Discuss the partition according to Mitakshara law ? How can it be effected. Discuss the properties which are liable to be partitioned? Who are entitled to a share in a partition ? (b) Whether a partition be re-opened. Discuss.
Ans. (a) Meaning of Partitition — According to Mitakshara Law partition has two distinct meanings. In the first place it means “the adjustment into specific shares the diverse rights of different members according to the whole of family property.” In the second place, it means “the severance of the joint status with the legal consequences resulting therefrom.” Thus, partition under Mitakshara law may be defined as, “the crystalization of the fluctuating interest of a coparcenary into a specific share in the joint-family estate. Each co-owner is deemed to be the owner of the whole, in the same manner as other co-owners are also owners of the whole, the ownership of the one without excluding the co-ownership of the others. This doctrine is known as the doctrine of Ownership in the whole of estate. According to Mayukha, “partition is only a particular condition of the mind, where intention to separate constitutes partition,” It is a process whereby a member of a joint or reunited family becomes separate and ceases to be a coparcener and they become -tenants in common. The question whether the status of the family is altered or not is a question of intention of the parties to be inferred from the instruments they executed or the acts they have done to effect such division. They must intend that their condition as coparceners shall cease. It is not sufficient that they should alter the mode of holding their property. They must alter or intend to alter their title to it; they must cease to be joint tenants and become tenants-in-common. No consent of the other members, nor a .decree of a court or any other writing is necessary for partition. A physical division of the property, in accordance with the share of each coparcener as ascertained at the partition, generally follows and is part of the partition, but is not essence of it, for under the Mitakshara a partition in law is complete even without it, the essence of it being the severance of status which it effects. It is not necessary for a partition to be valid that it should be in respect of the whole of the joint estate, nor is it necessary that it should be among all the coparceners; it may be partial as to both.Where there is no joint-property to divide, there can be a partition by the mere declaration. “I am separate from thee’ for a partition merely indicates a state of mind. Existence of property is not essential for a partition and reasons for severance are immaterial. Division of Right and Division of Property—According to Lord Westburn there are two stages in a Mitakshara partition. The first stage according to him is the ascertaining and fixing with a intention to become separate, the share to which each coparcener is entitled, the second stage is that of actually “making off’ and assigning portions of the erstwhile joint estate to individual coparcener in proportion to the share of each. The first stage has been termed as “division of right” and the second stage is named as the “division of property.” Property which are liable to be partitioned? – Only a coparcenary property is liable to part it ion. Separate property is not liable to partition at all; it belongs absolutely to the owner thereof. In Purnabashi Misra Vs. Raj Kumari Mishra. A.I.R. 1995, Orissa 284 the Orissa High Court held that property acquired subsequently even though with joint funds is to be regarded as self-acquired property and it has to be excluded from partition. Similarly, in Kondirani Vs. Krishna, A.1.R. 1995, S.C. 297 the Supreme Court has expressed its view that properties acquired after severance of the status of joint family cannot be clubbed into joint family properties and therefore cannot be subject-matter of the partition. Property to which the law of primogeniture applies cannot be divided, e.g., a Raj. Nor can family idols and places of worship be divided. Certain kinds of properties are by their nature indivisible, e.g., animals, furniture, etc. Their value may be determined and distributed among the ‘sharers or some of those properties may be enjoyed by coparceners jointly, or by turns. Under this cetegory properties like wills, idols and temple are included. Thus, the following properties are not liable to partition — (i) Impartible property, i.e, property which descends to one member only, either by custom, or under any provision of law, or by the terms of grant. (ii) Property indivisible by nature. (iii) Family idols and relics which are object of worship. (iv) Separate property of a member. According to Manu, “a dress, a vehicle, ornaments, cooked food, water and female slaves, property destined for pious use and sacrifices, and a pasture land sue indivisible.” Thus, there may be several kinds of properties indivisible by nature in respect of which an agreement has to be reached