(a) Partition according to Mitaskhara Law:
According to the Mitaskhara law no individual member in the coparcenaries property has any specific share in the property so long as the family is joint. So partition according to the law, consist in a numerical division of the property. In other words partition consists in defining the shares of the coparceners in the joint property; an actual division of the property by metes and bounds is not necessary. Once the shares are defined the property ceases to be joint and henceforth the parties hold the property as tenant-in- common.
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Modes of effecting partition:
ADVERTISEMENTS:
Partition is a severance of joint status and as such it is a matter of individual volition. Absent of other members is not necessary to affect partition. A definite and unequivocal indication of intention by a member of a joint Hindu family to separate himself from the family and enjoy his share in severalty is all that is necessary to constitute partition.
His right to obtain and possess his share is unimpeachable whether the other coparceners agree to it or not and there is the immediate severance of the joint status. Thus, the partition of joint property can be affected by the definite and unequivocation of intention by a member to separate in any of the following manner:
(1) Partition by a mere declaration to separate:
The disruption of joint status may be brought by a definite and unambiguous indication by one member of intention to separate him and to enjoy the share in severalty. The intention to separate may be evidenced either by explicit declaration or by conduct. No formal declaration is necessary and it is also not necessary to communicate the declaration to each and every member of the coparcenaries.
When a coparcener communicates his unequivocal intention to separate to the other coparceners, there is immediate severance of status in the family. Mere separation in mess, however, does not amount to an unequivocal expression of intention to separate. (Tulsiram Sangdaneira v. Smt. Anni Bai, .A.I.R. ‘973 Ori. 11).
ADVERTISEMENTS:
What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint family and covert a joint family into a tenancy in common, depends upon the facts of each case. (Devvara Latchandhora v. Duvvari Chinnavadu, A.I.R. 1963 A.P. 31).
It was held in Raghavamma Chennamma, A.I.R. 1964 S.C. J36: (1964) 2 S.C.R. 933 that:
(i) A member of a joint Hindu family can bring about a separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severalty by expressing such an intention even in a will.
(ii) The knowledge of the expression of intention to separate is to be brought home to the persons affected by it and, if this is done, it relates back to the date when the intention was formed and expressed.
ADVERTISEMENTS:
Where there is nothing in the will executed by a member of a Hindu coparcenaries to unmistakably show that the intention of the testator was to separate from the joint family, the will does not affect severance of status.
(2) Partition by notice:
The intention to separate may be expressed by serving a notice by a member on other coparceners or the manager. In such a case, the severance of joint status takes place from the date when the communication is sent and not when it is received. The notice may, however, be withdrawn subsequently with the consent of the other coparceners. If it is withdrawn, there will be no partition.
(3) Partition by agreement:
A partition may be affected also by agreement between the members of a joint family to separate which may be oral or written. Without a clear intention to separate, mere defining shares will not constitute partition. There must be clear indication of the intention of the parties to the agreement to separate.
Family agreement:
A family agreement which is for the benefit of the family generally can be enforced in a court of law. But before the court, would do so, it must be shown that:-
(i) There was an occasion for effecting a family arrangement; and
(ii) It was acted upon. In the Commissioner of Wealth Tax Mysore v. Vijayaba, A.I.R. 1979, S.C., 982. Certain disputes and difference arose between two sons after the death of their father in respect of assets left by the father. The younger brother was contemplating legal proceedings against his elder brother.
Thereupon, the mother intervened and the idea of litigation was dropped because the mother assesses gave a letter to the younger son agreeing to purchase a piece for the family and to pay him the amount which fell short of the specified amount if her elder son did not pay any portion thereof. The S. C. held that the letter had the effect of bringing about the family arrangement between the parties.
(4) Partition by arbitration:
An agreement between the members of a joint Hindu family whereby they appoint arbitrators for dividing the joint-property among them amounts to severance of the joint status of the family from the date of the agreement. The fact that on award has been made on the reference is no evidence of renunciation of the intention to separate.
