Partition and reunion of HUF Under Hindu Law 

Meaning of Partition

The word partition or division legally means a division of interest or a division of possession or both. Any division of property between co-owners, resulting in individual ownership of the interests of each, is called a partition. On partition, the joint status comes to an end, giving existence to nuclear families or different joint families. There are two types of members of the joint family. Members of the joint family can seek partition and are entitled to a share. The members of the joint family who have no right to partition are entitled to share if partition takes place.

Voluntary or Compulsory Partition

Partition may be either voluntary or compulsory. Voluntary partition is when all owners agree to divide the property themselves. In such a case, each co-owner owns a part of the property and ceases to have an undivided interest in the whole. When the co-owners cannot agree to a voluntary partition, a suit has to be instituted to compel the partition to sever property interests. In such a case, the partition must be made even if every other owner objects to it. A tenant in common or a joint tenant has the absolute right to seek a compulsory partition.

Total or Partial Partition

Under Hindu law, a partition can be done either in total or partial. In the case of total partition, all the members cease to be members of the HUF, and all the properties cease to be properties belonging to the said HUF It is to be noted that partial partition may be partial, vis-a-vis properties and members both. In the case of partial partition, some of the members go out on partition and other members continue to be the members of the family (HUF). It may be partial where some of the properties are divided among the members and other properties continue to be HUF properties also.

According to the Mithakshara school. partition is the ascertainment of individual rights in a joint family. The interest of the coparcener is not a definite interest until a partition takes place. The coparcener should not be able to alienate his share till partition. A coparcener cannot validly dispose of his coparcenary interest by will except when he is the sole surviving coparcener. A Mithakshara coparcener may wish to execute a will. He may desire to prevent the operation of the rule of survivorship. So on his death, his interest in the family property might devolve on his own heirs. The easy way of getting divided from the joint family is a unilateral declaration of division in status. It has been clarified in the following case.

Ragbavamma v. Chenchamma [AIR 1964 SC 136]

There were two coparceners A and his brother’s son B. A executed a will. He declared that he had resolved to become separated from B. A sent a written notice to B to become separate was mentioned. But 4 died before B received his notice The legatees under the will claimed the property. This claim was resisted by B. B contented that by the rule of survivorship, he was entitled to the property The question was whether the will executed by A was effective. It would be effective only if before his death, A had become divided in status.

When it is communicated, it becomes effective with retrospective effect. It means, from the date the intention was manifested There is no division in status, if he dies before the intention is communicated In this case, he did not die as a divided member. This rule of survivorship operated. Hence, his will was ineffective In the case of a minor coparcener. his guardian may make the unilateral declaration on behalf of the minor. However, it is for the Court to determine whether it was beneficial to the minor or not.

Notional Partition

According to Section 6 of the Hindu Succession Act. 1956, where a Hindu male dies intestate on or after 17th June 1956. having at the time of his death an interest in a Mitakshara coparcenary property leaving behind a female heir of the class-l category, then his interest in the coparcenary property shall devolve by succession under that Act and not by survivorship. The interest of the deceased will be carved out for devolution as if a notional partition had taken place before the death of the deceased. This is the concept of notional partition

 

 

What is the Effect of Partition?

Once the partition is over, the joint status of the undivided family comes to an end and it gives existence to nuclear families or different joint families. The effect of the partition depends upon the nature of the partition.

Effects of Partition

The effect of partition can be discussed under two heads:

1. Partial partition and
2. Total partition.

The divided coparceners become absolute owners of their respective properties, They will have the full power of alienation in the case of partial partition because they will be absolute owners for partitioned properties. However, they will have no rights of alienation in respect of joint family properties which are not partitioned. In the case of total partition, all the members cease to be members of the HUF, and all the properties cease to be properties belonging to the said HUF It is to be noted that partial partition may be partial vis-a-vis properties and members both.

In the case of partial partition, some of the members go out on partition and other members continue to be the members of the family (HUF). It may be partial where some of the properties are divided among the members and the other properties continue to be HUF properties

Reopening of Partition

The general rule is that once a partition is affected, subsequently of partition does not arise. According to Manusmriti also, partition in a joint family can be done once only, However. there are some exceptions to this general rule.

1. Subsequent sons or after-born sons.
2. Adopted sons.
3. Minor coparcener.
4. Fraud.

Subsequent Sons (or) After-Born Sons

The wife of the coparcener may be pregnant at the time of the partition. After the partition, if the wife of the coparcener gives birth to a son, he would be entitled to a share as a coparcener. He can reopen the partition if his share has not been reserved.

However, it is to be noted that in the case of a son born as well as begotten after partition, if his father has taken a share for himself and separated from the other sons, then the after-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.

Adopted Sons

After the partition, if the coparcener’s widow makes an adoption, the adopted son could reopen the partition, He can do so only when his share has not been allotted as such adoption relates back to the date of his father under the Adoption and Maintenance Act, 1956.

Minor coparcener

If the minor coparcener’s interest is not properly safeguarded, he may ask to reopen the partition.

Fraud

The partition can be reopened if the partition was spoiled by fraud. But the actual fraud must be discovered.

Mistake

At the time of the partition of joint family properties, some properties may be left out by mistake. In such circumstances, the partition can be reopened in respect of properties left out at the time of partition.

Reunion After Partition

Reunion means rejoining as a joint family after the partition is made. The Dayabhaga school and Dravida school permit reunion after partition. However, parties to the reunion must be father and sons, brother’s paternal uncle, and nephews. The reunion is also permissible under the Mayukha and Mithila schools. But reunion parties must be parties to the original partition.

