MINOR COPARCENER SON BORN AFTER PARTITION

PG.NO INDEX S.NO

1. INTRODUCTION 1

2. PARTITION 2

3. RIGHTS ON PARTITION 4

4. TYPES OF PARTITION 5

5. PERSONS ENTITLED TO PARTITION 7

6. MODES OF PARTITION 9

7. RE-OPENING OF PARTITION 11

8. RIGHT TO PARTITION TO SON BORN AFTER 12

PARTITION

9. MINOR’S RIGHT TO DEMAND PARTITION 15

10. RIGHTS AND PREVILEGES OF MINOR COPARCENER 15

11. MINOR LIABILITY IN JOINT FAMILY PROPERTY 20

12. CONCLUSION 21

13. REFERENCES 22

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INTRODUCTION
Partition is the process by which a coparcener cuts ties with his joint family and loses
his coparcener status. The essence of coparcenary is unity of ownership. No undivided
member of the coparcenary property possesses any specific portion of the property as long as
the family is joint. The portion of the coparcener or coparceners seeking partition, which was
uncertain, variable, and unpredictable prior to the partition, becomes specific and definite as a
result of the partition, and is thus assigned to the appropriate members. 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.
For example, in a joint Hindu family, 'x' 'y' 'z' are three brothers, and their three sons
are 'XS' 'YS' 'ZS'. If three brothers divide their property but their sons do not, three joint
families will emerge: 'X' and his son 'XS,' 'y' and his son 'YS,' and 'Z' and his son 'ZS.'
A minor son who is a coparcener and was born after the partition of India has specific rights
under Hindu law, particularly concerning ancestral property.

1. WHAT IS A PARTITION?
Partition1 means a numerical division of property and bringing a Hindu Joint family to
an end. The joint family ceases to be joint and transforms into a nuclear family after partition.
In a coparcenary, the coparceners hold the property as one common unit, partition means the
fixing of the shares of each coparcener.

1
Saxena, Poonam Pradhan, Family Law Lectures, Family Law II, Second Edition, Lexis Nexis, Second Reprint
2008

2
 According to the Mitakshara Law, it is the adjustment of the diverse interests
regarding the whole, by distributing them into particular portions of the aggregate. Thus,
partition implies the crystallization of the fluctuating interest of a coparcenary into a specific
share in the Hindu Joint Family.

1.2 WHO CAN AFFECT PARTITION?

Every coparcener in the coparcenary has the right to ask for partition provided that he
should be a major and of sound mind. The demand of the coparcener to seek partition
whether reasonable or not, if manifested clearly can never be ignored by the Karta and he is
bound to comply with it.
There are two necessary conditions of partition, which brings about the severance of
the joint status or interest.

1) The formation of intention to separate.

2) The declaration of an intention to separate. The declaration involves the expression of

intention plus communication of the intention to sever. The declaration of intention

that actually severs the status can be verbal or in writing, but it must be clear and
unambiguous. The unequivocal communication of intention must be the conscious
and informed act of the coparcener.
Father, son, grandson, great-grandson, son conceived at the time of partition but born after
partition, adopted son, minor coparcener, absent coparcener, alienee, and daughters not only
have a right to call for partition but are also entitled a share on partition at the same
time.However, a father has a superior right to ask for partition. He cannot only affect a
partition between himself and his sons, but can also impose a partition on his sons inter se. In
exercise of the power of the father to call for partition, the consent of sons is immaterial. But
the father while exercising such power must act bona fide. If the division made by him is
unequal, fraudulent or biased, partition can be reopened. With respect to the minor’s share,
the father retains his control as a guardian. However, the minor’s share after partition would
constitute as his personal property and even the father has no right to alienate it without
court’s permission. The minor coparcener cannot avoid the partition affected by his father, till
he attains majority. He can, however, repudiate it after attaining majority.

3
Since, section 8 of the Hindu Succession Act makes no distinction between the separated son
and undivided sons in the matter of succession to the separate property of Mitakshara Hindu,
it is to be noted that, if there are other sons to father which have separated from him, then
they can also claim to inherit father’s separate property along with the undivided after born
sons. But where a coparcener who has relinquished his share in the partition, the son begotten
after the renunciation can’t claim status of a coparcener, as his father can no longer be
regarded as a part of the coparcenary.
There is another category of the members of the joint family who have no right to partition,
but if partition takes place, they are entitled to share.
The son born out of the void or voidable marriages is a legitimate child of the parents and is
statutorily entitled to inherit their separate property, but he cannot inherit from any other
relation of the parents. A statutory legitimate child would be entitled to inherit the property of
the father but would not be a coparcener with him and would not get a share at the time of the
partition. In other words, he is not entitled to seek partition during the lifetime of the putative
father, it is only after the father’s death, he is entitled to a share on partition.

