What is a Partial Partition? Describe the rules relating to partial partition.

Question: What is a partial partition? Describe the rules relating to partial partition.

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Answer

A Partition is an act by which a coparcener severs his relations with a joint family, loses his status as a coparcener, and becomes an independent individual from the links of the joint family.

A Partition between coparceners may be partial either in respect of the property or in respect of the persons making it. The members of a joint family can go ahead to make a division or severance in respect of a part of a joint property while retaining their joint status as a joint family and holding the rest of the properties of a joint and undivided family.

It is open to a member to separate himself and to have his share ascertained and partitioned off. The remaining coparceners, without any special agreement, may continue to be joint and enjoy the remainder as a joint family. But there is no presumption that the others remained united.

Where the evidence is available concerning their intention of the complete division of the properties, the joint status of the family comes to an end and if there is any undivided property in the hands of any one of the coparceners then the such property will be held by all the coparceners as a joint tenant, as held in the case Smt. Lila Wati and Ors. v. Paras Ram and Ors., AIR 1977 HP 1.

At the time of the partition between coparceners the following categories of the property will be put aside:

• impartible estate,
• the property which is being held along with some stranger who has got no relation with the joint family,
• the property which is not in the possession of a coparcener,
• the property which stood already divided between them, or
• the property which was outside the jurisdiction of the Court.

A Hindu father can separate himself from his sons and the sons may remain joint or he may separate from his son by one wife and remain joint with his sons by another wife. The Privy Council in a famous case, Balabux v. Rukmabai, (1903) 30 I.A. 130 held that there is no presumption when one coparcener separates from the others that the latter remained united.

An agreement among the remaining members of a joint family to remain united or to reunite must be proved like any other fact. After such a partition there is no presumption that there was a separation between one of the members and his descendants.

Effect of Partial Partition

On the separation of one coparcener from the others, a question arises as to whether the other members are deemed to be joint or re-united or separate. The question depends upon presumption and also to a great extent upon the intention of the parties.

It is to be seen whether the non-separating members intended to remain joint and to enjoy as members of a joint family what remained of their property after such partition. There is no need for any express agreement to this effect. Thus, the effect of partial partition may be summarised as follows:

• As regards partial partition to property, where coparceners divide the joint property except a portion of it, they are, in the absence of any indication to the contrary, tenant-in-common with reference to the excepted property.
• But where the partition is partial not in respect of property but the respect of persons making it, it has been held by a series of decisions that the remaining coparceners without any special agreement among themselves, may continue to be coparceners and enjoy as members of joint family the remaining property, and the question whether or not they continue to be joint or separate is to be determined on the evidence in each case.

Rules relating to Partial Partition

The rules relating to the presumption of partial partition have been laid down through several important decisions of the Privy Council and Supreme Court, they are:

The most basic and general principle is that every Hindu Family is presumed to be joint unless the contrary is proved.

Once one member of the joint family has separated from the others, there is no presumption that the rest will continue to live jointly. No express agreement is required for the same. The intention to remain joint may be inferred from their conduct. These were approved by the Supreme Court in Bhagabati Prasad v. Dulhin Rameshwari, 1951 S.C.R. 603.

In Haribaksh v. Babulal, 1924 51 I.A. 153, it was said that when there has been a separation between members of a joint family, there is no presumption made regarding the separation between one of the members and his descendent.

A Hindu father may get separated from his sons, and the sons may remain joint with each other, or the father may remain joint with his sons and wife while he is separated from another wife’s son.

In Palani Ammal v. Muthuven Katacharla, 1925 52 I.A. 83, it was said that in a suit for partition, the decree for partition is the evidence to show whether the separation was only a separation of the plaintiff from his coparceners or was a separation of all the members of the joint family from each other.

The presumption of separation of all the members cannot be made based on renunciation of an interest in the family property by one member.

No coparceners can enforce a partial partition against the other coparceners, even though the partition may be partial by mutual agreements of the parties.

In the K. T. Prasad v. C.I.T., 1982 1 S.C.C. 447, the Supreme Court again clarified a few principles of partition, they are:

• It is presumed that when there is a partition, it was a total partition, of both parties and property.
• There is no presumption that there has been a partition between one brother and his descendants, in the case of partition between two brothers.

Hindu law does not require that property must be partitioned by metes and bounds in every case of partition. A declaration of intention would be enough to bring the partition and it is open to the rest of the parties to enjoy their respective shares of the property as tenants in common.

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