Partition: What It Is, Who Can Demand It, and How

In one line

Partition is the conversion of a joint, fluctuating, undivided interest into a fixed and separate share, and under Mitakshara it happens the moment a coparcener makes his intention to separate known.

What partition means

Under Mitakshara law, a coparcener's interest is unascertained and fluctuating: it grows and shrinks with births and deaths, and nobody can say what it is until somebody asks. Partition is what fixes it.

So partition does two things, and the law treats them separately.

Severance of status. The joint status comes to an end, the shares become fixed and ascertained, and the coparcener holds his share as a separate owner. This happens on a declaration of intention.

Division by metes and bounds. The property is physically divided. This may follow later, or by agreement never happen at all, and the parties may hold as tenants in common.

Under Dayabhaga the first step is unnecessary, because shares are already defined. There, partition means only the physical division. That contrast is in [Dayabhaga Coparcenary, and Property under Dayabhaga Law].

Who may demand partition

MU asks "who are entitled to share on partition", and the honest answer separates two different questions: who may demand it, and who takes a share when it happens. They are not the same list.

Who may demand a partition

Every coparcener. Any coparcener may demand partition at any time, without giving a reason and without the consent of the others. A single coparcener's demand severs him from the family.

A daughter, since 9 September 2005, because section 6(1) makes her a coparcener with the same rights as a son.

A son, grandson and great-grandson, being coparceners, may demand partition even against the father's wishes. This was the Mitakshara position and the Dayabhaga position was the opposite, since there a son had no interest during the father's lifetime.

A minor coparcener, through his next friend, and the court will order a partition if it is satisfied that it is for the minor's benefit. That qualification applies to a minor alone: an adult need show nothing.

An alienee of a coparcener's interest, in those regions where such an alienation or a court sale was recognised, may sue for partition to work out what he has bought.

A father, who under the classical law had a special power to effect a partition between himself and his sons, and among the sons, even without their consent, provided he acted in good faith and made an equal division.

Who takes a share when a partition happens

This is a longer list, because certain members who are not coparceners are entitled to a share when the coparceners divide, though they cannot demand a division themselves. Under the classical law they were: