(1) Every adult coparcener is entitled to bring a suit for partition. The Gujarat High Court observed that where a son asks not only for severance of status but also for partition of properties by metes and bounds without the assent of his father, his father not having separated from his grandfather, the son was not entitled for partition by his father.
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(2) A widow, under Hindu Woman’s Right to Property Act, 1937 can file a suit for partition of her interest in the property left by her husband on his death. Section 23 of the Hindu Succession Act, 1956 also confers a right upon the Hindu females to get a share in the residential house of the father.
ADVERTISEMENTS:
(3) A purchaser of a coparcenary interest of a coparcener at a sale in execution of a decree can demand a partition.
In Smt. Kailashpati v. Smt. Bhuwaneshwari Devi, the Supreme Court held that a purchaser of property from a coparcener is ordinarily entitled to bring an action against all other coparceners for the partition of the interest of such coparcener which he has purchased. This remedy is effective only for making the purchase fruitful.
Suit by Minor:
The Hindu law does not make distinction between a minor and major coparcener so far their right to demand a partition is concerned. A minor’s rights at partition, are precisely the same as that of a major. A suit can be filed on behalf of a minor by his guardian for the division of his share and it is maintainable in same manner as one filed by an adult coparcener with the difference that when the plaintiff is a minor, the court has to be satisfied that the action has been brought for his benefit.
It is a pious duty of the courts to look after the interest of the minors. Whenever a suit for partition has been filed on behalf of a minor, the courts can appoint their own officer’s to protect their interest, and stay proceedings if they consider that they are vexatious. When, therefore, the court decides that the suit has been instituted for the benefit of the minor and a partition is decreed by it, it is done so in exercise of a jurisdiction which is inherent in it and which extends over all minors.
ADVERTISEMENTS:
The true effect of a decision of a court that the action is beneficial to the minor is not to create in the proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action.
In Venkat Reddi v. Lakshamma, the Supreme Court held that,
“An action by a minor for a decree for partition and separate possession of his share in the family property is not founded on a cause of action personal to him. The right claimed is in property, and devolves on his death even during minority upon his legal representative. The court, it is true will direct partition only if partition is in the interest of the minor but that limitation arises not because of any peculiarity in the estate of the minor but is imposed for the protection of his interest. The effect of the decision of the court granting a decree for partition in a suit instituted by a minor is not to create a new right which the minor did not possess, but merely to recognise the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the court and not the decree of the court that brings about the severance”.