1.3 RIGHTS ON PARTITION 2

1. Coparcenary Rights:
Under Hindu law, a son is automatically considered a coparcener in the family
property. This means he has a right to a share in the ancestral property, even if he was
born after the partition.

2. Equal Rights:
The rights of a minor son as a coparcener are equal to those of other coparceners. He
can claim his share in the ancestral property, which is typically divided equally among
all male heirs.

3. Mitakshara and Dayabhaga Schools:

The rights can vary slightly depending on whether the family follows the Mitakshara
or Dayabhaga school of Hindu law, but generally, a coparcener has strong rights.

2
Dr. Paras Diwan; Family Law; Allahbad Law Agency(2021)

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 4. Legal Representation:
Since the son is a minor, his rights would be exercised through a legal guardian until
he reaches the age of majority.

5. Post-Partition Property:
If property was specifically acquired after the partition, the rights may differ,
depending on how that property was classified (ancestral vs. self-acquired).

6. Succession Rights:
If the father or any other coparcener passes away, the minor son will have rights to a
share of the property through succession laws.
For a comprehensive understanding of specific situations and local laws, it's advisable to
consult a legal expert specializing in family law.

1.4 TYPES OF PARTITION

There are two types of partition.
1) Total partition
In total partition, the whole property of a Hindu Undivided Family undergoes a total
division of property and the same will be divided in between all the coparceners and
family cease to exist as a Hindu Undivided Family.

2) Partial partition
Partial partition can be made when some of the members go out on partition & other
members continue as being a member of the family. In such a partition, the rest of the
coparceners maintain the joint status with respect to the remaining property.

2. DE FACTO AND DE JURE PARTITION

1) De jure partition:
In an undivided coparcenary, all existing coparceners have a joint share in the
property, and none of the coparceners can tell the exact amount of share that
he holds in the property until the division takes place. Furthermore, because of
the doctrine of survivorship, the interests of the coparceners can fluctuate
according to the births and deaths of the other coparceners. However, when
the common interest is broken down at the request of one coparcener or by
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 mutual agreement that the shares are now clearly set or demarcated, this is
known as a De Jure partition, and the Doctrine of Survivorship is not
applicable.
2) De facto partition:
After the severance of Joint status or division of community interest, unity of
possession, which refers to the coparceners' enjoyment of property, may
continue. Although the number of shares in the property may not be specified,
no coparcener waives his right to claim any property as his exclusive share. "A
de facto partition occurs when the Unity of Possession is broken up by a real
division of property."

3. WHAT PROPERTY IS DIVISIBLE ON PARTITION? 3

Self-acquired property and ancestral property are the two categories of property. No
coparcener is entitled to claim his parents' self-acquired property on partition during his
parents' lifetime. If the father wishes to gift by will, he may do so, but no one can claim any
self-acquired property during that person's lifetime. However, if it is an ancestral property,
the son, grandson, and great grandson are all eligible. The joint Hindu family's coparceners
have the right to claim partition at any moment. Only the coparcenary property, which is an
ancestral property, can be divided on partition. Also, any properties that came into partition
must be divisible in nature, as there are numerous properties that can be divided or adjusted
among the coparceners in specific conditions. Although the general law states that all joint
family property is divisible by nature, there are several exceptions to this rule. Some
properties are impossible of division by their very nature. "A vehicle, a dress, cooked food,
water, and female slaves," Manu ordered, because these types of goods cannot be divisible in
nature and can only be used by one person, thus no one can claim such items on partition that
are not divisible in nature. Staircases, wells, tanks, fields, and highways, for example, are
exceptions. In these categories of things, which are by their nature incapable of division, an
arrangement has been derived. The court will issue an order requiring that this type of thing
be used by all coparceners. As a result, partition is impossible.

3
https://bcajonline.org/journal/hindu-law-joint-family-property-wife-is-entitled-to-share-in-property-alongwith-
her-husband-wife-cannot-demand

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4. PERSONS ENTITLED TO PARTITION OF PROPERTY UNDER HINDU LAW 4
Every coparcener has the right to partition and partake in the division. According to
Hindu law, the right to partition is limited to three degrees: father, grandfather, and great-
grandfather. Coparcenary refers to somebody who is a direct descendant of commo n
ancestors up to three degrees from the common male ancestor. And all of these people, or
members of the joint family, have the right to inherit ancestral property.

1. FATHER
When a coparcenary consists of a father and his sons, the father has the power to
partition the property. He is qualified to carry out such partitions. This power is
acknowledged by Hindu law as "Patria Potestas." The father does not need the
approval of his sons to use this right, and it is obligatory on the sons as well. Not only
the property, but also the corpus of the property, can be divided by meets and bounds
by the father. Such power, however, should be exercised in good faith and in the best
interests of the family. The reopening of the partition could be due to unequal or
partiality. Without the assent of his sons, the father cannot wield this power by "will."

