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1.4.7
1.4.8
CHAPTER 1
SCHOOLS OF HINDU LAW
1.4.10
1.5
1.5.3 Differences between mitakshara and dayabhaga
1.6 The doctrine of Factum Volet
1.6.1
CHAPTER 2
JOINT HINDU FAMILY
2.1
2.2
2.3
2.3.1
2.4 Whether a joint family may consist of a single male member and widows of deceased male members?
2.5 Composition of a hindu joint family
2.6 Characteristics of a hindu joint family
2.7 A hindu, even if he be joint may possess separate property
2.8
2.9
2.10
2.11 Difference between hindu joint family and hindu undivided family/joint property/coparcenary property
2.11.1 Presumption that a joint family continues joint
2.11.2 No presumption that a joint family possesses joint property
2.12 Succession under section 8 of the Hindu Succession Act, 1956 post CWT v. Chandersen
CHAPTER 3
KARTA OF JOINT FAMILY: POSITION, POWERS AND PRIVILEGES
3.1 Karta
3.1.1 Karta or Manager’s legal position 53
3.2 Who can be a karta? 55
3.2.1 Senior most member
3.2.2 Whether junior member can be karta? 56
3.2.3 Female members as karta 59
3.2.4 Widow of a karta cannot be the karta 61
3.2.5 There cannot be two Karta 62
3.3 The karta cannot be equated with the manager of property 62
3.4 Powers of karta 62
3.4.1 Power of alienation of joint family property 63
3.4.2 Management of family property/business 71
3.4.3 Power over income and expenditure 72
3.4.4 Right to represent in suit etc. 74
3.4.5 Power to enter into compromise 75
3.4.6 Power to refer a dispute to arbitration
3.4.7 Power to contract debts for family purpose
3.4.8 Loan on promissory note
3.4.9
3.4.10 Power to give discharge
3.4.11 Power to acknowledge debts 78
3.5 Whether karta can possess separate property 79
3.6 Whether a business in the name of a karta could be presumed as a joint family asset? 79
3.7 Karta as a partner would not ipso facto make the other member of his family as partners 81
3.8 Karta’s duties and liabilities 81
3.8.1 Duty to maintenance 82
3.8.2 Duty to render accounts at the time of partition 83
3.8.3 Duty to recover debts due to the family 84
3.8.4 Duty to represent joint family in suits etc. 84
3.8.5 Duty not to start new business without the consent of all the coparceners 84
I-12
CONTENTS
3.8.6 Duty not to alienate the property without legal necessity or bene t of the estate 85
3.9 Position of karta under dayabhaga schools 85
3.9.1 Karta’s powers and liabilities in dayabhaga schools 86
3.10 Dayabhaga joint family structure 86
3.10.1 Right by birth 86
3.10.2 No right of survivorship 86
3.10.3 Succession of property
CHAPTER 4
COPARCENARY
4.1 Introduction
4.2 Formation of mitakshara coparcenary
4.2.1 Daughters are also coparcener
4.3 Characteristics of mitakshara coparcenary 102
4.3.1 Coparcenary is created by birth 102
4.3.2 Community of interest
4.3.3 Unity of ownership
4.3.4 Indivisible interest until partition 104
4.3.5 Coparcener has no xed share 105
4.3.6 Devolution by survivorship (before 2005) 106
4.3.7 Coparcenary within a coparcenary 107
4.4 Rights of daughter as coparcener
4.4.1 Hardly matters if the father has died before december 20, 2004 109
4.4.2 Effect of marital status of a daughter 110
4.4.3 Effect of pre-deceased daughter 110
4.5 Incidents of joint family or coparcenary property 110
4.6 Right of coparceners under mitakshara school 111
4.6.1 Birth right to ancestral property 111
4.6.2 Common ownership 111
4.6.3 Right of common enjoyment/possession of the coparcenary property 112
4.6.4 Right to management
4.6.5 Right to alienation
4.6.6 Right to renounce his interest
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4.6.7 Right to challenge an unauthorised alienation
