Here, partition means the division of property which is held by persons or family members jointly so that each person or member gets his or her share in the property and becomes the owner of the property which is provided or allotted to him or her. There are different provisions under different Acts to make partition of the property among the persons or members of the family. According to the Hindu Joint Family, the partition is a process by which joint family status among the coparcener comes to an end. The concept of partition is different under Mitakshara and Dayabhaga School of law.
Subject Matter of Partition –
Coparcenery property can be divided among the members of the family or person. Coparcenery property means the ancestral property so it can be divided among the members of the family or persons but self-acquired property cannot be partitioned because it is hard-earned property. So, we can conclude that the only property that can be divided or partitioned is the coparcenary property.
Principle of Partition –
When the property is partitioned without hampering or destroying the value of the property, the partition can be done but if the partition is hampering or destroying the value of the property then no partition can be done instead money compensation should be given for such property.
Properties which are not subject to Partition –
- Dwelling House – We know that in the ancient times Smritikars believed that there cannot be partitioned of dwelling house but in modern days or nowadays people don’t believe this concept. Dwelling house can be decreed for partition if insisted but the court tries that such property stays with one or more coparceners. If there is no agreement made between them then the property will be sold and the proceeds of the sale will be divided among the coparceners.
- Family shrines, temples or idols – Family shrines, temples or idols cannot be sold or partitioned. It is given to the senior member of the family if he or she devoted to god and all the members can worship the idol.
- Property indivisible by its nature – There are certain properties which can’t be partitioned but can be sold such as jewellery, furniture, staircases and so on. These properties are sold and the amount is divided among the family members.
- Legislative prohibition – There are certain properties which can’t be divisible for some social cause.
A person who is Entitled to demand Partition –
Mitakshara School and Dayabhaga School allow coparcener to demand partition.
- Father – Father has the power to make partition of the property and also effects the partition among the sons and daughters. While making the partition of the property father should act with bona fide intention and he should not make the partition with malifide intention and should not be unfair to any of the sons or daughters.
- Son, Grandson and Great Grandson can seek partition or have the right to seek partition.
- A son who has born after partition can seek or have the right to get property or share in the partition.
After the amendment of the Hindu Succession Act, 2005 females are considered as coparcener and given equal status as compared to son in the matter of distribution of coparcenary property. They are now coparcener by birth and has right to entitle coparcenary property.
Modes of Partition –
- Partition by father in his lifetime – Under this head, the father can make partition of the property among the sons or he can get separated from his sons or can separate his sons from one another and no consent is needed.
- Partition by notice – A partition can be effected by a notice.
- Partition by suit – When a coparcener files a suit for partition of the property then this creates intention to separate the property for the sons or daughters. A decree from the court can make the partition of the property.
- Partitions by arbitration – Here, the members of the family make an agreement under which they appoint an arbitrator to separate or divide the property.
- Partition by conversion to another religion – If a Hindu converts his religion then he loses his membership from the coparcenary.
- Partition by Will – Partition of the property can be made by Will also.
Division by metes and bounds –
Metes – Metes is the boundary defined by the measurement of each straight run which is specified by the distance between terminal points and direction or orientation.
Bounds – Bounds is the more general boundary description such as along a stone wall or watercourse or adjoining public road and so on. This system is mainly used to describe a larger piece of property like firms and political sub-divisions such as town boundaries.
Partition by metes and bounds –
Partition by metes and bounds involve the following:
- Presumptions – Presumptions indicates that if at the time of the acquisition of the property or particular item, there is sufficient nucleus of coparcenary property then it will be presumed that the acquisition was made with the income from such nucleus and it is the joint family property. (K.V. Narayanaswami v. K.V. Ramakrishna Iyer, AIR 1965 SC 289). There is a strong presumption that the Hindu family is joint. (Indranarayan v. Roop Narayan, AIR 1971 SC 1962)
- Provision for debts – Under this head, it is well mentioned that provisions should be made for the payment of the debts which is binding on the joint family.
- Provision for maintenance holders – Under this point, it is said that provision should be made for the claims of the non-coparceners who have claims for maintenance which arises from the joint family property at the time of partition.
- Provision for marriage expenses of female members of the joint family – When the partition is made at that time anticipatory provision should be made for meeting the expenses of the marriage which will arise from the coparcenary property.
“B. Ramamoorthy vs The State Of Tamil Nadu on 18 September 2020 Madras High Court”
The Appellants took a property in Vellore Town measuring about 7.10 acres on lease by Lease Deed dated 09.08.2010, which was executed by B. Sundararajan as lessor, for the purpose of running a cycle stand. The lease was for a term of three years from 09.08.2010 till 08.08.2013 and an advance of Rs.1,00,000/- was paid at the time of execution. Thereafter, the lessor under the said Lease Deed filed a suit against Balasundaram for the partition of the A & B schedule properties as per the schedule to the plaint in the said suit. By judgment and decree dated 27.04.2011, a preliminary decree was pronounced in favour of the Plaintiff for the division of the suit schedule properties into two equal shares, and a declaration was issued to the effect that the Plaintiff therein is entitled to 1/2 share of the suit schedule property. Thereafter, the first Appellant entered into an agreement of sale dated 14.03.2014 (the Agreement of Sale) with a partnership firm under the name and style of M/s. Jyothirmaye Estates, represented by its Managing Partner, Mr Brahmandam Danda. As per the terms of the Agreement of Sale, the First Appellant herein agreed to purchase two items of property, namely, (1) at T.S. No.175 Part of Block No.3 and Ward No.1 of Vada Vellore Town Village, Vellore Taluk, measuring 4 acres and 66 cents; and (2) the vacant lands comprised in T.S.No.158, T.S.No.172 and T.S.No.173, Block No.3 and Ward No.1 of Vada Vellore Town Village, Vellore Taluk, admeasuring 1 acre 34 cents for a total sale consideration of Rs.60 crores. At the time of execution of the Agreement of Sale, a sum of Rs.10,00,000/- was paid in cash as advance and it was stipulated in the Agreement of Sale that the sale transaction would be completed within one year from the date thereof. Subject to and upon receipt of the balance sale consideration, the vendor agreed to execute the sale deed in respect of the schedule mentioned property in favour of the purchaser or his nominees, which broadly corresponds to the property that was the subject matter of the lease.
“Sri.T.H.Ramachandra vs Dr.T.H.Manjunath on 31 August 2020 Bangalore District Court”
The plaintiff has filed this suit against the defendants for the relief of partition and mesne profits. It was the defence of the 1st and 2nd defendants that the plaintiff has enjoyed the rental income in respect of item No.8 property promising and assuring them that he would not make any claim in the said property at the time of partition and would execute relinquishment deed in their favour in respect of the said property and this contention was denied by the plaintiff.
It was declared that the plaintiff and the 3 defendants are entitled to 1/4th shares each in the entire suit properties and the possession thereof by metes and bounds. The relief of the plaintiff for mesne profit was rejected.