so that they remain in the common use of all coparceners. For Example – stair case, courtyards, tanks, roads, right of way and the like, are incapable of valuation or division. Certain Provisions to be Made– From the property liable to partition, provisions must first be made for — (i) Debts incurred for joint family which are payabie out of joint family property; (ii) Personal debts of the father not incurred for illegal or immoral purposes; (iii) Maintenance of dependent female, members and disqualified heirs; (iv) Marriage expenses of unmarried daughters of the last male holder, but not of the coll atera Is. (v) Expenses for funeral ceremonies of the widow and the mother of the last male holder. Who can Claim Partition ? —Partition of the joint Hindu family properly may take place at the instance of the following persons-1. Sons and Grandsons — Under the Mitakshara Law the right of a son, a grandson and a great grandson, as well as every other adult male member of the coparcenary, to demand a partition even against the consent of others has been fully settled. The Bombay High Court in a Full Bench case has laid down that a son is not entitled to ask for a partition in the lifetime of his father without his consent when the father is not already separate from his own father or brothers and nephews. 2. After-born Sons—After-born sons may be considered in two sets. Firstly, those born as well as begotten after the partition, and secondly, those born after partition but begotten before it or those in their mother’s womb at the time of partition. A son in his mother’s womb at the time of partition is treated, in point of law in existence and is entitled to reopen the partition to receive a share equal to that of his brothers. In the case of a son born as well as begotten after the 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. 3. Illegitimate Sons—An illegitimate son among the three regenerate classes, having no vested interest in the property, cannot demand a partition but he is entitied to maintenance out of his father’s estate. The Madras and the Allahabad High Court have held that the illegitimate son of Sudra may enforce a partition against his legitimate brothers but not against his father or his father’s coparceners, as, for instance, his father’s brother or their sons. 4. Widows—A widow though not a coparcener under Mitakshara Law, under the Hindu Women’s Right to Property Act, 1937, could have claimed a partition of the joint estate. She can claim partition under S. 23 of the Hindu Succession Act. Mere partition of the estate between two widows does not destroy the right of survivorship of each to the properties allotted to the other. In so far as a suit relates to a dwelling bouse, a female heir or heirs are not entitled to have the dwelling house divided if there are male heirs who have not claimed divisions. This rule is available not only to the estate of a deceased coparcener, but also to the estate of a female Hindu dying in testate. 5. Alienee–An alienee of coparcener ‘s interest, wherever such an alienation is valid, has also a right to partition. In Smt. Kailashpati Devi Vs. Si,,!. Bhuivanesivari Devi, A.1.R. 1984, SC. 1802; Supreme Court held that the purchaser ofjoint-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 joint family, and that may be the proper remedy for him to adopt to effectuate his purchase. An execution-purchaser of a member’s interest and purchaser of the same for value in Bombay and Madras is entitled to demand partition in the rights of that member. 6. Female Sharers—The term ‘female sharers’ include three types of female members of coparcenary, namely (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 not on every partition but on some partitions only. S.23 of the Hindu Succession Act, 1956, postpones the right of female heirs to claim partition of the dwelling-house until male heirs choose to divide their respective shares therein. But certain female heirs shall be entitled to the right of residence therein. 7. Adopted Son—An adopted son is treated as a natural born son and therefore he would be entitled to demand a partition anytime after adoption. But where after a son has been adopted by the parents and a natural son is begotten to them subsequently, although the adopted son was to be treated at par with the natural son, yet the quantum of his share in the joint-family property differed in different schools. How a Partition is Effected? A partition is made in the following ways-1. Partition by Mere Declaration to Separate—Partition under the Mitakshara Law is a severance ofjoint status and as such it is a matter of individual volition. All that is necessary to constitute partition is a definite and unequivocal indication of his ‘intention’ by a member ofjoint-family to separate himself from the joint family and enjoy his share in severalty. A division in status takes place when he expresses his intention to become separate unequivocally and unambiguously and the filing of a suit for partition is a clear expression of such an intention. 