Partition

In one minute

Partition ends the joint holding of coparcenary property. It happens in two steps. First a coparcener separates in status by a clear and communicated declaration. Later the property is divided by metes and bounds into definite shares.

Any adult coparcener, son or daughter, can demand partition at any time. A completed partition is final, but it can be reopened for fraud, for a minor's unprotected interest or for a son in the womb.

Legal provision

• Section 6(1), Hindu Succession Act, 1956 (as amended in 2005): a daughter is a coparcener by birth. She has the same rights as a son, including the right to claim partition.
• Section 6(3): on the death of a coparcener after 2005, the coparcenary property is deemed to be divided as if a partition had taken place. The daughter gets the same share as a son. The share of a pre-deceased son or daughter goes to that person's surviving child.
• Section 6(5) and Explanation: section 6 does not apply to a partition effected before 20 December 2004. For section 6, "partition" means a partition by a registered deed of partition, or by a decree of a court.

Meaning and definition

Partition in Hindu law is the end of the joint status of the coparceners in respect of the joint family property. It has two meanings that students often mix up.

1. 1. A coparcener makes a clear declaration of intention to separate.
2. 2. The declaration reaches the other coparceners.
3. 3. Status is severed. The member holds as a tenant in common.
4. 4. ResultThe property is divided by metes and bounds, by agreement, arbitration or court decree.

Detailed explanation

Step 1: severance of status

Severance of status is a change in the legal relationship only. It ends the coparcenary for that member. It is a matter of volition. The coparcener makes a clear and unequivocal declaration and communicates it to the others. No deed, court order or physical division is needed. A suit for partition is itself such a declaration.

Step 2: division by metes and bounds

This is the actual division of the property into definite shares. It may come months or years later, by agreement, by arbitration or by a court decree. Until then the separated members hold as tenants in common.

Step 3: who can demand and who gets a share

• Any adult coparcener of sound mind can demand partition at any time.
• Since 2005 a daughter has the same right and the same share as a son.
• A minor coparcener gets a share, exercised through a guardian. The court examines such a partition closely.
• A child in the womb is treated as already born. Partition should wait, or a share must be kept for the child.
• Before 2005, on a partition between a father and his sons, the wife got a share equal to a son's. A mother got a share on a partition among her sons.
• An adopted son gets a share like a natural-born son.

Step 4: reopening a partition

The general rule is that a partition, once made, is final. It can be reopened in these cases only.

• Fraud: a member hid assets or misstated their value. Fraud must be pleaded and strictly proved.
• Son in the womb: no share was kept for him, and he asks after birth.
• Minor's interest: the minor's share was unfairly allotted.
• Absent or wrongly excluded coparcener: a member left out by mistake or disqualification.
• Adopted son: in some cases a son adopted after partition.

Reopening mends a flawed partition. Reunion is a new event, where separated members agree to live and hold jointly again. Reunion needs the consent of all the parties and cannot be presumed from living together.

Step 5: partition after 2005

Section 6 saves a partition made before 20 December 2004. For it to count, the partition must be by a registered deed or a decree of a court. In Vineeta Sharma the Supreme Court accepted an oral partition only in exceptional cases that are proved by public documents or similar evidence.

Exceptions and special rules

• Father's power: a father can partition the property among his sons without their consent. He must act fairly and not favour one son.
• Burden: a member who claims that a partition has occurred must prove it. Jointness is presumed.
• Dayabhaga: shares are already fixed, so partition only changes the form of holding.

Don't confuse: severance of status and division by metes and bounds

Point	Severance of status	Division by metes and bounds
Nature	Legal change only	Physical division of property
How it happens	Communicated declaration of intention	Agreement, arbitration or decree
When	From the declaration	Possibly years later
Documents needed	None	Often a deed or decree

Common mistakes

• Saying that partition needs a deed or a decree for severance of status. A communicated declaration is enough.
• Forgetting that the declaration must reach the other coparceners.
• Saying a completed partition can never be reopened.
• Mixing reopening with reunion.
• Applying section 6 to a partition made before 20 December 2004.

Apply it

Problem

Madhav, a Mitakshara coparcener in Kakinada, wrote a will in 2010 declaring that he is separate from the family. He died in 2012. His brothers never saw the will in his lifetime. His widow claims that his status was severed. Decide.

Issue

Can an uncommunicated declaration sever status?

Rule

A declaration of intent to separate must be communicated to the coparceners concerned before it takes effect. Once known, it relates back to the date of the declaration.

Application

The will was not shown to have reached the brothers before Madhav died.

Conclusion

Status was not severed by the will alone, following Addagada Raghavamma. The brothers' rights stand.

Leading case laws

• Addagada Raghavamma v. Addagada Chenchamma

  Facts. A coparcener's 1945 will declared that he was separate from the joint family. The will was not shown to have reached the coparceners' guardian before he died.

  Principle. The Supreme Court held that a declaration of intent to separate must be communicated to the affected coparceners before it takes effect. Once known, it relates back to the date of the declaration but cannot disturb rights already vested.

  Why it matters. It is the leading case on severance of status.

• Vineeta Sharma v. Rakesh Sharma

  Facts. The Court heard a reference on how amended section 6 applies to daughters and to earlier partitions.

  Principle. Only a registered deed or a final court decree before 20 December 2004 is a saved partition. An oral partition is accepted only in exceptional cases.

  Why it matters. It fixes what counts as a partition for the 2005 amendment.

How to write this answer in the exam

Key points to remember

• Partition has two steps: severance of status, then division by metes and bounds.
• Severance needs a clear, communicated declaration, not a deed.
• Any adult coparcener, including a daughter, may demand partition.
• A partition can be reopened for fraud, minor's interest or a son in the womb.
• Reunion needs the consent of all.
• For section 6, partition means a registered deed or a court decree.

Quick self-test

Related topics

• Concept of Joint Family, Coparcenary, Joint Family Property and Coparcenary Property
• Notional Partition
• Daughter’s right to inherit ancestral property and impact of recent changes in law