According to the Mitakshara partition has two meanings. It may mean mere defining of the shares i.e. division in status. It may be physical division of the property by drawing up the boundaries.
This is what is known as partition by metes and bounds. It makes the quondam coparceners owners in severalty of specified item respectively allotted to them. A partition by metes and bounds involves the following steps:
ADVERTISEMENTS:
Ascertainment of the Various Items of Joint Family Property:
(i) Presumptions:
Some items of property may be standing the names of various members of the joint family. It does not mean that they are their separate property. If at the time of acquisition of a particular item, there is sufficient nucleus of coparcenary property, it would be presumed that the acquisition was made with the income, from such nucleus and that the property is joint family property. K.V. Narayanaswami v. K.V. Ramakrishna Iyer, AIR 1965 SC 289.
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There is a strong presumption that a Hindu Family is joint: Indranarayan v. Roop Narayan, AIR 1971 SC 1962. There is no presumption, however, that a joint family owns any property or that property held by any of its members is joint family property.
When it is claimed that a member has blended his property with the joint family property the burden of proving it is on the person who makes such claim; Bhimavarapu Subba Reddy v. B. Nagireddy, AIR 1973 AP 184. A and В inherited some land from their father. It was thus their ancestral property. On this A built a house with his own funds.
ADVERTISEMENTS:
It was held that in such a case there is no presumption that the superstructure would belong to the joint family by blending. The house was, therefore held to be A’s self-acquisition: Gayatri Bai v. Jamuna Lai, AIR 1973 MP 75.
A coparcener’s self-acquired property may be blended, i.e., thrown into the hotchpot. It then becomes divisible property. The intention to blend such property should be clear and unequivocal. Further, the property should be that of a coparcener before the doctrine of blending can be invoked.
In Mallesappa v. Mallappa, AIR 1961 SC 1268, the wife of a coparcener inherited her father’s property. Gajendragadkar, J, held that there can be no question of such property being blended with the coparcenary properties. Only a coparcener can throw his self-acquired property into the hotchpot.
(ii) Provision for Debts:
Provision should be made for the payment of debts binding on the joint family. Where a coparcener is the father, as between him and his sons provision should be made also for his personal debts which are within the scope of the doctrine of pious obligation.
ADVERTISEMENTS:
It was pointed out by Mukherjea, J, in Pannalal v. Naraini, AIR 1952 SC 170, that if such provision for the father’s debts is not made at the time of the partition, the sons will continue liable even after partition for the pre-partition debts of the father.
The property allotted at the partition to the sons in such a case may be proceeded against in execution of a decree passed against the father after the date of the partition in respect of a pre-partition debt.
(iii) Provision for Maintenance Holders:
At the time of partition provision should be made for meeting the claims of noncoparceners who have claims for maintenance out of the joint family property.
(iv) Provision for Marriage Expenses of Female Members of the Joint Family:
At the time of partition anticipatory provision should be made for meeting the marriage expenses of the female members as such expenditure is a common burden to be borne by the coparcenary property. The net assets are then subjected to physical partition.