Sometimes a partition may be affected even against the wishes of the coparceners. This happens in the following instances:
(i) Father’s Special Powers:
A Hindu father under the Mitakshara Law can effect a partition between himself and his sons and also between his sons inter se without their consent. The partition thus effected may be in status or it may be by metes and bounds. Kalyani v. Narayanan, AIR 1980 SC 1173. It should provide equal shares to the sons along with the father.
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ADVERTISEMENTS:
It is only the father-manager that has this power of imposing upon the sons a partition between the sons inter se. Any other manager (e.g. a brother-manager) has no such power. Even the father-manager cannot bring about such a partition among the sons by his testament for ancestral property.
The Orissa High Court has held in Anadi v. Prahallad, AIR 1981 Ori. 21, that if out of four brothers one becomes separated, there is a division in status even as between the remaining brother. The finding of the Lower Court that the other brothers remained joint was reversed citing the case of the Supreme Court in Kalyani v. Narayanan, AIR 1980 SC 1173.
ADVERTISEMENTS:
This is a misapplication of the ruling of the Supreme Court which should be confined to the case of a father-manager affecting a division in status between the sons inter se. The Orissa High Court’s decision requires reconsideration.
(ii) Marriage under the Special Marriage Act, 1954:
When a Hindu coparcener marries under the Special Marriage Act; there is a severance of joint family status so far as he is concerned. He would be entitled to a share as on the date of his marriage.
(iii) Conversion:
ADVERTISEMENTS:
A convert from Hinduism to another religion severs the tie with the Hindu coparcenary. He will be entitled to his share as on the date of his conversion.
(iv) Under s. 6 of the Hindu Succession Act, 1956, on the death of a coparcener leaving him surviving a female heir of Class I or a male heir claiming through such heir, there is a division in status so that his share devolves on his heirs and does not pass by survivorship.