In terms of Law, Partition means the division of property into two or more parts among the Joint Hindu Family where it provides separate conferment of status on the undivided coparceners. If there is a single or one coparcener, then no partition is possible in a Joint Hindu Family. A coparcener is an individual who inherits properties with other co-heirs.
Partition under Mitakshara and Dayabhaga School
Dayabhaga school: Every adult coparcener has rights to demand partition by the demarcation of his shares in a Dayabhaga School. These partitions should be by bounds and metes.
Mitakshara school: Under this head, it should be remembered that there is no demarcation of property into specific shares, and essentials of a coparcener need to be established but the existence of Joint property is not an essential element for demanding partition.In Mitakshara School, a demand of partition is a definite and unequivocal declaration that conveys his intention of separating from the family.
De Jure Partition:
When the community interest is broken down by one coparcener or by mutual agreement then the shares of the property are fixed or demarcated and these types of partition are called De Jure Partition and where there is no scope of application for Doctrine of Survivorship.
De facto Partition: Breaking up of Unity of Possession is affected by an actual division of property and this is known as De Facto Partition.
Essentials of a valid partition
The essentials of valid partition are as follows: –
- There must be an intention to get separated from the Joint Family.
- There must be a clear, unequivocal and unilateral declaration which conveys the intention to separate from the Joint Family.
- The intention must be communicated to the Karta or to the other coparcener in his absence.
Effect of Partition:
A partition leads to separation of properties in a Joint Family and after partition, an individual is considered free from his rights, duties, obligations and responsibilities which arise from the Joint Family. After partition, each individual or existing coparceners get fixed number of shares of the property.
Various modes of partition:
Partition by father
A father in a family has superior powers to separate himself from the Joint Family and can also separate son, daughter including minors by affecting a partition.
Partition by agreement
Coparceners by mutual agreement can make partition of the property on certain terms and conditions which they have agreed upon.
Partition by Suit
A property can be separated by filing partition suit in the court. The court provides a decree which specifies the respective shares of the coparceners. It is the most favourable way to express one’s intention to separate himself from the Joint Family property.
“In the case of JingulaiahSubramanyam Naidu v JinguliahVenkatesulu Naidu, a partition was sought of the property in the name of the wife of the opposite party claiming that they are joint properties and without making titleholder as the party. Therefore, the court stated that when the partition is sought of a party, it is a mandatory condition to make titleholder as a necessary party.”
Partition by Conversion
Any coparcener of a Joint Family converts himself into other religion than his religion then he would lose his membership of the coparcenary but it will not affect any other coparceners of the Family.
Partition by Arbitration
Arbitration is another way to make partition of the property. In this process, the coparceners appoint an arbitrator who arbitrate and divide the property among the coparceners and this partition comes into effect from the same date when the arbitrator arbitrate and divide the property.
Partition by Notice
A property can be divided by sending a notice of partition to other coparceners by the coparcener who intends to do so. A partition by notice comes into effect by sending a notice whether accompanied by a suit or not.
This article clearly provides the concept of Partition and various modes of Partition. Partition is a very vital thing in a Joint Hindu Family since it gives rights to inherit properties separately. Coparceners can demand partition of a property if he intends to do so and all the modes of partition are mentioned in the article which will help any coparceners or individuals to make partition of the property.