2. SON, GRANDSON AND GREAT-GRANDSON

They all have the right to divide, however in Bombay School, the son does not have
the right to partition without the approval of his grandfather.

3. BORN AFTER PARTITION

A child in his mother's womb at the time of the partition is treated equally and has a
right to a share of the property. He must be treated as a live being, regardless of
gender. After reaching majority, he has the right to reopen the partition if the shares
are unequal.
When a son is born or begotten after the partition, he is entitled to his father's share at
the time of division as well as his own property to the exclusion of the other sons, and
he is not entitled to reopen the partition.

4
Donald R. Davis Jr. Dharma in practice: Acara and authority in Medieval Dharam shastra, Journal of Indian
Philosophy, 2004.

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4. ADOPTED SONS
An adopted child is treated as if he were a natural born child, and as a result, he has
the right to demand partition at any time after the adoption. Now, under the Hindu
Adoption and Maintenance Act of 1956, an adopted kid has the same right to a share
on partition as a natural born child.
Every adult coparcener, male or female, has the power to enforce partition under
Dayabhaga. Sons, grandsons, and great-grandsons of Hindus governed by Dayabhaga
law do not take an interest in the ancestral property by birth and are hence not entitled
to partition of the ancestral property against them. For the same reason, there is no
discussion about the wife taking a piece of the ancestral property. The rights of a
bereaved mother under Dayabhaga law are similar to those under Mitakshara law,
with the exception of the following:

1. According to Dayabhaga law, a woman may inherit both in her own right and
through her deceased sons' heirs
2. Under the dayabhaga law, a stepmother who is without a son is not entitled to a share
of the distribution between her stepsons.

5. FEMALE SHARERS
The term female refers to three different kinds of female coparcenary members:
(i) the wife,
(ii) the widowed mother, and
(iii) the paternal grandmother.
These female shares are unable to demand a partition or claim a share based on the
dissolution of a joint family relationship. They are, however, only entitled to their
share if the joint family property is genuinely divided on some partitions rather than
all of them. A wife is entitled to a share equivalent to that of a son in a partition
between her husband and his son, except in Madras, according to Mitakshara law.
When the father's estate is divided after his death, the son's mother or stepmother is
entitled to a share equivalent to that of a son or stepson, according to Mitakshara law.
A sonless widow, as well as a stepmother who has no son, are not entitled to a share
on division under Dayabhaga law.

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6. ILLEGITIMATE SON
An illegitimate son among the three regenerate classes cannot demand a partition
because he has no vested interest in the property, but he is entitled to maintenance
from his father's wealth. Sudra's legitimate son may impose a partition against his
legitimate brothers, but not against his father or father's coparceners, such as his
father's brother or their offspring, according to the Madras and Allahabad High
Courts. In the case of Bombay, the similar sentiment was voiced. The Calcutta High
Court, on the other hand, has taken a different stance. According to some, the share of
an illegitimate son is half of what it would have been if he had been a legitimate son,
while others believe it is half of what it would have been if he had been a genuine son.

7. ALIENEE
When a coparcener has the right to sell his interest and the alienee buys it through a
court or private sale, the alienee might seek shares because he is now in the position
of a coparcener.

5. MODES OF PARTITION 5

1. PARTITION BY MERE DECLARATION TO SEPARATE:

In Mitakshara Law, partition is the separation of joint status, and it is a personal
decision. A member of a joint family's intention to separate himself from the joint
family and enjoy his portion in severalty is characterised as partition.

2. PARTITION BY NOTICE:
A severance of joint status can be achieved by a coparcener serving notice on the
other coparceners stating his intention to separate and enjoy the property in several to
your petition for the property to be partitioned.

3. PARTITION BY WILL:
A corparcener can achieve partition by writing a will that expresses his wish to sever
himself from the joint family or asserts his right to do so to his coparceners in a clear
and unequivocal manner.

5
S.R Roy; Joint Property and Partition; Kamal Law House(2019)

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 4. CONVERSION TO ANOTHER FAITH:
When a coparcener converts to another faith, his and other family members' joint
status is severed.

5. PARTITION BY AGREEMENT:
Because the true test of partition is the desire of joint family members to become
separate owners, an agreement between joint family members to hold and enjoy the
property in certain defined shares as separate owners operates on partition, even if the
property has not been divided by metes and bounds.

