the suit
can be dismissed. Therefore, it is the duty of the court to serve justice to the minor by
protecting their rights and interests.

CHAPTER III

SUIT FOR PARTITION

Suit for partition and Joint Hindu Family

“Where there were no accounts of the joint family income nor any substantial proof that has
been submitted in order to show that property as alleged was actually purchased by father
from the Joint family income and on the other hand, the defendant brother was successful in
proving by cogent and necessary evidence that the property in dispute was actually acquired
from his own income and resources i.e. without taking any aid from the joint family income,
therefore, the suit filed by plaintiff-brother is liable to be dismissed.

Moreover, it was further held that if at all any family member were living in the same
premises, there could not be any presumption or any inference with regard to the joint family
nucleus so far as income is concerned until and unless it is proved in accordance with any
cogent legal evidence.”14

Suit for partition and separate possession filed by minor son

“When the suit was filed by minor son for partition and there was no dispute with regard to
fact that Karta and his son both were entitled to half of the share in the suit property,

13
14
https://www.indialawoffices.com/knowledge-centre/partition-suit

13
however, at a later stage it was found that the Karta had sold a portion of the suit property
without having the consent and knowledge of the minor son.

Then it was accordingly held that in the event of partition between the parties the portion
which is sold already by Karta under sale in question cannot be allotted to his proposed share
and as such no prejudice per se would be caused to the minor son due to the sale in question
and so impugned order holding a sale in question and so it was accordingly held that the
impugned order is valid and it does not require any inference.”15

Suit for partition filed by widow

“If at all a suit is instituted by a partition i.e. a member of a Joint Hindu Family, all the
coparceners have to be made parties to it, as defendants. Further, wherein the partition is
sought between the branches, then only branches who are representative parties shall be made
parties to the suit.It is imperative to note that all the females in the family are entitled to get
the share at the time of partition. or a purchaser of a coparcener’s vested interest can also be
implicated as defendants.

In the case of Jingulaiah Subramanyam Naidu v. Jinguliah Venkatesulu Naidu, in the instant
case, a partition was sought of the property in the name of the wife of the opposite party and
they were accordingly claiming that they were as the joint family proprieties and therefore no
as such titleholder of the instant property has been made. Therefore, the apex court held that
when there is a partition of a particular property, the titleholder must be made a necessary
party for such property.”16 Jpojpkp[k[pk[plk[pk[pk[pjk[pj[pj[p[p[p[p[p[p[p[piggggggggggg

EFFECT OF ORAL PARTITION

“In Ram Charan Sharma v. Suresh Chand Pathak and others, the finding was recorded by the
Trial court that the deceased had orally partitioned the disputed property equally in favour of
the two sons during her lifetime in presence of her husband and sons.

However, the husband was claiming one-third share in the disputed property but due to
failure on part of the husband i.e. to examine himself before a trial court to state on oath that
no partition had taken place during the lifetime of his wife, it was duly held that husband

15
https://www.indialawoffices.com/knowledge-centre/partition-suit
16
https://medium.com/the-agenda-iyea/demystifying-notional-partition-under-hindu-succession-act-1956-
844cfd86ece9

14
would not be entitled to get one-third share of the property that has already been partitioned
because of oral partition is permissible in accordance with the Hindu Law.”17

“Moreover, in the same case itself, it was observed that the deceased had orally partitioned
the property in dispute equally in favour of the two sons during her lifetime in presence of her
husband and sons, however, husband’s claim for the one-third share in the property in dispute
was rejected in absence of a separate suit or a counterclaim by a husband seeking a decree for
same from the Trial Court with the requisite court-fee, therefore, the husband was held not
entitled to prefer an appeal against the partition decree in favour of son.

In a case wherein it was not disputed that the suit property was a joint family property and the
document in respect of the partition came into existence after the commencement of oral
partition had already taken place, therefore the aforesaid document would neither require
requisites of stamp or registration. If at all there is an oral partition, the oral partition itself
creates a vested interest in that specific property and not the document which comes into
existence later the document can be used for proving the severance of status.”18

PERSONS WHO HAVE A RIGHT TO PARTITION AND SHARE

“Both under mitakshara and dayabhaga school, every coparcener has a right to partition and
is entitled to share.

A minor coparcener can also ask for partition.

Every coparcener has a right to partition except in case of

1. Unqualified coparcener

2. Under Bombay school, sons cannot ask for partition against their father if the later is
attached with his own father or collateral.

The following people can claim partition and are entitled to share in the partition-

1. Father- under mitakshara school, the father not only has a right to partition but also
has the power to effect partition among the sons. The father can also impose partial

17
https://www.braineryadviser.com/2018/02/partition-modes-partition-Hindu-law.html
18
https://blog.ipleaders.in/partition-under-hindu-
law/#:~:text=Modes%20of%20Partition&text=expression%20of%20intention%2D%20one%20member,no%20a
ctual%20partition%20takes%20place.&text=by%20agreement%2D%20such%20severance%20of,of%20signing
%20of%20the%20agreement.

15
 partition among the sons but he must act bona fide and not unfair to anyone. A suit to
re-open, the partition can take place in case of partiality or mala fide partition by the
father.

2. Son, grandson, great-grandson -under mitakshara school, son, grandson and great
grandson have a right to seek partition

3. Son born after partition- According to Vishnu and Yajnavalkya the partition should be
reopened to give the share to the son born after partition. However, Gautama, Manu,
Nerada held a different view about the same.

