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

The father's wife, who took a share equal to a son's when a partition was made between the father and the sons.

The widowed mother, who took a share equal to a son's on a partition among the sons after the father's death.

The paternal grandmother, on a partition between her grandsons.

Those entitlements come from the classical law and have been substantially overtaken. The Hindu Succession Act now gives the widow and the mother their rights as Class I heirs on a death, worked out through the notional partition of section 6(3), and the classical share on partition is of much less practical importance. A good answer states the classical rule and then says that.

A son in the womb. A son conceived at the time of the partition and born afterwards is entitled to a share; and if no share was reserved for him, he may have the partition reopened.

An adopted son takes as a natural son does.

The modes of partition

MU asks for these expressly, so learn them as a list of six.

1. By declaration of intention. An unequivocal declaration by a coparcener of his intention to separate, communicated to the others, severs his status from that moment. No writing, no registration and no consent is needed. The communication is what matters, and the severance dates from the declaration, not from the others' reaction.

2. By agreement. The coparceners may agree to divide, and the agreement effects the severance.

3. By notice. A notice sent by one coparcener to the others expressing an unambiguous intention to separate operates as a declaration under mode 1.

4. By institution of a suit. The filing of a suit for partition is itself an unequivocal declaration, and the severance takes effect from the date of the plaint, even if the suit is later dismissed or withdrawn.

5. By arbitration. A reference by the coparceners to arbitrators to divide the property effects a severance from the date of the agreement to refer, whether or not an award follows.

6. By conversion or by marriage under the Special Marriage Act. A coparcener who ceases to be a Hindu by conversion is separated, though he takes his share; and a member who marries under the Special Marriage Act is severed by section 19 of that Act, unless section 21A applies, which is [The Effect on the Joint Family and on Succession].

Some writers add partition by the father's own act as a seventh mode, on the special power described above.

The one mode that has been closed

Oral partition. Under the classical law an oral partition was as good as any other, since severance needs no writing.

That is no longer true for the purposes of section 6. The Explanation to section 6(5) defines partition, for that section, as a partition made by a registered deed under the Registration Act 1908, or one effected by a decree of a court. In Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1, the Supreme Court held, at point (v) of its answer, that because of the rigour of that Explanation a plea of oral partition cannot be accepted; that in exceptional cases an oral partition supported by public documents, and finally evinced in the same manner as if effected by a decree, may be accepted; and that a plea of partition based on oral evidence alone must be rejected outright.

That is a large practical change and the reason for it is obvious: without it, a family faced with a daughter's claim could simply assert that it had partitioned years earlier and produce relatives to say so.

The property that is divided

Divisible. All coparcenary property.

Not divisible, but adjusted. Property that cannot be divided without destroying its value, such as a staircase, a well, or a right of way, is left in common enjoyment; and where an equal division is impossible the court may make an owelty, a money adjustment, or sell the property and divide the proceeds.

Not divisible at all. A member's separate property. And impartible property, such as an estate descending by a special custom or tenure.

Reserved. Provision must be made out of the estate for the maintenance of dependants, for the marriage expenses of unmarried daughters, and for the debts of the family, before the residue is divided.

The effect of partition

MU asks for this in terms, so it deserves its own list.

The joint status ends between the separating coparcener and the rest.

The share becomes separate property as against the other coparceners, but it is coparcenary property as regards his own sons, who take an interest in it by birth. That is the point made in [Property under Mitakshara Law: Separate and Coparcenary] and it is the one most often missed.

Survivorship stops operating between the separated member and the others.

He may deal with his share freely, sell it, gift it or will it away.

The right to maintenance out of the joint estate ends for those who take a share, and provision must have been made for those who do not.

The karta's authority over the separated share ends.

Reopening a partition

A partition, once made, is generally final. It may be reopened in a few cases:

• where a son was in the womb at the partition and no share was reserved for him;
• where a coparcener was absent and no share was allotted to him;
• where the partition was obtained by fraud, misrepresentation or undue influence;
• where property was fraudulently concealed by one coparcener, in which case the concealed property alone may be divided; and
• where a minor was allotted an unfair share, and the partition was to his prejudice.

