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Partition, is an act by which a coparcener severs his relations with joint family and loses his status of coparcener and becomes an independent individual from the links of joint family. An important consequence of such partition is that the share of coparcener or coparceners seeking partition which is till partition uncertain, fluctuating and unpredictable, becomes specific and definite, as a result of partition, and thus allotted to the respective members.
According to the Mitakshara Law, it is the adjustment of the diverse interests regarding the whole, by distributing them into particular portions of the aggregate. Therefore, Mitakshara partition is used into two distinct senses: firstly, the adjustment into specific shares the diverse rights of the different members according to the whole family property; secondly; the severance of the joint status, with the legal consequences resulting therefrom. It has been defined as the crystallization of the fluctuating interest of a coparcenary into a specific share in the joint family estate.
According to Lord Westburn- there are two stages in partition under Mitakshara
- Division of Right – Ascertaining and fixing with an intention to become separate, the share to which each coparcener is entitled.
- Division of property- Actually making off, and assigning portions of the erstwhile joint estate to individual coparcener in portion to the share of each.
Under the Dayabhaga law, it means division of property in accordance with the specific share of the coparcener. It means, splitting up joint possession i.e. parting or dividing the share among coparcener according to metes and bound. Division of property in accordance with the specific share of the coparceners. Under the Dayabhaga the essence of coparcenary is unity of possession, while in Mitakshara it is unity of ownership
Under Dayabhaga Law, every adult coparcener whether male or female is entitled to enforce partition.
Persons not entitled to enforce partition under the Dayabhaga Law are:
- Sons, Grandsons and great grandsons have no birth interest in ancestor property against their father, so there is no right for partition.
- It consider the illegitimate son of shudra becomes a coparcener with legitimate sons when they inherit the property after the death of the father.
- Father’s wife-no such right
- Childless step mother no entitle to a share after partition
PROPERTY LIABLE FOR PARTITION
It is only the coparcenary property which is subject to the partition. The separate property is not liable to partition at all, as it belongs absolutely to the owner thereof.
Secondly, the property to which the law of primogeniture applies, cannot be divided, e.g., a Raj. Nor can family idols and place of worship can be divided. Similarly, the following properties are not liable to partition:
- Impartible estate i.e., property which descends to one member only, either by custom or under any provision of law or by terms of grant.
- Property indivisible by nature, e.g., ponds, staircase, passage
- Family idols and relies which are object of warship
- Separate property of a member
- The places of worship and sacrifice or the property which has been dedicated to religious and charitable purposes.
- The well and the rights to draw water from the well
- The ornaments and the dress materials given to the wives of the coparceners
- The headship of a Math
Manu says- following properties are not subject to in division
- Properties indivisible by nature like Dress, vehicle, Ornaments, Cooked food, Water and female slaves, as road, garden, utensils, documents, right to way, furniture etc.
- Properties meant for pious use, or scarifies, object for worship.3.
- Separate property of a member
In respect of those properties three methods of adjustment are available-
- may be enjoyed by coparcenary by jointly or by turn
- May be allotted to the share of coparcener and its value adjusted.
- May be sold and distributed the incident
DEDUCTIONS AND PROVISIONS
Some provisions must be made out of the property liable to partition before any partition is affected.
- Debts incurred for joint family.
- Personal debts of the father not incurred for illegal or immoral purposes.
- Maintenance of dependent female members and disqualified heirs.
- Marriage expenses of unmarried daughters of the last male holder but not of the collaterals.
- Expenses for the funeral ceremony of the widow and the mother of the last male holder.
PERSONS WHO ARE ENTITLED TO DEMAND PARTITION
Every coparcener has a right of partition and entitle for share in partition.
- Father- he can impose a partition, partial or total between his minor son and himself with bonafide intention, else, it will reopen. In case of major son and father, it should be by mutual consent.
- Sons and Grandsons, and grate grandson. Under Bombay School, the son has no right partition without the assent of his father, if the father is join with his own father and in case of Punjab Customary Law, as under Punjab Customary law son have no right by birth.
- Son Born after Partition- according to Vishnu and Yajnavalkya the partition should be reopen to give the share after born son. However Gautama, Manu, Nerada says the after born son could get the share of his father alone
According to Mitakshara we have few rule for this-
- Son conceived at the time of Partition but born after it – person in the womb is equated the person exist. The tax lay down that if the pregnancy is know the partition should be postponed till the time child birth, if the other coparceners are not ready for this a equal share should be reserve if the child born son share should be allowed to them, in case female it should be expand on her marriage.
- Not in the womb when partition take place if the pregnancy is not known and no share has been reserved then the partition should be reopen after childbirth.
- Son begotten and born after partition- in this case two general rule under Mitakshara
- When Father has taken his share in the partition- son become the coparcener with his father.
- When Father has not taken his share in the partition – son has a right to reopen the partition and get his share.
- Adopted Son- he has right if partition take place after adoption, but if partition take place before adoption he has no right.
- Illegitimate Son- not entitle for partition and share but for maintenance only.
- Son void marriage and annulled marriage-not entitle.
- Minor Coparcener- no distinction between major or minor.
PERSONS NOT ENTITLED TO PARTITION BUT ENTITLED FOR SHARE AFTER PARTITION
No female has a right to partition but if partition takes place, some female (father’s wife, mother and grandmother) has a right for share in partition. However, after 2005 amendment, daughters are also entitled for it.
HOW PARTITION IS AFFECTED?
- Severance of Joint Status or interest-expression of intention- one member of joint family can express his intention to partition, even though no actual partition take place.
- by Notice
- by Will
- Conversion to another Religion.
- Marriage under special marriage act.
- by agreement
- by arbitration
- by father
- by suit
ALLOTMENT OF SHARES
Sons are not entitled for any share in presence of father. The share of deceased coparcener passes to his heir.