Before the amendment of 2005, females couldn’t be the coparceners but some females like
the mother, father’s wife and grandmother had the right to share at the time of partition.”19

WHEN CAN PARTITION BE REOPENED

“Typically, when a partition is made it can’t be reopened on the grounds that a share can be
separated just for once. But there are sure special cases to this general guideline. Following
are where partition can be reopened: ojsbopghwjepohjwepojhpwrkh[pwrkhpwejh[wekj[wekj

1. Mistake- A suit can be filed, if any of the joint family properties have been kept
separate from partition by mistake, they can be exposed to partition later.

2. Fraud- The partition can be revived if any of the coparceners had done any fraudulent
or mala fide act. For instance, if any of the property has not been made liable to
partition fraudulently.

3. Disqualified Coparcener- Due to certain reasons, the disqualified coparcener may be

oppressed from his share of the property at the hour of partition. In such a
circumstance, he could get the partition expelled after the exclusion is evacuated.

4. Child in Womb- If a child is in the Womb at the hour of partition, and no share was
dispensed to him, at the hour of partition afterwards it tends to be revived.

5. Adopted Son- The embraced child is allowed to re-open the partition in the event that
if the widow of a coparcener embraced a child after the partition. Such appropriation

19
https://blog.ipleaders.in/partition-under-hindu-
law/#:~:text=Modes%20of%20Partition&text=expression%20of%20intention%2D%20one%20member,no%20a
ctual%20partition%20takes%20place.&text=by%20agreement%2D%20such%20severance%20of,of%20signing
%20of%20the%20agreement.

16
 under the Hindu Adoptions and Maintenance Act 1956 related back to the date of
death of deceased husband and such adopted child can revive partition.

6. Missing Coparcener- Coparcener who is absent at the hour of partition has an option
to revive the partition in the event that he is missing at the hour of partition and no
share is allocated to him.

7. Minor Coparcener- If a minor coparcener can guarantee for reviving the partition in
the event that he isn’t alloted his share at the timed of partition, in the wake of
achieving larger part. However, that at the time of partition his interests are not be
appropriately protected then he can reopen the partition.”20

REOPENING OF PARTITION

In a coparcenary, the coparceners hold the property as one common unit, partition means the
fixing of the shares of each coparcener.the partition can be classified into two types-

• De jure Partition

This partition brings merely the severance of status or interest. This happens when the
community of interest is broken, either at the instance of one of the coparcener or by the
agreement of all the coparceners. In such a partition, the shares become clearly demarcated
and are no longer fluctuating. However actual partition does not take place.

• De facto Partition

This is a partition by metes and bounds. This happens when the unity of possession is broken.
It is only after the de facto partition, the respective shares of the coparceners become their
exclusive shares. Here the actual division of shares takes place.

CHAPTER - IV

PROS AND CONS

Pros

• Beneficial when the co-owners can’t agree to terms

20
https://allindialegalforum.wordpress.com/2020/07/05/partition-under-hindu-law/

17
 • Possibility of recovering unreimbursed costs of major renovations conducted by one
of the owners

Cons

• Potentially expensive

• Time consuming

• Property is normally lost through re-sale and the proceeds are split

CONCLUSIVE ANALYSIS

It is humbly suggested by the author that the procedure established for partition must be
slightly modified, so that partition under Hindu law can be done with ease. There are a lot of
material discrepancies pertaining to the filing of a suit of partition and effect of oral partition
that has been discussed in this research paper. Further, it is stated that the law of partition
must recognize the right to female to partition as there have been cases wherein the rights of
mothers and daughters have been discarded.

A partition can be defined as a concept of Hindu Law which is regulated by mainly two kinds
of schools of thought i.e. the Mitakshara and Dayabhaga schools respectively. Partition is
mainly done amongst the members of the Joint Hindu Family, which means a severance of
status of the jointness and also the unity of possession among the members of the joint
family.

It is pertinent to note that under Hindu Law can partition can take place via arbitration, notice
or an agreement, will etc. Under the Mitakshara school of Law, it has been duly stated that
partition can take place by branch or by stripes. However, under the school of Dayabhaga
partition is only possible after the death of Karta in the family. Therefore it can be stated that
Dayabhaga school does not follow any concept like coparcenary.

18
So, it can be inferred that partitioning is a method that performs the role of bringing to an end
a Hindu joint family. Through the partitioning process, a joint family property becomes every
coparcener’s self-acquired property as per its shares. Partitioning can be achieved by
separating the land by metes and boundaries, or by severing the mutual relationship, or both.
Precisely, partitioning happens in the real sense only when a Hindu Undivided Families joint
status ends.

BIBLIOGRAPHY

1. http://familylaw.lawnotes16mrks.com/Family/Partition.html

2. https://www.legalbites.in/partition-hindu-law/

3. http://lawtimesjournal.in/partition-under-hindu-joint-family-properties/

4. https://www.lawyersclubindia.com/articles/all-about-partitions-in-india-9108.asp

5. https://www.slideshare.net/shivi2022/partition-laws-in-india

6. https://www.justanswer.com/real-estate-law/801tc-pros-cons-filing-petition-
partition.html

7. https://www.freeadvice.com/legal/partition-of-jointly-owned-property/

8. https://www.hg.org/legal-articles/what-are-the-advantages-and-disadvantages-of-
joint-tenancy-36073

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20
family
ORIGINALITY REPORT

23 %
SIMILARITY INDEX
22%
INTERNET SOURCES
3%
PUBLICATIONS
10%
STUDENT PAPERS

PRIMARY SOURCES

1
www.legalserviceindia.com
Internet Source 12%
2
blog.ipleaders.in
Internet Source 4%
3
www.shareyouressays.com
Internet Source 3%
4
www.debate.org
Internet Source 3%
5
Submitted to The WB National University of
Juridical Sciences
<1%
Student Paper

6
Submitted to National Law University New Delhi
Student Paper <1%

Exclude quotes On Exclude matches < 14 words

Exclude bibliography On