PARTITION

Discuss the concept of partition under Hindu law and mention who is entitled to claim partition and explain who is entitled to get a share from joint family property.

In India, the provisions of a joint Hindu family are governed by Mitakshara law school and this concept is based upon Unity of ownership and Unity of Possession. Because in joint Hindu family, every member has an interest in a joint family property and he acquires that interest by birth. That is why all members of joint Hindu family can be considered co- owners.

But this joint Hindu family remains a joint till any member does not claim partition. If any member claims partition, then the joint family ceases to be joint and nuclear families or different joint families come into existence.

So basically, partition means fixing the share of each coparcener which was not fixed before the partition as the coparceners hold the coparcenary property as one/ common unit. In a joint Hindu family, the interest of every member is a fluctuating because every member acquires an interest by birth and due to the death or birth of any member the interest of another member fluctuates. But partition fixes the interest of every coparcener. It does not provide new interest to a member but it recognises old interest of a member.

According to Mitakshara law school, partition means two things:-
• De Jure Partition
• De Facto Partition

De Jure partition happens when the joint ownership of coparcenary is a broken. It determines the interest of all the members and after De Jure partition no interest of member fluctuates.

Whereas de facto partition happens when common possession and enjoyment of property is a broken. In this every member gets the Exclusive share out of the joint family property.

According to Mitakshara Law School, every property of a joint Hindu family whether movable or immovable is subject to partition. But the property like elephant, well, books, stair-case, Temple or idols are not subject to partition.

In the leading case of M.L. Subbaraya Setty vs M.L. Nagappa Setty (AIR 2002 SC 2006), The Supreme Court held that, “ if the joint family property consists of movable and immovable properties then each party must necessarily be given a share in all the movable and immovable properties.”
According to Mitakshara Law School, every member of joint Hindu family has an interest in a joint family property but the partition can be claimed by coparceners only.

According to this School only:-
• Father; or
• Son or Grandson or Great Grandson; or
• Adopted Son; or
• Daughter (After amendment of 2005); or
• Alienee

has right to claim partition.

According to this school, if a child is in the womb of his mother, it is necessary for other coparceners to wait till the birth of child but if they do not wait and divide the share, so father must reserve a share for the unborn child. If a father does not reserve a share than that child can claim to reopen the partition after taking the birth.

Moreover, according to this school, minor coparcener cannot claim partition because of his immature intellect. But if a Karta ill- treats the minor or if it is prejudice for him to remain joint then any Guardian or next friend of a minor coparcener can claim partition on his behalf. If a Guardian claims partition and court thinks that it is for the welfare of child then Court always grant partition.

According to Mitakshara law school, no female has right to claim a partition but if partition occurs then there are certain females who are entitled to get share out of the joint family property and they are:-
• Father’s wife
• Mother
• Grandmother- if a partition occurs between her grandsons, she will get a share equal to that of grandson. Moreover, if a partition occurs between her son and son of a predeceased son, she will get a share equal to that of grandson but if partition occurs between her son and their sons, then according to some High Courts she will get a share but according to other High Courts she will not get a share.

So it can be said that even if every member has an interest in joint family property, only coparceners have a right to claim partition but if they claim the partition then according to Mitakshara law school, mother, grandmother and father’s wife are entitled to get a share even if they cannot claim partition.

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