6. PARTITION BY ARBITRATION AGREEMENT:

A joint family agreement to appoint an arbitrator to arbitrate and divide the property
from the date of the agreement serves as a partition from the date of the
agreement.The fact that no award has been made does not mean that the intention to
separate has been abandoned.

7. PARTITION BY FATHER:
Without the sons' approval, the father may also cause their separation. It's a relic of
the ancient 'Patria Potestas' concept (paternal power). Under Mitakshara Law, a Hindu
father can demand partition with his sons in the presence of the family's karta and
thereby bond the sons by partition.

8. Partition by suits:
The filing of a suit for partition ipso facto results in the severance of joint family
status, and as a result, the filing of such a suit results in instant severance of joint
status. A decree may be required to determine the subsequent severance and award a
specific share, but the plantiff's status as separate in estate is established by his claim
of his right to separate, whether or not he receives a consequential judgement.
In Girjanandani v. Brijendra, their Lordships of the Supreme Court decided that the
institution of a suit might generally effect partition.
In the case of a joint status suit for partition, the father's approval is no longer required, and
the son is completely eligible to file a claim for partition even during his father's lifetime.

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There may be alternative scenarios that, if mentioned unequivocally, will be allowed if the
forms of partition provided here are not exhaustive.

6. REOPENING OF PARTITION 6
"Once only a partition is made," Manu says. Once a division is created, it is permanent
and irreversible, and it cannot be undone. The following are the exceptions to this rule.
Mistake, Fraud, Son in Womb, Adoption, Disqualified coparceners, Son conceived and
born after partition, Absentee coparcener, and Minor coparcener are all reasons for
reopening a partition.

1. FRAUD:
If the partition is proved to be fraudulent, it can be set aside, and the person who was
aggrieved can ask for the partition to be reopened. For example, if worthless assets are
fraudulently disguised as valuable assets and distributed to a coparcener, the
coparcener has the right to demand partition reopening.

2. SON IN WOMB:
If a son is in the womb at the time of partition and no share is set aside for him, he
can have the partition reopened.

3. ADOPTED SON :
If a coparcener's widow adopts a son after the partition, the adopted son has the
right to reopen the partition.

4. DISQUALIFIED COPARCENER :
A disqualified coparcener is one who, at the time of partition, is denied of his share
due to a disqualification or technical constraint. He can have the partition restored
if the disqualification is lifted.

5. SON CONCEIVED AND BORN AFTER PARTITION –

When a father does not take share in the partition and a son is born to him, the son
has the right to reopen the partition.

6
RK Aggarwal, Hindu law, Central Law Agency, (25th Edition) 2016

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 6. ABSENTEE COPARCENER –
If a coparcener is not present at the time of partition and is not given a share, he
can have the partition reopened.

7. MINOR COPARCENER –
When a coparcener is a minor at the time of partition, he has the right to reopen the
partition if his interests are not effectively protected. A partition can be reopened at
the request of a minor coparcener even if there is no fraud, deception, or undue
influence, if the division was unequal, discriminatory, or harmful to the minor's
interests.

8. MISTAKE –
If some joint family properties were left out of the division by mistake, they may
be subjected to partition afterwards.

7. RIGHT TO PARTITION OF A SON BORN AFTER PARTITION 7:

Various Smritikars have different opinion regarding right to partition of a son born after
partition. As per Vishnu and Yajnavalkya, re-opening of partition for determination and
provide with of share of after born son has to be done. But Gautama, Manu, Narada and
Brihaspati in the opinion that after born son has right to partition of his father’s property
only. But according to Mitakshara school, we have two rules; one for the son who was in
the womb when partition taking place, and the other for the son who has come into the
womb after partition. Now we will discuss the rules regarding partition for these two
types of son :

a. SON/DAUGHTER WHO WAS AT THE WOMB WHEN THE PARTITION

TAKING PLACE:
According to texts, if existence of child in the womb of mother is known the partition
should be postponed til the child born. A share equal to the share of a son should be
reserved for the child in the womb if the coparceners do not wants to wait till the child

7
Poonam Pradhan Saxena, Family Law II Lectures, Lexis Nexis, (3rd Edition) 2020

12
 born. Now if the child who will take birth is a son then he can take his share, but if the
child who will take birth is a girl then from her share provision for her marriage also
should be made. In Yekayamain v. Aganiswarian, (1870) Mad. H.C.R. 3078 it was
held that son can demand to reopen of the partition after his birth, if no share is
allotted for him. ” If pregnancy is not known and consequently no share is reserved,
then also the redistribution of the estate should take place after after the birth of the
son. In such a case also the after-born son can get partition re-opened. This rule
applies to partition between father and sons.” Dr. Paras Diwan, Modern Hindu Law.

b. SON BEGOTTEN AND BORN AFTER PARTITION :

