This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with the Partition and division of rights and property at the time of partition.
Partition is the division and division of the Hindu Joint Family, which brings the life of a coparcenary to an end. According to Mitakshara School, partition means two things,
- Severance of status or interest
- the actual division of property by the shares so specified, known as division by metes and bounds. According to the Dayabhaga School of Hindu Law, partition means only the division of property by metes and bounds. At least two coparceners are required to be partitioned.
Subject Matter of Partition
Only the coparcenary can be separated into the partition. Separate resources can not be subject to partitioning. To determine which property is available for partition, the following provisions must be made for joint family debts;
- the personal debts of the father, not contaminated by immorality.
- Maintenance of dependent female members and disqualified heirs.
- Marriage of unmarried daughters.
Kinds of Property Partitioned
1. Self-Acquired Property
Self-acquired property is the property that a person acquires from his own hard-earned money and is not inherited from his forefathers. Any land obtained by donation or may also be deemed to be a self-acquired land. Self-acquired property can not be partitioned during the lifetime of the person who acquired it. A person who has acquired the property may, in his lifetime, make a Will to whom he wants to give his property. If the owner of the property dies without leaving a will, the property is transferred to the heirs of Class 1.
2. Ancestral Property
Any property acquired by the forefathers of a person shall be regarded as ancestral property. This property must be four generations old.
A person who is born in that family has a vested interest in the land, which means that, by his birth in the family, he has inherited the land and that property can be divided.
Property Liable for Partition
- Indistinguishable property, i.e. property which comes down to one member only, either by custom or by any provision of law or by terms of the grant.
- Indivisible property by nature, e.g. ponds, stairs, passageways.
- Family idols and trusts that are the object of a warship
- Separate property of a member
- Places of worship and devotion or land devoted to religious and charitable purposes.
- The ornaments and the clothing materials are given to the wives of the coparceners.
Deductions and Provisions
Certain provisions must be made on the partitionable property before any partition is affected.
- Debts incurred by the joint family.
- Personal debts of the father have not been incurred for illegal or immoral purposes.
- Maintenance of female dependents and disqualified heirs.
- Marriage of unmarried daughters of the last male holder, but not of collateral.
- Expenses for the funeral ceremony of the widow and mother of the last male holder.
Common Misconception related to Property Partition
- The very first myth in people’s minds is that there might be a Will in the case of Ancestral Property that is not real. In the case of Ancestral Property, a person has a vested interest in it, that is, by giving birth to him in that family, he has the right to property. This kind of property is divided according to the laws of that particular religion. A Will can not be made in such cases, Will shall be made in the case of self-acquired property
- The second misconception borne by people is that the nominee becomes the owner of the property once it is transferred to the nominee. This is not the case, however. The candidate is the trustee of the house.
Persons who have a Right to Partition and Share
The following persons may claim partition and have the right to participate in the partition-
- Father– In Mitakshara school, the father not only has the right to partition, but also the power to divide the sons. The father may also impose a partial division between the sons, but he must act bona fide and not unfair to anyone. A re-opening suit, a partition can take place in the event of partiality or an unfaithful partition by the parent.
- Son, grandson, great-grandson– Under Mitakshara school, son, grandson, and great-grandson have the right to seek a partition.
- Son born after partition – According to Vishnu and Yajnavalkya, the partition should be re-opened to give a share to the son born after partition. However, Gautama, Manu, Nerada had a different view of the same thing.
Before the 2005 amendment, females could not be coparceners, but some females, such as the mother, the father’s wife, and the grandma, had the right to share at the time of the partition.
- In Pachi Krishnamma v. Kumaram, in this case, the daughter asserted his share as equal to that of the son in the division of joint family property, but failed to prove her claims that the daughter should have the same share as the son. However, following the 2005 amendment to the Hindu Succession Act, it gave the power to a daughter to have the right to seek partition and to claim an equal share as a son in the partition of the joint family property.
- In Danamma, Ors. V. Phulavati & Ors, in the case of 1 February 2018, the Hon’ble Supreme Court of India held that: “Filles have equal rights in ancestral property even though they were born before the enactment of the Hindu Succession Act.”
It can, therefore, be concluded that partition is a tool that performs the function of bringing the common Hindu family to an end. Through, a partitioning process, the joint family property is the self-acquired property of each coparcener based on its shares. Partition may be rendered either by dividing the property by metes and bounds or by the division of the joint status or by both. Precisely, the division takes place in the true sense only when the collective status of the Hindu Undivided Family comes to an end.
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