This Article “Partition of Hindu Joint Family Properties” is written by M.M Kotwal
In the Hindu society, there is a presumption that Hindu families are living in a state of union unless the contrary is established. Members of Hindu families are ordinarily joint and undivided in estate, food and worship. The concept of a Hindu Undivided Family (HUF) as understood today, is an integral feature of the Hindu society and is one that has evolved on the basis of customs. the ancient Schools of Hindu laws are believed to be of two types (1)Mitakshara School and (2) Dayabhaga School
Partition in hindu undivided family (HUF) is an act which are coparceners survives his relation with joint family and loses his status of coparcener and become an independent individual from the link of joint family. An important consequences 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 result of partition, and thus allotment of the respective members.
What is HUF Property?
The existence of joint property is not a prerequisite for constituting a HUF. The concept of HUF is not related to possession of any property by the family. A HUF is a situation which is understood not with reference to the existence of a joint estate as an essential requisite.
A family that does not own any joint property may still have the character of a Hindu joint family. This jointness is understood in terms of faith and food. The reason is that a Hindu is born as a coparcener of the joint family. In the context of the situation, it would follow as a consequence that it is not necessary that at any point of time a HUF must have a connection with the ancestral property. The main requirement is the manifestation of jointness and the very basic foundation that a Hindu is born as a coparcener of the family.
What are the modes of partition in HUF property?
According to the Supreme Court, a partition may be partial or total. Partition could be partial with respect to the members of a joint family or joint family property. When a partition takes place, the presumption is about the total partition.
But where some members contend that the partition was partial with respect to members or property, the onus is on them to prove it. A partition can be affected by the father even during his lifetime among his sons.
A partition could also take place by:
(i) agreement, (ii) institution of a suit to that effect, (iii) arbitration. It is not necessary for a partition that the joint family property is divided by every bit of it. The severance in the joint status could be brought about by any of the above modes and some property could be used by the coparceners as joint tenants.
The following modes of partition are important:—
- Partition by Mere Declaration
- Partition by Will
- Conversion to another Faith
- Marriage under Special Marriage Act, 1954
- Partition by Agreement
- Partition by Arbitration
- partition by father
- partition by suit
Who has a right to partition and share in HUF property?
Both under mitakshara and dayabhaga school, every coparcener has a right to partition and is entitled to share.
- A minor coparcener can also ask for partition.
Every coparcener has a right to partition except in case of
- Unqualified coparcener
Under Bombay school, sons cannot ask for partition against their father if the later is attached with his own father or collateral.
The following people can claim partition and are entitled to share in the partition-
- Father– under mitakshara school, the father not only has a right to partition but also has the power to effect partition among the sons. The father can also impose partial partition among the sons but he must act bona fide and not unfair to anyone. A suit to re-open, the partition can take place in case of partiality or mala fide partition by the father.
- Son, grandson, great-grandson -under mitakshara school, son, grandson and great-grandson have a right to seek partition
- Son born after partition– According to Vishnu and Yajnavalkya the partition should be reopened to give the share to the son born after partition. However, Gautama, Manu, Nerada held a different view about the same.
Before the amendment of 2005, females couldn’t be the coparceners but some females like the mother, father’s wife and grandmother had the right to share at the time of partition.
What are the property rights of a daughter in HUF property after 2005?
Section 6 of the Hindu Succession Act, 1956, which deals with coparcener’s right in the HUF property, was amended in 2005 w.e.f September 9, 2005. With this amendment, daughters have been put at par with sons, as far as coparcenary rights in HUF property are concerned. Consequently, the daughter gets all the rights attached to coparcenary, including the right to ask for partition of the property and to become a Karta of the HUF.
However, only the daughters who are born in the family will get the coparcenary rights. Other female members, who come into the family by virtue of marriage, are still treated as members only. Thus, they are not entitled to ask for the partition but are entitled to maintenance and shares as and when partition takes place
Which are the Properties 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 family idols and place of worship can be divided similarly
The followings properties are not liable to partition:
- Implacable is estate i.e., the property that descends to one member only either by custom or under any provision of law or by terms of the grant.
- Property invisible by nature e.g ponds, passage, staircase,
- Family idols and relies which are subjected to worship.
- Separate property of a member
- The place of worship and sacrifice for the property which has been decided to the religious and charitable purpose,
- The well and the rights to draw water from the well
- The ornaments and the dress materials are given to the wives of coparceners
In Mulla’s Hindu Law (17th Edn) Article 212(2), 213, it is stated :
“‘ 212. Joint Hindu family:– The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in the estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint.
Where there are joint estates, and the members of the family become separate in an estate, the family ceases to be joint. Mere severance in food and worship does not operate as a separation. Possession of joint family property is not a necessary requisite for the constitution of a joint Hindu family. Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family.
- Mulla’s Hindu Law (17th Edn)