On that scenario Mitakshara’s general rule will be applicable. There are two situation
which may be arises :
(a) the father has taken his share in a partition and
(b) the father has not taken any share.
(a) When the father has taken his share, the son who takes birth after partition may
ask for his share from father’s property.
(b) When the father has not taken his share, the son who takes birth after the partition
has a right to re-opened the partition and get his share, held in Chennagama v.
Munisami, (1897) 20 Mad 75.

c. SON CONCEIVED AT THE TIME OF PARTITION BUT BORN AFTER

PARTITION.—
The Hindu law has for many purposes equated person in the womb to a person in
existence. The texts lay down that if the pregnancy is known, the partition should be
postponed till the child is born. But if the coparceners do not agree to this, then a
share equal to the share of a son should be reserved for the child in the womb. If the
child is born a son, he takes it, but if it is born a female, a marriage provision should
be made for her out of the share reserved and the surplus, if any, should be distributed
among the coparceners. In case no share is reserved for the son in the womb, he can,
after his birth, demand reopening of the partition. If pregnancy is not known and
consequently no share is reserved, then also the redistribution of the estate should take
place after the birth of the son. In other words, in such a case also the after-born son

8
Yekayamain v. Aganiswarian, (1870) Mad. H.C.R. 307

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 can get partition re-opened. This rule applies to partition between father and sons. Son
begotten and born after partition.
In this case, the Mitakshara’s general rule applies. Two situations may arise
(a) when the father has taken his share in a partition, and
(b) when the father has not taken any share.

(a) When the father has taken or reserved a share for himself, the after born son becomes
a coparcener with his father. After the death of the father he takes not only this estate
by survivorship but he also inherits the entire separate property of his father to the
exclusion of divided sons. But now, after the Hindu Succession Act, 1956, the latter
rule stands abrogated, as S. 8 of the Act makes no distinction between separated sons
and undivided sons in the matter of succession to the separate property of a
Mitakshara Hindu.

(b) When the father has not taken or reserved a share for himself, the after-born son has a
right to get the partition re-opened and get the estate redistributed as it then stood.
This rule applies, like the former, to a partition between father and sons.
For example, a coparcenary consists of a father A and his two sons B and C. Partition takes
place. Subsequent to partition, another son D is born to A and a son BS, born to B. If A has
not taken the share, D can get the partition reopened. But BS has no such right.

MINOR COPARCENER.—
Hindu law makes no distinction between a major coparcener and a minor coparcener
in respect of their rights in the joint family property. As in other matters so in partition, the
right of the minor coparceners is precisely the same as those of major coparceners. The minor
coparcener has also a right of partition. A suit for partition may be filed on behalf of the
minor by his next friend or guardian. It is here that some distinction is made. A minor is a
person of immature intellect, and the court acting as parens patriae has the duty to protect a
minor’s interest. Thus, if a Karta is squandering the joint family property to the prejudice of
the minor coparcener, if he is ill-treating him or discriminating him, or is, on the whole,
unfavourably disposed towards the minor, the minor’s guardian may deem it proper to effect
a partition on behalf of the minor. When the guardian or the next friend files a suit for
partition on behalf of the minor, the court has to be satisfied that the partition will be for the

14
benefit of the minor. If the court comes to the finding that the proposed partition is not for the
benefit of the minor, the partition will not be allowed

8. MINOR’S RIGHT TO DEMAND PARTITION :-

A minor coparcener has an equal right with the adult coparceners to demand partition
of a JFP But since a minor lacks legal capacity, he has to exercise this right through a next
friend/ guardian. When the guardian, etc. files a suit for partition on behalf of the minor, the
court has to be satisfied that the partition will be for the minor’s benefit. Partition takes effect
from the date of institution of the suit and not from the date of the court’s order finding that
the partition is for the welfare of the minor.
In Pedasubhajya v Akanamma (AIR 1958 SC 1042)9 the court observed: “The true
effect of a court’s decision that the action is beneficial to the minor is not to create in the
minor proprio vzgore (‘by its own force’) a right which he did not possess before but to
recognize the right which had accrued to him, when the person acting on his behalf instituted
the action. Thus, what brings about the severance in status is the action of the next friend in
instituting the suit. Therefore, if minor dies during pendency of the suit, which was so in the
present case, the same can be continued by legal representative of minor (mother of the
plaintiff).” It is not necessary that the minor can claim partition only by instituting a suit. He
can do so by giving a notice through his friend or guardian. In other words, the partition can
be effected out of the court. The suit becomes necessary when the adult coparceners are not
willing to effect a partition. It may also be noted that when father partitions, it does not mean
that his minor son’s interest also gets severed.

