Partition under Mitakshara Law

  

 

Q. 29. What is meant by partition under Mitakshara law? How is it affected? Can a partition be re-opened?

 

Ans. Mitakshara Law of Partition.-According to the Mitakshara, no individual member in the coparcenary property has any specific share in the property so long as the family is joint. The coparcenary property is owned and possessed by the whole body of coparceners. Each coparcener is the owner of the whole coparcenary property and each part thereof without excluding the ownership of others. If, anyhow, the specific share of an individual member is ascertained then it takes away from it the character of being joint and undivided. Hence Mitakshara defines partition as :

 

"The partition is the ascertainment of individual shares in the aggregate wealth where there are many owners."

 

The Privy Council in Approvier v. Rama Subba, (1866) 11 MIA 75 held that under Mitakshara law actual partition by metes and bounds is not necessary for completion of division of right; an agreement by the members to hold their property in defined shares, without actually severing and dividing it, takes away from it the character of being joint and undivided; the joint tenancy is severed and converted into a tenancy-in-common; it operates in law as a conversion of the character of the property, and in alteration of the title of the family, converting from a joint to separate ownership and is sufficient in law to make divided family and to make a divided possession, without actual partition of the subject-matter."

Under the Mitakshara law, to effect partition the division of the property by metes and bounds is not necessary, the ascertainment of individual shares is enough.

According to the Mitakshara, 'vibhaga' (partition) is the adjustment of the diverse interest regarding the whole, by distributing them into particular portions of the aggregate." Nowhere in the Mitakshara is it stated that an agreement between all the coparceners is essential to the disruption of the joint status or that the severance of rights can only be brought about by the actual division and distribution of the property held jointly. If this were so and there were minors in a joint undivided family, partition would be impossible until all of them attained majority.

Partition may be defined under the Mitakshara Law as, "The crystallization of the fluctuating interest of a coparcenary into a share in the joint family estate".

 

According to Mitakshara, partition is used in two distinct senses; firstly, the adjustment into specific shares the diverse rights of the different members according to the whole of family property; secondly; the severance of joint status, with the legal consequences resulting therefrom.

 

For severance in status: (i) there must be an unmistakable manifestation of intention to be divided;

 (ii) no division by metes and bounds is necessary;

 (iii) existence of property is not essential;

 (iv) the reasons for the severance are immaterial; and the existence of minors is no bar.

Modes of effecting Partition

 

Partition, under Mitakshara law, is a severance of joint status and as such it is a matter of individual volition. Assent of other coparceners is not necessary to effect partition. The jural basis of effecting partition has been expounded by the early writers of Hindu Law. Mitakshara states:

 "Partition of the ancestral estate takes place at the desire of the son."

 

The Privy Council in Syed Kasam v. Jorwar Singh, AIR 1922 PC 153 held that under Mitakshara Law:

 

"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."

But the Supreme Court in Raghavamma v. Chenchamma, [AIR 1964 SC 136] laid down that to effect partition there should be an unequivocal declaration of intention to separate, and that this declaration of intention to separate must be communicated to the other co-parcener to be effected.

At whose instance can partition take place

The partition of a joint Hindu family may take place at the instance of the following persons:

(1) Every adult coparcener: Under Mitakshara Law, the right of every adult coparcener to demand a partition even against the consent of others has been fully recognised.

(2) Sons and grandsons: Sons, grandsons and the great-grandsons have a right to demand a partition. However, in Bombay, a son is not entitled to ask for partition in the life time of his father Without his consent when the father is not already separated from his own father or brothers and nephews.

 

(3) After born sons: After born sons may be considered in two sets: (i) those born after-partition but begotten before it ie, those in their mother's womb at the time of the partition (sons en ventre sa mere) is treated, in law, no existence and is entitled to reopen the partition to receive as share equal to that of his brother; (ii) in the case of a son born and begotten after the partition, if his father has taken a share for himself and separated from the other sons, the after begotten and born son is entitled to his father's share at the partition and also his separate property to the exclusion of the separated sons and is not entitled to reopen the partition.

 

(4) Widows: A widow though not a coparcener under the Mitakshara Law, can claim a partition of the joint estate in the right of her deceased husband as his Ardhangi.

(5) Adopted Son: An adopted son like a natural born son would be entitled to demand a partition any time after adoption.

(6) Minor coparcener : A minor coparcener is also entitled to effect a partition in case the joint status does not remain benefited to his interest. He cannot file a suit himself but any other person on his behalf can file such a suit.

(7) Purchaser of Undivided Coparcenary Interest: A purchaser of the undivided coparcenary interest of a coparcener at a sale in execution of a decree can demand partition and according to the Bombay and Madras Schools of Mitakshara, a purchaser of an interest of a coparcener by a private sale can also demand partition.

