Persons entitled to Demand Partition in Hindu Joint Family
Partition is a severance of status of the coparceners and division of coparcenary property by metes and bounds. Therefore, as a general rule , it is the coparceners who have a right to demand partition and destruct their joint status. However, a partition can be demanded by an alienee or a purchaser, in the execution of a decree of court of the undivided share of a coparcener. The general rule that every coparcener has a right to partition is subject to two exceptions that is :
(a) an unqualified coparcener has no right to partition and,
(b) in Bombay school , sons cannot ask for partition against their father if the latter is joint with his own father or a collateral.
- ALIENEE OR PURCHASER IN EXECUTION OF A COURTS’S DECREE
General rule stands clear that a non – coparcener can not ask for partition. A suit by an alienee, for claiming equitable remedy from the coparcener, for allotment of shares is not maintainable[1]. However, when an undivided coparcener alienates his share which he is permitted to do, in such case the alienee can ask for partition. In case the individual is not permitted to alienate his part, but still he contracts for a debt and debtor brings a decree against him, that person is also entitled to demand for partition and take his part. Since, they are stranger to the joint family , they do not have the right to joint possession with rest of the coparcener but are entitled to demarcate only the share that they are entitled to . Such alienee or purchaser may file a suit for separation in court of law, under all schools of Mitakshara. An alienee of a coparcener’s interest, if such an alienation is valid, has a right to demand partition. In Smt. Kailashpati Devi v. Smt. Bhuwaneshwari Devi[2], 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 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.
- COPARCENERS
A coparcener, who is a major and of sound mind , can at any time, demand partition and specification of his share. The person from who he can demand partition is the KARTA. It is one of his inherent rights, being the owner of the property with other members. The KARTA does not have a right to deny the separation coming from a major coparcener. A demand from the coparcener, with or without reason, if said clearly, is sufficient and the KARTA legally, has no choice but to comply with his demand. If the KARTA does not give in to the demand of partition made by the coparcener , such a coparcener can go to the court and institute a suit for partition.
- FATHER : The father does not have any right to partition in between himself and his sons but he has also the power to affect a partition among the son’s inter se. The Mitakshara School expressly states that a father can divide his property if the partition was claimed and the partition will be done in between himself and his son’s ,here if any minor is present then he has to provide a separate and equal share to him also . An unequal division of shares or partition done without given the separate share to the minor, in the circumstances a former coparcener can claim for reopening of partition also. The father can impose even a partial partition between his minor sons and himself.
- SON , GRAND-SON , GREAT GRAND-SON : Under Mitakshara school son, son’s son and son’s son’s son is having right to ask partition but there is an exception in Bombay school it was stated that son’s cannot ask for partition without the consent of his father if the partition was asked from grandfather. Under Dayabhaga School there is no coparcenary consisting of the father and his sons and their sons have no right to claim or ask for separation.
But this view no longer stands valid. The Bombay High Court in a later case accepting the authority of the Supreme Court in Puttorangamma v. Rangamma[3] 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 division.
The Delhi High Court clearly maintained that a son can demand partition during the lifetime of his father without any hindrance. This view was again supported by the Bombay High Court in its latest pronouncement.
- ADOPTED SON : The Dharmashastra has dealt with the position of adopted sons in two situations : (a) when there is a subsequently born aurasa (natural) son of his father, and (b) when there is no such son. In the latter case , his position will be same as that of the natural born son. In the first case, he has the same right to partition but no entitled to same share. He would take a lesser share as compared to a natural born son which differs from school to school.
- AFTER BORN SONS
According to Vishnu and Yajnavalkya , the partition should be reopened to give a share to the after-born son. On the basis of the Mitakshara formulation, we have two rules; one in respect of a son in the womb at the time of partition and the other in respect of a son who comes into the womb after the partition.
If the pregnancy is known, the partition should be postponed till the child is born. But if the coparceners do not agree to this, then equal share as to the son should be reserved for the child in the womb. In case, no share is reserved for the son in the womb, he can , after his birth, demand re-opening of the partition. If pregnancy is not known and consequently, no share is reserved, then also the redistribution of the estate should take place after the birth of the son.
When the father has already taken a share for himself, the afterborn son becomes a coparcener with his father. When the father has not reserved any share, the after-born son has the right to reopen and get the estate redistributed as it then stands.
- MINOR COPARCENER
A minor coparcener, though equal in ownership of property with a major coparcener, does not have a right to demand for partition from the father or the KARTA. But , this does not mean that at his instance, no partition can be effected. A minor needs special protection and ordinarily, the father or the KARTA is presumed to act in his interests. A suit for partition may be filed on behalf of the minor by his next friend or guardian. A minor is a person of immature intellect, and the court acting as ‘parens patriae’ has the duty to protect the minor’s interest. The test would be whether the partition in the circumstances, would be for the benefit of the minor. The court has a discretion and it may order for effecting a partition only when it is satisfied that it would be beneficial to his interests, otherwise, it will not direct the division. A refusal of the father to maintain a minor son, his immemorial behaviour and the investment of joint family funds into speculative transactions, would be sufficient for the courts to conclude that a partition would benefit the minor. It is also an established rule of Hindu law that the presence of minor coparcener is no bar effecting partition by the adult coparceners. An unfair partition can be reopened by a minor on attaining the majority.
- DAUGHTER
Daughters have the same rights as sons to reside in and to claim for partition of the parental dwelling house. After passing Hindu Succession (Amendment) Act, now the position has been changed, now Section 23 of the principal Act has been omitted by Hindu Succession (Amendment) Act.
The term “female sharers” include three types of females, namely, (1) the wife, (2) widowed mother, and (3) paternal grand-mother. These female sharers cannot demand a partition but, however, entitled to get their share when the joint family property is actually divided on partition. Where a suit for partition filed by a coparcener has been withdrawn, the female sharer will not be entitled to continue the suit or to press a demand of his share.
The mother and the grand-mother would be entitled to get a share on partition only when such partition is effected between the sons and grand-sons. The female sharers would not be entitled to any share in the property merely by the fact that a suit for partition has been filed or a preliminary decree has been obtained in the suit. So long the actual division is not affected; there is no question of allotment any share to them. Section 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.
In Pachi Krishnamma v. Kumaram, the daughter claimed is shared as equal as to the son in the division of joint family property but she failed to prove her customs which says that a daughter can get an equal share as to the son. but after the amendment of 2005 in Hindu succession act it gave the power that a daughter is having right to ask partition and can claim and equal share as to the son in the partition of the joint family property.
In Prakash v. Phulwati, the full bench of the Bombay High Court in this case held that the rights under the the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per the law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the given explanation.
In Danamma @Suman Surpur v. Amar, the honourable Supreme Court of India in this case as on 1-2-18 held that daughters have equal rights in Ancestral Property, even if they were born before enactment of Hindu Succession Act.
In Nayanaben Firozkhan Pathan v. Patel Shantaben Bhikhabhai & Others, in this the Gujarat High Court held that a Hindu daughter after marrying to a Muslim does not lose her right to inherit property under the Hindu Succession Act.
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[1] D Odabbasappa Basappa Belavigi v. Gadigeppa Verappa NElogal (2003) ILR 4 Kant 2987, AIR 2003 NOC 93 (Kant) [2] AIR 1984 SC 1802, (1985) 1 SCC 405, 1984 (16) UJ 833 SC [3] 1968 AIR 1018, 1968 SCR (3) 119