9. RIGHTS AND PRIVILEGES OF A MINOR COPARCENER

The moment a coparcener is born, he acquires an interest in the coparcenary property
which is equal to the interest of his father. So the rights and privileges of a minor coparcener
is same like a major coparcener but with some restrictions with regard to the partition and
alienation of the coparcenary property. The joint family system is an inseparable concomitant
of the life of the Hindus as suggested by the statement that there is no escape for a Hindu
from the joint family.
A Hindu joint family comprises of the common ancestor and all his lineal male
descendants upto any generation together with their wives or widows and unmarried

9
Pedasubhajya v Akanamma (AIR 1958 SC 1042)

15
daughters. Coparcenary is another term used under the Hindu Law and sometimes believed to
be same in meaning and scope as the joint family. However the term coparcenary under the
Mitakshara School is much narrow in scope and its membership is confined to male
descendants upto four degrees, from a common male ancestor.
All the coparceners have unity of possession and community of interest in the joint
family property. The term Partition , in common parlance is used to denote segregation of
joint interests. But under Hindu law the concept of Partition is not confined to mere division
of property. Infact it covers both segregation of title and division of joint family property.
Vijananesvara has opined that the word partition renders the adjustment of diverse rights
regarding the whole by distributing them in particular portions of the aggregate. It is thus
clear that Vijnaneshwara?s definition of partition does not only cover the division of property
into specific shares but it also includes the demarcation of the respective rights of the
individuals who claim the heritage jointly.
It is not mentioned anywhere in the Mitakshara that for dismantling the joint status, an
agreement between all the coparceners is required. The only thing that is required to
materialize a severance is a clearly comprehensible, unambiguous and explicit indication of a
member of a joint family to segregate himself from the joint family. The member should
unequivocally express his intention to enjoy his share separately. In 1922, in the case of Syed
versus Jorawar, the Privy Council observed that it is settled law that a severance of estate is
effected by an unequivocal declaration on the part of one of the joint holders of his intention
to hold his share separately, even though no actual division takes place. The desire to break
apart may be expressed in a number of ways, either by conduct or by overt declaration. It
may be put forth by serving a notice on the other coparceners and in such case the severance
of status takes place from the date when the communication was sent and not when it was
actually received.
In a similar fashion, the institution of a suit for partition by a member of the joint
family serves as an express declaration of his desire to separate and as a sequel to this there is
a severance of status from the date of institution of such suit.
In the case of Raghvamma Versus Chenchamma 10, the Supreme Court said that
communication of intention to severe must be communicated to all interested parties. From
this observation the question arises as to whether a minor is an interested party within the
ambit of the above decision? It is the uniqueness of Indian Law that it does not strike any