(8) Female Sharer: The term female sharer includes three types of female members of coparcenary viz. (i) the wife, (ii) widowed mother, and (iii) paternal grandmother. These female sharers cannot demand a partition, nor can they claim a share upon a mere severance of the joint family status. They are, however, entitled to get their share only when the joint family property is actually divided. Further the well established rule of Hindu Law is that when a partition takes place between the sons, the mother is entitled to a share equal to that of a son.

 

 

 

The partition is effected by the following modes:

 

1. By a mere declaration to separate. -Any member entitled to get partition may communicate to other member his intention to separate by express declaration or by conduct.

 

2. By notice.-The member desiring partition may give notice to the other members and karta. The partition will be deemed to take place from the date of despatch of the notice and not when it is received.

 

3. By agreement. -A partition may be effected by an agreement between all the members entitled to get share in the joint family property. The agreement may be either oral or in writing. The partition under Mitakshara is effected on the severance of joint status, the allotment of shares may be done later However in Palani Ammal v. on. Muthuvenkatachala, AIR 1925 PC 49 it has been held that there must be a clear indication of the intention of the parties to the agreement to separate. Mere ascertainment of shares without the intention to separate does not work to severance.

 

4. By execution of a deed. -The partition may be effected by the execution of deed where the adult coparceners execute the deed. In Murarka Properties (P) Ltd. v. Behari Lal Murarka and others, AIR 1978 SC 300 a  coparcenary consisted of eight brothers and their descendants. They were all adults. They formed a company consisting of brothers and their descendants. The entire family properties were transferred to the company by executing a document. They recited in the document that they were separate. The Supreme Court held that a division of status was effected from the date of document itself.

 

5. By arbitration. -An arbitrator may be appointed by agreement of the members to make partition of the family property. The family will be deemed to be partitioned from the date of the agreement, notwithstanding that no award has been made by the arbitrator.

 

6. By the institution of a suit.-If an adult member of the family institutes a suit for the partition, then this is clear intimation of his intention to separate. There is severance of joint status from the date when the suit is instituted. The joint family deemed to be partitioned from the date of the filing of the suit and not on the decision of the suit. If plaintiff dies, after the institution of the suit but before decree is passed, then his interest will be inherited by his own heir as his separate property.

But if a suit is filed by a minor member through his next friend, then the family is deemed separated from the date of the suit, on the condition that the Court is satisfied that the suit was filed for the benefit of the minor. If the Court comes to the conclusion that the partition is not for the benefit of the minor, then partition will not be allowed. But once the court gives the judgment that the proposed partition is for the benefit of the minor-plaintiff, the severance of status takes place from the date of the institution of the suit. [Peda Subhayya v. Akkamma, AIR 1958 SC 1042]

 

7. By conversion to another religion.-If a member of the joint family converts to non-Hindu religion, then he will be considered separate from the joint family from the date of conversion. He is entitled to get his share from the joint family property. Though the conversion affects his severance from the joint family, but it will not be presumed that the other members have also become separate.

 

8. By marriage under the Special Marriage Act, 1954.-If a member of a Hindu joint family solemnizes the marriage under the Special Marriage Act, then he will be deemed to effect his severance from joint family. However he will be entitled to receive his share in the joint family property which stood at the date of the marriage.

The above modes of partition are not exhaustive. The partition may be effected if an unequivocal intention for partition is indicated by any other mode.

Reopening of partition

 

Manu says, "Once a partition made, once a girl is given in marriage and once does a man say "I give these three are done once for all and are irrevocable."

 

This is a general rule, that partition once effected is final and cannot be re-opened, except in special circumstances. In the following cases, the partition may be re-opened:

 

1. Son or daughter in womb.-If a son who was in his mother's womb at the time of partition but is not born at that time and no share has been reserved for him, then the son thus born can get the partition re-opened. But if he was not in the womb at the time of partition, then he will not be entitled to get the partition re-opened if he is born after partition. Such born son is entitled to succeed to his father's share and to his separate or self. acquired property to the exclusion of the divided sons. It seems that after the commencement of the Hindu Succession (Amendment) Act, 2005, the same rule applies if a daughter was in her mother's womb at the time of partition but is not born at that time and no share has been reserved for her.

 

2. Son-conceived and born after partition.-If a son is conceived and born after partition, and the father had not taken any share for himself in partition, then the after-born son can get the partition re-opened. It seems that after the commencement of the Hindu Succession (Amendment) Act, 2005, the same rule applies if a daughter is conceived and born after partition, and the father has not taken any share for himself.

 

3. Partition being prejudicial to the interest of minor.-A minor can get the partition re-opened, if the partition was made during his minority and it was unfair or prejudicial to his interest on attaining majority.

 

In Smt. Sukhrani v. Hari Shankar, AIR 1979 SC 1436 the Supreme Court held that if the partition was vitiated by fraud, misrepresentation or undue influence or if it was unfair or prejudicial to the interest of a minor, then it can be set aside even if the minor was represer.ted in the partition by his father.

 

4. Presence of fraud at the time of partition.-If the member of the joint family had committed fraud or fraudulently concealed any property during the partition, the coparcener is entitled to get the partition re-opened.

