PARTITION
• According to Hindu Law, Partition generally means a division or splitting of a joint family into
smaller, separate and independent units, with conferment of separate status on the
undivided coparceners because the Coparcener hold the coparcenary property as one unit.
• There must be at least two coparceners for partition because it is not merely the division of
joint family but also it is disruption of the undivided coparcenary in a Joint family.
DE FACTO AND DE JURE GUARDIAN
• Coparcenary implies community of interests i.e., the Coparceners are joint owners of the
property and unity of possession i.e., joint physical possession or enjoyment. If the
Community of interests is broken or specified, even if unity of possession continues, a
partition is said to be taken place in the eyes of law. The extent of ownership and shares are
now fixed and no longer remains fluctuating, with no scope of application of survivorship.
This is called de jure partition.
• The actual physical division of property in accordance with shares so specified, is known as
de facto partition or partition by metes and bounds.
SUBJECT OF PARTITION
• The only property that can be divided on a partition is coparcenary property. Where property
is in its nature indivisible for instance, animals, furnitures etc., it may be sold and its value
distributed or it may be valued and retained by one coparcener exclusively and the amount
credited to his share.
• Although the ownership of the Coparcenary property is with the Coparceners only, the right
to possess and enjoy is hold by all the joint family members. There are many adjustments of
claims before partition of property such as debts taken by Karta for the purposes allowed
under Hindu Law, antecedent debts of father, maintenance of certain family members,
marriage expenses and performance of ceremonies etc.
• In the case of Kondiram v. Krishna, AIR 1995 SC 297, it was held that it should be understood
that only coparcenary property is liable to partition but not the separate property which
absolutely belongs to the owner thereof. Once severed from the joint family property, the
property cannot be clubbed back therein in order to become the subject matter of the
partition.
SUBJECT OF PARTITION
The following properties are not liable to partition
• Impartiable property
• Property indivisible by nature such as animals
• Family idols and relics which are object of worship
• Separate property of a member
• The common way, road of ingress to or egress from the house or gardens or the like
ESSENTIALS OF PARTITION
• There are three essentials for a demand of Partition.
1. Formation of an intention to separate from the joint family
2. A declaration of an intention to separate.
3. Communication of intention to Karta and if he is unavailable, to other Coparceners.
MODES OF PARTITION
• Partition may be effected by any of the following ways:
1. Partition by conduct.
2. Partition by Suit.
3. Partition by arbitration.
4. Partition by agreement.
5. Partition by will.
RE-OPENING OF PARTITION
• Generally, a partition is irrevocable. However, there are certain exceptions to this
general rule that shares are divided only once. A partition can be re-opened in the
following circumstances:
1. Fraud
2. Son in the womb
3. Son conceived and born after partition
4. Adopted son
5. Disqualified Coparcener
6. Absentee Coparcener
7. Minor Coparcener
8. Property added after partition.
REUNION
• Reunion means to unite again. It signifies that in the past, these persons had a joint status. It
is only the coparceners who generally affect the joint status, followed by partition and
therefore, it is only at the instance of coparceners, that a reunion can take place.
• After partition, the separated members can come back in two ways.
1. They can maintain the severance but can dwell together or trade together However, they do
not regain the status of coparceners and this coming together again, is totally different from
the formal re-union.
2. They can come together under a formal re-union.
The Privy Council in the case of Balabux v. Rukhmabai, PC 1903, held that a reunion in a joint family,
more so with respect to property, can only take place between person who were parties to the
original partition.
The first and most important element of a reunion is an agreement based on a desire of the
parties to come back together again.
It is not necessary at all that the parties bring into the common pool, the properties in the
same ratio in which they had at the time of partition, taken them.
A reunion restores the joint family and the coparcenary.
Under Hindu Law, the general presumption is that every Hindu family is joint unless the
contrary is proved. But once a partition in proved, the presumption is that the family remain
separate or divided.
Partition is a very common phenomenon and a reunion is an exception. Thus, re-union has to
be very strictly proved like a disputed fact.