10
Raghavamma And Anr vs Addagada Chenchamma And Anr on 9 April, 1963

16
difference between minor coparceners and major coparceners, in respect of their rights in the
joint family property. The rights of both the major and minor coparceners stand identical to
each other with no points of distinction at all. So it is clear beyond doubt that minor
coparcener enjoys a right of partition. The status or position of a minor coparcener has to be
evaluated from two wide perspectives. Under the Hindu Law a father is competent to effect a
partition during his lifetime. Such a partition effected by the father shall be binding on his
sons ? both major and minor.
Thus a father has the capacity and power not only to sever the joint family status
between himself and his sons but also to effect partition between his sons inter se. This also
implies that a father can separate his minor son along with himself from the other joint
holders or he can also separate a minor son from the rest of the family including himself.
Hindu Law establishes another fact beyond any doubt that the presence of minor coparceners
does not operate as an impediment against partition by adult coparceners.
A partition agreement entered into by adult coparceners, shall be binding on the minor
coparceners except where such agreement is unfair or prejudicial to the interests of the minor.
Where a partition agreement is detrimental to the interests of the minor coparceners, in such
cases the minor can set aside such agreement on attaining majority. But this also poses great
hardships for the minor, as he may have to wait for a number of years before he can exercise
this option. So for example an inequitable partition is effected when minor is of 7 years. He
can challenge such a partition only when he crosses the age of 18.
Thus he will have to put up with injustice during all these years. A major coparcener
can effect a severance or partition at his will. But the minor coparcener cannot of his own will
cause himself to be separated nor can he authorize anyone on his behalf to separate him. The
only option which is available to the minor is to institute a proceeding through his next friend
and thereafter the Court can pass a decree after satisfying itself of the fact that the partition in
issue shall be beneficial for the interests of the minor or that such partition is necessary to
shield the minor from some impending peril. Experts in the field of Hindu law have pointed
out that this provision loses its relevance when examined in the context of the costs and the
time which have to be borne. The next friend will have to shoulder substantial expenses till
the time the minors? interest is actually partitioned off. Above all the dilatory procedures of
the Indian Courts make the task of partition all the more cumbersome. It may also be noted
that in certain cases the next friend so chosen to proceed on behalf of the minor may be
motivated by his own vested interests rather than the benefit of the minor. In such a case
colossal damage may occur to the interests of the minor. So the questions of costs, time,
17
credibility of the next friend etc. are worth pondering over, before we can actually say that
Hindu law makes no sort of distinction between major and minor coparceners in respect of
their rights in the joint family estate. Minority is no bar to seek partition. but a minor can not
seek partition directly. He can institute a suit for partition through a next friend in a court of
law.
Here the court will take cognizance of the situation and would enforce partition only
when it is satisfied that the partition would be beneficial to or promote the interests of the
minor. But where it comes to the conclusion on the basis of the facts before it, that the
interest of the minor are being adequately taken care by the other coparceners or father, no
partition will be effected. A partition by agreement though entered into during the minority of
the coparcener, is binding on the minor, unless it is unfair or prejudicial to his interests.
Examples of situations where court may pass a decree for partition ,include where an adult
coparcener in possession of the family property is wasting the property, or denies the minor’s
rights, or declines to provide for the minor’s maintenance.
However The Supreme Court pointed out in Kakumanu Peda Subbayya v
Kakumanu Akkamma 11, that decree of court merely renders the suit by friend of the minor
effective by deciding that what the next friend had done was for the benefit of the minor. In
doing this the court overruled various high court cases which had held that the power to bring
about a division between a minor and his coparceners rests only with the court and not with
any other person. Instead the SC held that when a court decides that a suit for partition is
beneficial to the minors it does not itself being about a division in status. The court is not in
the position of a super guardian of a minor expressing on his behalf an intention to become
divided. That intention is, in fact, expressed by some other persons, and the function which
the court exercises is merely to decide whether that other has acted in the best interest of the
minor in expressing on his behalf an intention to become divided.
A minor after becoming of age can reopen the partition if he can prove that the
partition was not for his benefit or it was unfair with regard to him. This can best be
explained with the help of the case of Ratnam Chettiar v SM Kuppuswami Chettiar12. In
this case two brothers made a partition and that time plaintiffs were minors. Under the
partition deed both immovable and immovable property were divided with the help of family
auditor of one brother. Plaintiff here alleged that partition was secured by practicing fraud

11
Kakumanu Peda Subbayya Andanother vs Kakumanu Akkamma And Another on 4 September, 1958
12
Ratnam Chettiar & Ors vs S. M. Kuppuswami Chettiar & Ors on 18 September, 1975

18
and undue influence and by suppressing large assets belonging to the family which were
taken by their uncle by taking advantage of the weakness of the plaintiff’s father who was a
person of weak intellect.
As per trial court partition of movable properties was concerned which was done by a
separate document and was severable from the partition of movable properties, was neither
unjust nor unfair so as to entitle the minor to reopen the partition after a long period. The
same was confirmed by the high court. the high in the present case made a slight variation in
the decree issued by the trial court by setting aside the directions of trial court for the
appointment of a commissioner and by quantifying the value of the disparity in the share of
the plaintiffs, by itself. The Supreme Court here, as regards immovable property rejected to
reopen the partition even though the properties were not actually valued according to the
market rate and a notional valuation had been given in the partition deed. Supreme Court took
this view due to its policy of not interferring with concurring finding of two courts below.
With regard to partition of movable property the hon’ble Supreme Court after making a
detailed study also reached the same conclusion that it was an unequal partition and the
silence of the father or even his acquiescence in allowing his elder brother to swallow the
amount was not a prudent act and it had caused serious detriment to the interests of the
minors which he had to protect, because the minors at that time were members of the Hindu
undivided family.
A similar problem came up beforee the Supreme Court in the case of Sukhrani v
Harishankar13. Here plaintiff was minor at the time of institution of suit for partition. In the
present case there were originally three brothers who carried out the Bidi manufacturing
business. After the death of one of them, the same was carried out by remaining two brothers.
However in 1948 Mannulal represented to his brother that in order to avoid tax there should
be nominal partition between them and upon this the joint family business was converted into
a partnership. Here Mannulal’s share was 10 Ans. 8 Ps. And that of Rajaram was of 5 Ans. 4
Ps. Later Babulal and Sunderlal were also shown as partners. Even the house belonging to the
family were divided where Mannulal took 2/3rd share and Rajaram took the rest. On these
allegations the plaintiff filed the suit. It was argued on the behalf of defendant-appellant that
the partition could not be reopened since there was no fraud or misrepresentation and since
unequal shares had been voluntarily accepted, it was binding on the parties.it was also

