The partition of a joint Hindu family may take place at the instance of the following persons:—
1. Sons and Grand-Sons:
Under the Mitakshara Law, the right of a son, a grand-son and a great grand-son as well as every other adult member of the coparcenary, can demand a partition even against the consent of the others. The Bombay High Court in a case has said that a son is not entitled to ask for a partition in the life-time of his father without his consent, when the father is not already separate from his own father or brothers and nephews.
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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 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.
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.
2. After-Born Sons:
ADVERTISEMENTS:
After-born sons can be classified under two heads. Firstly, those born as well as begotten after the partition and secondly, those born after partition but begotten before it. A son in his mother’s womb is treated in law in existence and is entitled to re-open the partition to receive a share equal to that of his brothers.
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 re-open the partition.
3. Illegitimate Sons:
An illegitimate son among the three upper classes does not have any vested interest in the property and therefore, cannot demand a partition, although he is entitled to maintenance out of his father’s estate. The Madras and Allahabad High Courts have held that an illegitimate son of a Sudra may enforce a partition against his illegitimate brothers but not against his father or his father’s coparceners. The Bombay High Court has also taken the same view but the Calcutta High Court has taken an opposite view.
The share of an illegitimate son is half of what he would have got had he been a legitimate son and according to others; his share is half of that of a legitimate son. The Madras High Court in a case held that after the institution of the partition suit, the father can still fix the shares of his illegitimate sons. He can exercise this right according to his discretion so long as the partition has not become final.
4. Widows:
ADVERTISEMENTS:
A widow, though not a coparcener under Mitakshara law could still claim a partition of the joint estate under the Hindu Womens’ Right to Property Act, 1937. Mere partition of the estate between two widows does not destroy the right of survivorship of each to the properties allotted to the other. The party, who asserts that there was an arrangement, by which the widows agreed to relinquish the right of survivorship must establish it by clear and cogent evidence.
5. Adopted Son:
An adopted son like a natural born son would be entitled to demand a partition any time after adoption. But where a son has been adopted by the parents and a natural son is begotten subsequently, although the adopted son was to be treated at par with wife the natural son yet the quantum of his share in the joint family property differed in different schools.
In Bengal, he took 1/3rd share, in Banaras he took 1/4th and in Bombay and Madras he took 1 /5th share of the property. The Hindu Adoption and Maintenance Act, 1956 has done away with the discrimination and enabled the adopted son to get a share equal to that of natural born son on partition.
6. Minor Coparcener:
A minor coparcener is also entitled to effect a partition in case the joint status does not remain beneficial to his interest. He cannot file the suit himself but any other person on his behalf can file such a suit. His minority or the minority of other members of the family would not be a hindrance to effect a partition by him. If the partition has already taken effect detrimental to his interest, he could challenge it on attaining majority.
7. Alienee:
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, 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.
8. Female Sharers:
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.
If the suit has been dismissed for any other reasons, the mother would not be entitled to demand partition in the property. The mother and the grand-mother would be entitled to get a share on partition only when the 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 partition is not effected; 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.
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. Now daughters have the same rights as sons to reside in and to claim for partition of the parental dwelling house.