Partition takes place merely by unambiguous declaration by a coparcener of his intention to separate. The intention becomes distinct as soon as a suit is filed to effect the partition. When one of the coparceners separates himself, the presumption cannot be drawn that other members have also separated. This fact is to be determined in each case separately.
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Where the memorandum of partition is available but that is not in the form of a registered document, it is not just an admissible evidence of the fact that partition has been effected but it is sufficient to prove the intention to partition. Such memorandum establishes the intention of division of shares among the coparceners and would also lead to inference that the joint status of the family came to an end from the date of the memorandum. An oral evidence can be furnished to this effect.
ADVERTISEMENTS:
When a partition is effected on the demand of a coparcener, the other coparceners can still live jointly by some special agreement. All this depends upon the intention of the members. One individual member or branch may separate but the other members or branches may still choose to continue joint. Where a partition deed does not include minors, a presumption is drawn about their joint status.
The minority of a coparcener does not take away his right to demand partition. The only difference is that where a major member can himself file a suit for partition a minor could do it only through a next friend. The reason for this is that a minor cannot have a volition of his own. It is therefore that a guardian or next friend acting on behalf of the minor can exercise such volition on his behalf.
When the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status subject only to the court, deciding whether it is beneficial to the minor; and a suit instituted on his behalf if found to be beneficial, must be held to bring about a division from the date of the institution of the suit.