In order to constitute partition (i.e., the severances of the joint status) it is not necessary that there is not actual division of the joint family property by metes and bounds.
(5) Partition by institution of suit:
A definite and unequivocal indication of intention by a member of a joint family to separate may also be expressed by the institution of a suit for partition. There is severance of joint status from the date when the suit for partition is instituted. (Patani Ammal v. Nuthulenkat- acharia, 52, 1.A. 83; 88 I.C. 333: A.I.R. 1925 A.C. 49).
There mere institution of a suit by a minor will not affect a severance of the joint status. Though after the court holds the division of the joint family property is in the interest of the minor and passes a decree, divided status of the minor may date back from the date of the institution of the suit (Krishanwami v. Pu- lukarappa, .A.I.R. 1925 Mad. 717) and not from the date when the preliminary decree is passed.
Illustration:
A and his father B are members of a joint family. A sues B for partition. B admits that he and A, re joint but alleges that the fact stated in the plaint, namely, that B had failed to maintain A is untrue and asks that A’s suit should be dismissed. The suit is dismissed on the ground that the facts alleged by A in his plaint are not proved. Such a dismissal is quite wrong. The institution of the suit operates as a partition between A and B though the suit is dismissed. (See Kamal Narain v. Prabu Lai, 44 I.A. 159: 39 All. 496: A.I.R. 1917 P.C. 39).
(6) Partition by cesser in commensality:
(Cessation in common residence and mess). The separation of mess and residence must be done with an intention of separation from the joint family.
The mere ceasser of commensality or separation in residence, food and worship do not by themselves constitute severance in status, though they strongly indicate that branches must have been divided. (Duvvara Latchanphora v. Duvvari chinnavadu, A.I.R. 1963 A.P. 31).
(7) Conversion to another faith:
When a coparcener becomes a convert to another faith he will be considered separate from the family but he will not lose his rights in the family property because of the passing of the Caste Disabilities Removal Act. The conversion of a member of a joint family to another faith, say, to Islam or Christianity, affects his severance from the joint family but not of the other member inter se. He will, however, be entitled to receive his share in the joint family property as it stood at the date of his conversion. (Kulada v. Haribada. 40 Cal. 407).
(8) Marriage under the Special Marriage Act:
1954:- Section 19 of the Special Marriage Act, 1954 provides for the effect of the marriage hinder the Act. It lays down that the marriage solemnized under the Special Marriage Act of 1954 of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to affect his severance from such joint family.
(9) Partition by certification of shares:
A joint family business as a going concern cannot be divided into parts in the same manner as a house or a block of land. The only method by which such a business can be divided is by dividing the book balances in the names of persons to whom the shares of business have been allotted.
A partition may be brought about by specification of the shares in the account and making entries therein to show that business is held in severalty or in specified shares it is not necessary that there should be physical division of the business. (Bhimraj Bansidhar v. C. I. T. (1954) I.T. R. 185: A.I.R. 1954 Pat. 172).
These nine modes of partition are not exhaustive. Any other circumstances which indicates unequivocal intention for partition is also admissible.
There is a presumption of jointness in a Hindu family. The jointness in the Hindu family comes to an end when a partition is proved. When a partition is proved, then it will be presumed that the partition was by metes and bounds unless it is rebutted in evidence by the other side. (Marijadi Devi v. Jagarnath Singh, A.I.R. 1983 Patna 129).
A son who was in his mother’s womb at the time of partition is entitled to reopen a partition made between his father and elder brothers, though he is born after partition because the son in embryo is treated as equal as a son in existence.
(b) Where a son is begotten and born after partition his right to reopen partition depends upon whether his father has or has not reserved a share for himself. If the father has reserved a share for himself the partition is complete and cannot be reopened at the opinion of the after-born son. If however, he has not reserved his share the after-born son is entitled to reopen partition.
In this case the son is not entitled to reopen the partition because the father has got a share allotted to him. The fact that the property has not been actually divided is immaterial.