2. Partition by Notice— A severance ofjoint status may be effected by serving a notice by a coparcener on the other coparceners, including his intention to separate and enjoy the property in severalty or demanding partition of the property. The notice may be subsequently withdrawn with the consent of the other coparceners and if it is withdrawn, there will be no partition. 3. Partition by Wiil — Partition may be effected by a coparcener by making a will containing a clear and unequivocal intimation to his coparceners of his desire to sever himself from the joint family or containing an assertion of his right to separate. 4. Conversion to another religion—Conversion of a coparcener to any other religion operates as partition of the joint status as between him and other members of the family. 5. Marriage under Special Marriage Act, 1954—Marriage of a Hindu under the Special Marrialge Act causes severance between him and the other members of the famfiy. 6. Partition by agreement —An agreement between the members of a joint family to hold and enjoy the property in certain delined shares as separate owner operates as partition, although the property itself has not been actually divided by metes and bounds. The two ideas the severance of joint status and a de facto division of property must be kept distinct. As partition under the Mitakshara Law is effected on the Severance of joint status, the allotment of shares may be done later. 7. Partition by arbitration — An agreement between the members of a joint family whereby they appoint an arbitrator to arbitrate and divide the property operates as a partition from the date there of The mere fact that no award has been made is no evidence of a renunciation of the intention to separate. 8. Partition by father—The father may also cause the severance of the sons without their consent. It is remnant of the ancient doctrine of ‘Patria Potestas’ (Paternal power). 9. Partition by suits—The institution of a suit for partition ipso facto effeets severance of the joint-family status and as such the mere institution of such a suit effects immediate severance of joint status. Modes of partition are not exhaustive–The nine modes of partition given above are not exhaustive. There may be other circumstances as well which if indicated unequivocal intention for partition will be admissible. (b) Whether a Partition be Re-opened—According to Manu, “Once is partition made, once is a damsel given in marriage, once does a man say, ‘I give’ these are by good men done for all and irrevocable.” So the general rule under Hindu law is that, Partition once made cannot be re-opened. In the case of Smt. Lila Wad V.s. Paras Ram, A.I.R. 1977 H.P.I, the Himachal Pradesh High Court has held that where there was a partition as evidenced by the mutation, the partition will sever the joint status even if the motive is to defeat the claims of the creditors. It may be that the mutation was effected to save the property from the creditors, but the partition once proved even if it may have been brought about with an ulterior motive with be binding on the brothers or the members who were before the partition members of the joint Hindu family. Exceptions–A partition may be re-opened under the following circumstances — (i) A son conceived at the time of partition, though not born before partition can re-open it if a share has not been reserved for him. But where a son is begotten as well as born after partition, and if a share has been allotted to the father, such after born son is not entitled to have the only entitled to have the partition re-opened and the property redistributed on the ground that the partition has been completed by actual division of the estate. He is only entitued to succeed to his father’s share and to his separate or self-acquired property to the exclusion of the divided sons; (ii) A son begotten as well as born after partition can demand a re-opening of partition, if his father though entitled to a share, has not reserved a share for himself; (iii) A disqualified coparcener after the removal of disqualification or a missing coparcener on his return can re-open the partition; (iv) A partition can be re-opened by a minor coparcener on attaining his majority. If the partition made during his minority was unfair or prejudical to his interest. (v) Where a coparcener has obtained an unfair advantage in the division, the partition may be reopened for the readjustment of shares. The Supreme Court in Ratnam Chettiar Vs. S. M. Kuppu Swami, A.I.R. 1976, SC.1, partition effected between members of the Hindu undivided family by their own volition and with their consent cannot be re-opened unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. When undivided family consists of minors, and partition effected therein is proved to be unjust and unfair and is detrimental to the interests of the minors, the partition cna be re-opened whatever the length of time when the partition took place.