Bhagwan Dayal u Reoti Devi mAIR 1962 SC 287]

The Supreme Court held that for a reunion there should be an express or implied agreement between the parties to a reunion in an estate. The policy of the law is sound and for the reasons that the Hindu joint family is described as an institution. Partition and reunion after partition should not be restricted because they affect the status and the strength of the interested parties in such institutions.

 

Who is entitled to demand partition?

Partition is a process in which, and by which, a joint enjoyment of the property is transformed into enjoyment in severalty among sharers. Any division of property between co-owners, resulting in individual ownership of the interests of each, is a partition. On partition, the joint status comes to an end, and it gives existence to nuclear families or different joint families.

There are two types of members of the joint family. First, members of the joint family who can seek for partition and entitled to a share, and, second, members of the joint family who have no right to partition, but if partition takes place, they are entitled to share.

The partition of a joint Hindu family may have resulted at the instance of the following persons:

1. Sons and grandsons (son, a grandson, and a great-grandson),
2. Illegitimate sons,
3. Adopted son,
4. After-born sons,
5. Minor coparcener
6. Alienee,
7. Widows,
8. Female sharers and
9. Daughters.

 

Sons And Grandsons (Son, a Grandson and Great Grandson)

According to the Mitakshara grandson, as well as every other adult member of the can demand a partition. The consent of the other members is not a son, a grandson, and a great coparcenary necessary. The Supreme Court in Puttorangamma v. Rangamma [AIR 1968 SC 1018] held that a suit for partition and separate possession of ancestral joint family properties by one of the coparceners is maintainable even if their father is joint with his brother and is not willing and does not consent to such a partition.

A son can demand partition during the lifetime of his father’s hindrance. This view was again supported by the Bombay High Court in its latest pronouncement.

Illegitimate Sons

An illegitimate son among the three upper classes (son, a grandson, and a great-grandson) does not have any vested interest in the property. Hence, he cannot make a demand for partition, although he is entitled to maintenance out of the estate of his father. enforce a partition, However, an illegitimate son of a Sudra against his illegitimate brothers but not against his father or his father’s may coparceners.

Adopted Son

Since adoption is permitted in Hindu law, an adopted son is entitled to demand a partition any time after adoption as if he is a natural son of the family. If a natural son is begotten after the adoption although the adopted son was to be treated at par with the wife and the natural son, yet the quantum of his share in the joint family property differed in different schools. The Hindu Adoption and Maintenance Act, 1956, has removed the discrimination so that the adopted son gets an equal share to that of the natural-born son on the partition.

After-Born Sons

The right of partition of after-born sons can be discussed under two heads:

1. Those born as well as begotten after the partition and
2. Those born after partition but begotten before it.

Son in the Womb of His Mother

A son who existed in the womb of his mother is treated in law in existence as on the date of partition. As such the partition to receive a share equal to that of his brothers. In the case of a son born as well as begotten after if his father has taken a share for himself and separated from the other sons, then the after-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. is entitled to reopen partition,

Minor Coparcener

A minor coparcener is also entitled to demand for partition in case the joint status does not remain beneficial to his interest. He cannot institute a suit directly as he is a minor. However, his minority or the minority of other members of the family would not be a hindrance to demand for a partition by him. If the partition has already taken effect detrimental to his interest, he could challenge it on attaining majority.

 

 

Alienee

An alienee of a coparcener’s interest has a right to demand However, he cannot claim such right in all cases. He has entitled if the transfer is valid. In Smt. Kailashpati Devi v. Smt. Bhuwaneshwari Devi (AIR 1984 SC 1802], the Supreme Court held that the purchaser of joint family property from a member of a joint Hindu family may have the right to file a general suit for partition against the members of the joint family and that be the may adopt to effectuate his purchase. the proper remedy for him to

Widows

A widow is not a coparcener under Mitakshara law. She can still claim for a partition of the joint estate under the Hindu Womens’ Right to Property Act, 1937.

Female Sharers

For the purpose of the right to partition, female sharers, include (1) the wife, (2) widowed mother, and (3) paternal grandmother. In general, these female sharers have no right to demand a partition. However, they are entitled to get their share when the joint family property is actually divided on a partition.

Where a suit for partition filed by a coparcener has been withdrawn, the female sharer will not be entitled to continue the suitor to press a demand of his share. Further, it is to be noted that the female sharers would not be entitled to any share in the property so long the actual partition is not affected. Section 23 of the Hindu Succession Act, 1956, postpones the right of female heirs to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein.

Daughters

Prior to the passing of the Hindu Succession (Amendment) Act, Hindus. 2005, the daughters are not regarded as sharers among Hindus. Now the position has been changed after omitting Section 23 of the Principal Act by the Hindu Succession (Amendment) Act. Now daughters have the same rights as sons to reside in and to claim for partition of the parental dwelling house.

 

Does partition amount to a transfer of property?

Partition is a process in which, and by which, a joint enjoyment of the property is transformed into enjoyment in severalty among sharers. No outsider enters in such a process. Such a process cannot be considered as a transfer of property Act. property within the meaning of the

In the case of CED v. Kanhlal Trikamlal [[1976] 105 ITR 92, 101 (S.C.)], it was observed that partition is really a process in which and by which a joint enjoyment of the property is transformed into enjoyment in severalty. Each one of the sharers has an antecedent title, and therefore, no conveyance is involved in the process, as confirmation of a new title is not necessary. This decision is an authority for the proposition that no conveyance is required for a partition, but not for whether there is a transfer involved in a partition.

In the case of Kalooram Govindram v. CIT [1965] 57 ITR 335 (S.C.), the Supreme Court did not give any opinion as to whether a partition constitutes a transfer within the meaning of the Transfer of Property Act. But according to Andhra Pradesh High Court, in the case of Dwarka Prasad v. CED [1968] 67 ITR 281 (AP), the Supreme Court in 57 ITR 335 has given final authority that in partition there is no transfer.