It is not necessary under Hindu law that the partition should be executed by a registered instrument only. Even a family compromise between the coparceners would be sufficient to effect a partition and by virtue of that they become entitled to individual share and use thereof.
According to the Supreme Court, the partition may be partial or total. Partition could be partial with respect to the members of the joint family or joint family property. When a partition takes place, the presumption is about the total partition. But where some members contend that the partition was partial with respect to members or property, the onus is on them to prove it.
A partition can be affected by the father even during his life among his sons. A partition could also take place by (a) agreement, (b) institution of a suit to that effect, (c) arbitration. It is not necessary for the partition that the joint family property is divided by every bit of it. The severance in the joint status could be brought about by any of the above modes and some property could be used by the coparceners as joint tenants. The following modes of partition are important:—
Partition by Mere Declaration
Partition under the Mitakshara law is a severance of joint status and as such, it is a matter of individual volition. An unequivocal indication of a desire by a single member of the joint family to separate is sufficient to effect a partition. The filing of a suit for partition is a clear expression of such an intention.
The oral or written communications by a coparcener could be enough to sever the joint status but the communication could be withdrawn with the consent of other coparceners and with its withdrawal partition would not take place.
It is not necessary that there should be a partition by agreement. It can take place by an act or transaction of a coparcener, by which there could be an indication of the separation of his interest. What type of act, conduct or expression of intention would disrupt joint status, will be decided on the basis of facts in each case.
Where the communication of the intention to separate has been given with the intent to give only a threat to it without any real desire to this effect and later on the intention is not persuade, it would not be enough for severance. There would be no separation on account of the fact that someone of the members of the joint family has filed a suit to get a declaration of insolvency for himself. In absence of any joint property, mere communication of the intention to separate would be enough.
In Raghvamma v. Chenchemma[1], the Supreme Court laid down that it is settled law that a member of joint Hindu family can bring about a separation in status by a definite declaration of his intention to separate himself from the family and enjoy his share in severally. Severance in status is brought about by the unilateral exercise of discretion.
One cannot, however, declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others. ‘Others’ must necessarily be those affected by the said declaration. Therefore a member of a joint Hindu family seeking to separate him from others will have to make known his intention to the other members of the family from whom he seeks to separate. The process of manifestation may vary with circumstances.
It is implicit in the expression ‘declaration’ that it should be to the knowledge of the persons affected thereby. An uncommunicated declaration is not better than a mere formation or harboring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby.
The Supreme Court in Puttorangamim v. Rangamma[2], reiterated that “it is, however, necessary that the member of the joint Hindu family seeking to separate himself must make known his intention to other members of the family from whom he seeks to separate. The process of communication may vary in the circumstances of each particular case. The proof of a formal dispatch or receipt of the communication by other members of the family is not essential, nor its absence fatal to the severance of the status.
It is of course, necessary that the declaration to be effective should reach the person or persons affected by some process appropriate to the given situation and circumstances of the particular case”.
“It is, of course, possible for the members of the family by a subsequent agreement to reunite, but the mere withdrawal of the unilateral declaration of the intention to separate, which already had resulted in the division in status, cannot amount to an agreement to reunite.”
The Patna High Court laid down that for separation a division of property by metes and bounds is not necessary, there must be an unequivocal declaration by a member to show that he separated from the rest of the family.
There is no need of giving a written notice by one coparcener to the other coparcener. The expression of the desire of a coparcener to separate can be inferred from the cognate circumstances. An undivided coparcener cannot merely by declaration and definition of his share in a deed of transfer executed by him validly make a transfer of a share to which he would have been entitled if he had effected a partition before making the transfer.
The unequivocal intention to separate has to be communicated to the other coparceners in order to effect a partition by severance of status. A severance of status is not brought about by transferring a certain specific share in the joint family property.
Partition by Father
The father may cause a severance of sons even without their consent. It is the remnant of the ancient doctrine of ‘Patria Potestas’. The father during his lifetime is competent to effect such partition under Hindu law and it would be binding on his sons.
It would be binding on the sons not because they have assented to it but because the father has got the power to do so, although this power is subject to certain limitations on the basis of its utility and general interest of the family. It has to be considered as to whether it is lawful in accordance with the spirit of Hindu law or not.
According to Supreme Court’s decision is Kalyani v. Narayanan[3], a Hindu father under Mitakshara law can affect a partition among his sons even in the lifetime of Karta of the joint family and such partition would be binding on them. In such a case he can define and specify his share along with his sons and thus effectuate a separation among them. But in no case, ho can divide the joint family property among the different members by virtue of a Will, although he could do it with their consent.
Where the father has divided the property unequally among his sons, then to it would be binding. But no person can give his consent to the unequal share on behalf of a minor. The sons have the right to challenge the unequal division of shares or an act of unilateral division of shares by the father, but it will have no bearing on the severance of their joint status. Where the father has divided his self-acquired property unequally among his sons, it could not be challenged by them, nor is there any need of a registered deed to this effect.
Partition by Suit
Mere institution of a partition suit disrupts the joint status and a severance of joint status immediately takes place. A decree may be necessary for working out the resultant severance and for allotting definite shares but the status of a plaintiff as separate in the estate is brought about on his assertion of his right to separate whether he obtains a consequential judgment or not.
So even if such suit was to be dismissed, that would not affect the division in status which must be held to have taken place when the action was instituted. Ordinarily, a partition is affected by instituting a suit to this effect. In case of a suit for partition in joint status, father’s consent to the suit for partition is no longer necessary. The son is fully eligible to file a suit for partition even during the lifetime of the father.
When the plaintiff files a suit for partition the share which he received in the earlier partition would not be free from charges and liabilities. If the creditors have obtained the decree against the joint family property, then even that share of the plaintiff which he did not receive, would also be liable in the same manner as that of the other coparceners.
The above nine modes of partition are not exhaustive. There may be other situations as well which, if expressed in equivocal intention for partition, will be admissible.
Exception
The general rule mentioned above will not apply where a suit is withdrawn before trial by the plaintiff on the ground that he did not want separation anymore. In such a case there would be no severance of joint status. Where the suit is proved to be fraudulent transaction resorted to with intent to create evidence of separation, no severance in the joint status takes place. If the defendant dies and the suit are withdrawn on that ground there is no separation.
Mere institution of a suit for partition by a minor followed by the abatement of the suit by the death of the sole defendant does not affect the severance of the joint status.
Edited by Ankita Jha
REFERENCES
[1] THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 (http://indiacode.nic.in/fullact1.asp?tfnm=200539)
[2] Section 6 in The Hindu Succession Act, 1956 (https://indiankanoon.org/doc/1883337/)
