Discuss the various modes of partition and explain how partition is effected under Hindu law.
According to Mitakshara law school, every member of joint Hindu family acquires an interest in joint family property by birth. Even if he has an interest in joint family property but according to Hindu law he cannot claim partition. Only coparceners have right to claim the partition. They can claim the partition at any time and if they claim the partition than Karta has no power to refuse to divide the undivided share of joint family property.
According to this school, joint Hindu family remains a joint till any member does not claim partition. If any member claims partition, then joint family ceases to be joint and nuclear families or different joint families come into existence.
If any coparcener wants to claim partition, then firstly he has to form an intention and after this he has to declare that intention. The formation and declaration of intention must be clear and unambiguous. For example:- “I do not wish to continue as a joint family member anymore so hand me my share.”
In the leading case of Girija Bai vs Sadashiv Dhundiraj (AIR 1916 PC 104), The Hon’ble Court held that, “Declaration can be verbal or in writing, through an informed letter or a formal notice.”
In the leading case of Raghavamma vs Chenchamma (AIR 1964 SC 136), The Supreme Court held that, “the partition is effected from the date on which communication is put into transmission and not from the date on which it reaches other coparceners.”
The demand of partition is a personal right and it cannot be delegated in favour of any person. Only coparcener during his lifetime can claim the partition. In the Mitakshara law school, a coparcener can claim partition by different modes like:-
• By Declaration:- A simple indication by coparcener of his intention for partition is sufficient according to the Mitakshara law school. It may be either in writing or orally or by an act.
• By Father:- A father in a joint Hindu family may cause severance of sons even without their consent. He is competent to effect such partition during his a lifetime and it would be binding upon his sons including minor. But if the interest of any son is affected by an unequal division then they can challenge the partition.
• By an Agreement:- According to Mitakshara law school, partition can be claimed by an agreement. It may be either in oral form or in writing. According to this school if all the coparceners decide to fix a share by partition by making an agreement that is a valid under Hindu law. In this the severance of status takes place from the date of signing the agreement.
• By Arbitration:- According to Hindu law, partition can be occurred by arbitration. If the coparceners decide to appoint a third person as arbitrator and in the proceedings if third person fixes the share that will be binding upon all the coparceners.
• By Notice:- According to Hindu law, if one of the coparcener sends a notice to another coparceners for partition that is a valid and the partition will take place from the date of sending the notice.
• By Will:- Partition may be affected by a coparcener by making a will containing a clear and unequivocal intimation to the other coparceners of his desire to severe himself from the joint family. This right has been given by Section- 30 of Hindu Succession Act, 1956.
• By conversion to another Religion:- According to Hindu law, partition will be effective from the date on which any coparcener converts to another religion. After conversion he will not remain member of a joint Hindu family but in this case other members of joint family remains the member of joint Hindu family.
• By Marriage under Special Marriage Act, 1954:- If a member of a joint Hindu family solemnizes a marriage with non- Hindu according to Special Marriage Act, 1954, then he will automatically severe from the joint Hindu family. From the date of marriage, the partition will be effective and he will get his share. But other members will remain the members of a joint Hindu family.
• By Suit:- If a member of a joint Hindu family files suit for partition in the court of law, it shows his clear and unequivocal intention and partition will be effective from the date of filing the suit and not from the date when Court passes a decree and fixes the share of other coparceners.
• By Conduct:- According to Mitakshara law school, sometimes the conduct of any coparcener shows his intention of partition. For example:- if a coparcener starts living apart from other coparceners and manages the affair of his undivided share himself, it shows his intention to get the exclusive possession of his undivided share of joint family property. So, on the basis of this conduct also partition can be occurred.
According to Mitakshara law school, these are the various modes through which a coparcener can claim a partition in the joint Hindu family and can get his undivided share from the joint family property. If a coparcener claims a partition through any of the mode, it does not give him any new interest but it recognises that share which he has through his birth.