What is partition? What are the modes of effecting partition? Who can claim for partition? Under what circumstances partition can be reopened? [ A.P.P.S.C. 1985]

Partition:

Partition is the severance of joint status. In other words, partition means division of the joint family. It refers to both the property and status. Partition under Mitakshara may be defined as - the crystallization of the fluctuating interest of a coparcenary into a specific share in the joint family estate.

The subject matter of partition is coparcenary property. The separate property is not liable to partition as it belongs absolutely to the owner thereof. Certain properties are indivisible in nature like animals or funture, etc. Their value is determined and distributed among the coparceners and some of those property may be enjoyed jointly by them or by turns.

All that is necessary to constitute a partition is a definite and unequivocal indication of the intention by a member of a joint family to separate himself from the family and enjoy his share in severalty.

In the case of a partition, provision should be made for discharge of joint family debts, personal debts not incurred for illegal or immoral purposes, maintenance of dependent female members and disqualified heirs, marriage expenses of unmarried daughters of the last male holder but not of the collaterals.

Modes of effecting partition:

Partition may be effected by:-

1. Institution of suit

i. Suit by adults

ii. Minors suit for partition

2. Agreement

3. Arbitration

4. Conversion and partition

5. Father

6. By notice to other coparceners

1. Institution of suit

i) Suit by adults

The institution of a suit for partition by a member of a joint family is an unequivocal intimation of his intention to separate and there consequently is a severance of his joint status from the date when it is instituted. A decree may be necessary for working out the results of the severance and for allotting definite share.

ii) Minors suit for partition

If on a suit filed by the father and his minor son in which it is contended minor’s mother is the guardian, if it is not in the interest of the minor the suit does not effect a separation of the minor from the rest of the family though it may operate as a separation of the father from the rest of the family.

2. Agreement:

A partition may also be effected by an agreement between the parties. An agreement to separate is not required by law to be in writing However, where the agreement is not in writing or where it is in writing but does not declare on the fact of it what the intention of the parties was, evidence of subsequent conduct of the parties becomes material in order to determine whether there was a partition or not.

3. Arbitration:

An agreement between the members of a joint family whereby they appoint arbitrators for dividing the joint family properties among them amounts to a severance of the joint status of the family from the date thereof.

4. Conversion and partition:

Conversion of a member of a joint family to Mohammedanism or to Christianity or to any other religion operates as a severance of the joint status as between him and the other members of the family. He is entitled to receive his share in the joint family property as it stood at the date of his conversion.

5. Father:

The father of a joint family has the power to divide the family property at any moment during his life provided he gives his sons equal shares with himself and if he does so the effect in law is not only a separation of the father from the sons but a separation of the sons inter se, the consent of the sons is not necessary for the exercise of that power.

6. By notice to other coparceners:

The intention of a coparcener of partition may be expressed by serving notice on the other coparceners and the severance of status takes place from the date when the communication was sent and not when it was received.

Who can claim for partition / right to ask partition:

Every coparcener in a joint family has a right to ask for partition. They are:

1) Father

2) Son, grandson, great grandson

3) Adopted son

4) Illegitimate son

5) Minor coparcener

6) Widowed mother, widowed grandmother, wife, daughter

Under what circumstances can partition be reopened:

Under Hindu law, partition is made only once but there are some exceptions to this rule. A partition may be reopened on the following grounds:

a) Fraud

It may be reopened if any coparcener has obtained an unfair advantage in the division of the property by fraud upon the other coparceners.

b) Mistake

If after partition it is discovered that the property allotted to one of the coparceners belonged to a stranger or that it was subject to a mortgage, such a coparcener is entitled compensation out of the shares of the other coparceners and the partition may if necessary be reopened.

c) Where a portion of joint property was excluded from partition

If a joint family property was excluded during partition, it must be divided amongst the person who took under the partition. It is not necessary in such a case to reopen the original partition.

d) At the instance of a minor

If a partition is proved to be unjust and unfair and is detrimental to the interst of the minors, the partition can be reopened at any time.

Is reunion possible?

When partition takes place in a Hindu joint family, coparcenary gets dissolved and the coparceners have to live separately and individually. After partition, if any two or more members of such joint family/coparcenary reunite together and combine their estates, it is called reunion.

According to Mitakshara, Dayabhaga and Smriti Chandrika, a member of a joint family once separated can reunite only with his father, brother or paternal uncle but not with any other relation as for instance paternal grandfather or paternal uncle’s son though such relation was a party to the original partition.

The reunion has the effect of remitting the reunited members to their former status as members of a joint Hindu family.

Since a minor is not competent to contract, an agreement to reunite cannot be made by or on behalf a minor.