13
Sukhrani v Harishankar on 1 December, 2005

19
pointed out that the plaintiff and his brothers were effectively represented by their father
therefore partition can not be opened merely on the ground of inequality of shares.
However the Supreme Court referring to the case of Ratnam Chettiar v SM
Kuppuswami Chettiar held that even though there was no fraud or misrepresentation or undue
influence, a partition could be reopened at the instance of minor coparcener despite the fact
that his branch was represented by his father at the partition, if the partition was unfair or
prejudicial to the interest of minor. In the case of Balabux v Rukhmabai14. it was held that a
reunion could take place only between the parties who were parties to the original partition, it
seems that a minor can not reunite , since minor has no capacity to contract. Similarly in case
of Balasubramaniam Reddy v Narayana Reddiar15, it was held that reunion is product of
agreement and minor is incompetent to contract therefore an agreement can not agree to
reunite. However it must be remembered that as it is open to father and mother as his
guardian to effect a separation on behalf of the minor coparcener, it would be equally open to
the father or mother as his guardian to agree to a reunion on behalf of the minor. The Madras
High Court favoured this view in Babu v Govinddass16.
A minor male(coparcener) may also act as a Karta through his legal guardian till he
becomes a major. The Karta, being the Head of the Joint family; act on behalf of the joint
family. The position of the Karta is "Sui generis". Sui generis in the sense that his position is
not that of the Manager of a Commercial Firm and his relationship with the other members is
not that of the Principal and Agent or Firm and Partners. However, the powers of Karta are
not absolute or unlimited. Within the ambit of his sphere, he possesses such vast powers,
which no one can possess.

10. CAN A MINOR COPARCENER BE SUBJECT TO ANY LIABILITIES OF JOINT

FAMILY :
It is generally presumed that money required for carrying on family business is a
family necessity and that the business is carried on with the consent or acquiescence of all the
members of the family. Thus, if debts are incurred by the Manager in the ordinary course of
the family business, all the coparceners become liable. However, their liability is limited to
the extent of their interest in the family property and not beyond that. No doubt, the adult
coparceners become personally liable when they themselves are actually contracting parties
14
Balabux v Rukhmabai, on 12 August, 1912
15
Balusami Reddiar, Minor By Guardian, ... vs Balakrishna Reddiar, Minor And Ors. on 23 April, 1956
16
Babu Alias Govinddoss Krishnadoss vs Gokuldoss Govardhandoss And Ors. on 30 April, 1929

20
along with the Manager, or if they ratify the contract entered into by the Manager, except in
the case of a minor coparcener, who does not become personally liable unless the contract is
ratified by him after attaining majority.

11. CONCLUSION :
Indian Hindu Law does not put any difference between minor coparceners and major
coparceners, in respect of their rights in the joint family property and its enjoyment. The
rights of both the major and minor coparceners stand identical to each other with no points of
distinction at all. So it is clear beyond doubt that minor coparcener enjoys a right of
partition. A major coparcener can effect a severance or partition at his will. But the minor
coparcener cannot of his own will cause himself to be separated nor can he authorize anyone
on his behalf to separate him. The only option which is available to the minor is to institute a
proceeding through his next friend and thereafter the Court can pass a decree after satisfying
itself of the fact that the partition in issue shall be beneficial for the interests of the minor or
that such partition is necessary to shield the minor from some impending peril. Experts in the
field of Hindu law have pointed out that this provision loses its relevance when examined in
the context of the costs and the time which have to be borne. The next friend will have to
shoulder substantial expenses till the time the minors? interest is actually partitioned off.
Above all the dilatory procedures of the Indian Courts make the task of partition all the more
cumbersome. It may also be noted that in certain cases the next friend so chosen to proceed
on behalf of the minor may be motivated by his own vested interests rather than the benefit of
the minor. In such a case colossal damage may occur to the interests of the minor. So the
questions of costs, time, credibility of the next friend etc. are worth pondering over, before
we can actually say that Hindu law makes no sort of distinction between major and minor
coparceners in respect of their rights in the joint family estate.

21
REFERENCES :

1. S.R Roy; Joint Property and Partition; Kamal Law House(2019)

2. Poonam Pradhan Saxena, Family Law II Lectures, Lexis Nexis, (3rd Edition) 2020

3. RK Aggarwal, Hindu law, Central Law Agency, (25th Edition) 2016

4. Donald R. Davis Jr. Dharma in practice: Acara and authority in Medieval Dharam

shastra, Journal of Indian Philosophy, 2004.

5. https://www.lexology.com/library/detail.aspx?g=75cc6bed-c424-47de-b17e-

4715cb8b2872 Last visited on 05.10.2024, 08.10 pm

6. https://www.iilsindia.com/study-material/112019_1646647119.pdf Last visited on

06.10.2024,09.00pm.

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