 

5. Absent coparcener.-If a coparcener was absent for a very long time and he appears after partition, then he may get the partition re-opened on his appearance.

Consequences or Effects of Partition (Importance of Partition)

The consequences or effects of partition are as under :

 

(1) Where the partition is general the undivided family as a unit comes to an end; where the partition is partial, the members of the joint family who severed themselves from the unit lose the joint status they had previously enjoyed as members of that particular family.

 

(2) A sharer may separate himself from other collaterals but he continues to be joint with his own male issue. Under these circumstances the property which he received while separating continues to retain in his hands in character as a coparcenary property with reference to his sons.

 

(3) Where partition takes place by conversion to other non-Hindu religion or by marriage under the Special Marriage Act, severance is effected between him on one hand and the rest of the family on the other.

 

(4) Partition automatically alters the character of the property of the family. The particular joint tenancy known to Hindu Law gives place to a tenancy-in-common of the dividing or separating members.

 

(5) On the death of a separate member his share devolves not by survivorship but by heirship.

 

(6) Partition does not annul the final or other relations and does not disturb the rights incidental to such relation such as the right to inherit.

 

(7) The ancestral business loses its character as such on separation. And the consequence that follows is that it becomes subject to the provisions of the Partnership Act- and the father does not remain competent to bind his sons by debts incurred by him after partition.

 

(8) After partition the father as the manager of the joint family cannot extend limitation in regard to a pre-partition debt by means of part payment or endorsement.

(9) Wife, mother and grandmother are entitled to a share in joint property in case there is a partition between male members. But they are not entitled to any such share until the property is divided by metes and bounds.

(10) A divided member can make a gift or dispose it by will or alienate it for value like his separate property except where he continues to be joint with his own male issue.

Family arrangement

 

A family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.

A family arrangement among Hindus is a well known and recognized mode of division of joint family property. It may be made orally also and the court would not ignore such settlement on the ground that it is not permissible in law.

 Points of difference between the partition and the family arrangement :

(i) Family arrangement can never be an unilateral act but, partition may be effected by an unilateral declaration.

(ii) A family arrangement is concluded with the object of setting a 'bona fide' dispute arising out of conflicting claims to property. However, partition is not necessarily a compromise of conflicting claims.

(iii) A widow or other limited owner or a manager can enter into a family arrangement with persons who are not coparceners; whereas coparceners alone can effect partition.

Reunion after partition

 

Reunion is a process whereby two or more members of a Hindu family after once separating, reunite so as to constitute a joint family. In reunion, their intention is of altering their divided status into joint status with all the usual incidents of jointness in estate and interests.

According to Manu as a general rule partition once made is forever and irrevocable. Therefore, the legal consequence of a partition cannot be controlled or affected by the subsequent conduct of parties.

Reunion is, however, an exception to this rule which is based on the text of Brihaspati, which says: "He who being once separated, dwells again through affection with his father, brother or paternal uncle, is termed  re-united".

According to Mitakshara, re-union cannot take place with any person indifferently but with father, a brother or paternal uncle and nephews but not with any other relatives. According to Dayabhaga also, a re-union is valid only with a father, brother or paternal uncle.

There are two conditions of a valid reunion under the Mitakshara law:

(i) The parties reuniting must have been parties to the original partition.

(ii) A member once separated can reunite only with his father, brother or paternal uncle; but not with any other relative.

There can be no reunion unless there is an intention to reunite and to re-invest the members with the former status of members of a joint family. To constitute a reunion there must be an intention of the parties to the reunion in estate and interest and to remit them their former status as members of a joint family. But possession of family properties at the time of reunion is not essential. A minor cannot reunite because he is not competent to contract.

No writing is necessary for a reunion. It may take place by a verbal arrangement that there must be an intention to reunite. Mere living and carrying on business together is not conclusive evidence of reunion.

Reunion restores the undivided status of the re-uniting members with usual rights if no partition had taken place.

The following are the effects of reunion,

(1)    There is no difference in coparcenary by birth and coparcenary by reunion. The special rules of inheritance are applicable only to the separate property of the reunited members.

 

(2) The effect of reunion is to remit the reunited members to their former status as members of a joint Hindu family.

(3) The devolution of the interest of a united member is not by survivorship but is governed by special rules.

 

(i) According to the Madras School, the share of reunited member survives to the other members of the reunited family.

 

(ii) According to Bombay School there is separate order of succession as detailed below: (a) son; (b) grandson; (c) great grandson; (d) reunited whole brother; (e) reunited half brother and separated full brother; (f) reunited mother; (g) reunited father; (h) any other coparcener; (i) half-brother not united; (j) mother not united; (k) father not united; (1) widow; (m) daughter; (n) daughter's son; (0) sister.

 

Thereafter the succession goes to the sapindas, samanodakas and bandhus in the normal order of succession. The Bombay High Court is of the opinion that a reunited son is to be preferred to the separated son. Under the Mayukha, the reunited member has in every case preference over the separate member.