Mere inequality, without more, is not a ground.

A worked example

Four brothers hold ancestral property. In March, A sends a registered letter to the others saying he no longer wishes to remain joint. In June the family divides the land by metes and bounds, but leaves the shop undivided. A's wife had been pregnant in March and a son was born in July. A's youngest brother D, aged sixteen, was represented by an uncle at the division and got a plainly unfair share.

When did the severance happen? In March. Partition is severance of status first, and it happens on an unequivocal declaration of intention communicated to the other coparceners; the registered letter is exactly that. The division in June is the second stage, division by metes and bounds.

Is the shop still joint? Yes. A partial partition is possible, as to property or as to persons, and the family may remain joint as to the shop.

Can the son born in July claim? Yes. A partition may be reopened for a son in the womb at the partition who was not provided for.

Can D upset his share? Yes. Unfairness to a minor is a ground for reopening, and a minor may in any case sue for partition through a next friend where the court is satisfied it is for his benefit.

Could D have demanded partition at sixteen? Yes, in that way; the right to demand does not depend on majority, but the court must find the partition to be for the minor's benefit.

What about the mother? The wife, widowed mother and grandmother took a share when a partition happened, without being able to demand one.

Can a daughter demand it? Yes, since 9 September 2005, because she is a coparcener.

Suppose the brothers say there was an oral partition in 2003. For section 6 purposes an oral partition is not accepted: the Explanation to section 6(5) requires a registered deed or a decree, and Vineeta Sharma says so.

What does A's share become? Separate as against his brothers, and ancestral as regards his own sons.

What it does NOT mean

Partition is not division by metes and bounds. That is the second stage; the first is severance of status, which happens on communication of an unequivocal intention.

A partition need not be total. It may be partial as to property or as to persons.

Not everyone who takes a share can demand one. The wife, widowed mother and grandmother took a share when a partition took place, but could not demand it.

A minor's right is not a right to sue as of course. The suit is by a next friend, and the court must be satisfied that the partition is for the minor's benefit.

An oral partition is not accepted for section 6. The Explanation to section 6(5) requires a registered deed or a decree.

A partition is not lightly reopened. The grounds are a son in the womb, an absent coparcener, fraud or concealment, and unfairness to a minor.

The share taken is not simply separate. It is separate against the co-sharers and ancestral for the taker's sons.

Quick revision

• What it means: severance of status first, on an unequivocal declaration communicated to the others, then division by metes and bounds.
• Who may demand it: any coparcener, without a reason, including a daughter since 2005 and a minor through a next friend where the court finds it for his benefit. The wife, widowed mother and grandmother take a share when a partition takes place but cannot demand one.
• The modes: declaration of intention; agreement; notice; suit; arbitration; and conversion or marriage under the Special Marriage Act.
• Oral partition: not accepted for section 6, on the Explanation to s.6(5) and Vineeta Sharma.
• What is divided: coparcenary property; certain property is impartible by custom, and provision must be made for maintenance, marriage expenses, debts and ceremonies before division.
• The effect: the share is separate against the co-sharers and ancestral for the taker's sons.
• Reopening: a son in the womb not provided for; an absent coparcener; fraud or concealment; and unfairness to a minor.

Test yourself

1. What is partition, and when does it take place? Partition is the severance of the joint status. It takes place when a coparcener makes an unequivocal declaration of his intention to separate and communicates it to the other coparceners; the actual division of the property by metes and bounds is a separate and later stage.

2. Who is entitled to a share on partition? Every coparcener, including a daughter since 9 September 2005. In addition, when a partition takes place, the wife takes a share equal to that of a son, and the widowed mother and the paternal grandmother take shares, although none of them can demand a partition.

3. State the modes of effecting partition. By a declaration of intention communicated to the other coparceners; by agreement; by notice; by a suit for partition; by arbitration; and by conversion to another religion or by marriage under the Special Marriage Act.

4. When may a partition be reopened? Where a son was in the womb at the time and no share was reserved for him; where a coparcener was absent and left out; where the partition was brought about by fraud or by concealment of property; and where it was unfair to a minor coparcener.