4.6.8 Right to partition
4.6.9 Right to make acquisitions
4.7 Sole surviving coparcener
4.8 Ouster from coparcenary
4.8.1 Conversion
4.8.2 Marriage of a coparcener to a non-hindu under the Special Marriage Act, 1954
4.8.3 Murder
4.9 Children of void and voidable marriage as a coparcener 121
4.10 Adopted child and coparcenary 122
4.11 Illegitimate child as a coparcener 123
4.12 Devolution of the property by testamentary or intestate succession section 6(3)
4.13 Liabilities of coparceners
4.14 Unobstructed and obstructed heritage
4.14.1 Unobstructed heritage/property
4.14.2 Obstructed heritage/property
4.15 Formation and composition of coparcenary in dayabhaga school 126
4.15.1 Formation of coparcenary upon death 126
4.15.2 Whether coparcenary may consist of females only? 126
4.16 Speci c rules of dayabhaga coparcenary formation 126
4.16.1 Key features of dayabhaga coparcenary 127
4.17 Heritage and property classi cation under the dayabhaga school 129
4.17.1 Sapratibandhadaya (obstructed heritage) in dayabhaga 129
4.17.2 Property classi cation in dayabhaga 129
4.17.3 Types of coparcenary property 129
4.17.4 Types of separate (self-acquired) property 130
4.18 Differences in coparcenary and coparcenary property: dayabhaga vs. mitakshara prior to 2005 130
4.19 Relevancy of coparcenary in the modern times 131
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CHAPTER 5
DOCTRINE OF PIOUS OBLIGATION AND ANTECEDENT DEBTS
5.1 What was the origin of doctrine of pious obligation?
5.2 PRE-2005 scenario
5.3 POST-2005 scenario
CHAPTER 6 PARTITION
6.1 Meaning
6.2 De facto partition and de jure partition
6.3 Subject matter of partition
6.4 Funeral expenses of the mother
6.5 Properties incapable of division
6.6 Are the idols and places of worship divisible?
6.7 Can there be a partition of right of way?
6.8 Whether a coparcener can include a term or stipulation be put under the deed for the right to easement?
6.9 Share allotted to coparcener in partition
6.10 Who can claim partition?
6.10.1 Coparceners
6.10.2
6.10.3 Daughters
6.10.4 Children of void or voidable marriages
6.10.5 Illegitimate son and daughter
6.10.6 Purchaser of coparcener’s interest
6.10.7 Absent coparcener
6.10.8 Minor’s right to claim partition
6.11 Who cannot claim partition?
6.11.1 Father’s wife or wife of topmost coparcener
6.11.2 Widowed mother
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6.11.3 Grandmother
6.12 Procedure to claim partition or how partition is effected 167
6.12.1 Severance of status 167
6.13 Doctrine of relation back 172
6.14 Revocation of partition 173
6.15 Mode of partition 174
6.15.1 Partition by suit
6.15.2 Partition by agreement
6.15.3 Oral partition 176
6.15.4 Unilateral declaration 176
6.15.5 Partition through arbitration
6.15.6 Partition by conduct 177
6.15.7 Partition by will
6.15.8 Partition by father 177
6.15.9 Partial partition between the members of the family 178
6.16 Rules regarding the calculation of partition by metes and bounds 180
6.16.1 Application of rules – illustrations 181
6.17 Partition under dayabhaga law 187
6.18 Family arrangement v. partition 188
6.18.1 Key features of family arrangements in hindu law 188
6.18.2 Eligibility 189
6.18.3 Essential conditions for validity of family arrangement
CHAPTER 7
REOPENING OF PARTITION AND REUNION
7.1 Reopening of partition 198
7.1.1 Son begotten and born after partition 200
7.1.2 Fraud 200
7.1.3 Mistake 200
7.2 Reunion 201
7.2.1 How is reunion effected?
7.2.2 Effect of reunion
7.2.3 Can there be a reunion agreement entered into by the father of the minor on his behalf?
7.2.4 Proof of reunion
CHAPTER 8
HINDU SUCCESSION (AMENDMENT) ACT, 2005: FEATURES AND CHANGES BROUGHT
8.1 Introduction 209
8.2 Need for codi cation of hindu law 209
8.3 Hindu Code Bill, 1948 211
8.4 Main features of the Hindu Succession Act, 1956 212
8.5 Background for the amendment in Hindu Succession Act, 1956 214
8.6 Changes introduced by the Hindu Succession (Amendment) Act, 2005 217
8.6.1 Deletion of section 4(2) of the Act 217
8.6.2 Rise in con ict in many laws 218
8.6.3 Abolition of doctrine of survivorship 219
8.6.4 Deletion of section 23 221
8.6.5 Deletion of section 24 222
8.6.6 Introduction of daughter as a coparcener 223
8.6.7 Married daughters as coparceners 223
8.6.8 Retaining the concept of notional partition 225
8.6.9 Concept of pious obligation abolished 225
8.6.10 Female coparceners eligible to make a testamentary disposition 226
8.6.11 New category of class-I heir introduced 227
8.6.12 Effect of Repeal and Amending Act, 2015 227 SUMMARY 228
CHAPTER 9
HINDU SUCCESSION ACT, 1956: A DETAILED ANALYSIS
9.1 Important de nitions
9.1.1 Agnate (section 3(a))
9.1.2 Cognate (section 3(c))
9.1.3 Fullblood “half blood” and “uterine blood” (section 3(e))
9.1.4 Heir (section 3(f))
9.1.5 Intestate (section 3(g))
9.1.6 Related (section 3(j))
9.2 General provisions relating to succession
9.2.1 Full blood preferred to half blood (section 18)
9.2.2 Mode of succession of two or more heirs (section 19)
9.2.3 Per capita and per stripe
9.2.4 Right of child in womb (section 20)
9.2.5 Presumption in cases of simultaneous deaths (section 21)
9.2.6 Preferential right to acquire property in certain cases (section 22)
9.2.7 Murderer disquali ed (section 25) 247
9.2.8 Convert’s descendants disquali ed (section 26) 248
9.2.9 Succession when heir disquali ed (section 27) 249
9.2.10 Disease, defect, etc., not to disqualify (section 28) 250
9.2.11 Escheat (section 29)
9.2.12 Testamentary succession (section 30)
CHAPTER 10
GENERAL RULES OF SUCCESSION OF A HINDU MALE DYING INTESTATE
10.1 Devolution of interest in coparcenary property (section 6) 257
10.1.1 Detailed explanation 259
10.1.2 Nature of property on succession where the father dies intestate 260
10.1.3 Applicability of section 6 after 2005 amendment 264
10.2 Devolution of property under intestate succession 267
10.2.1 Separate property 268
10.2.2 Property at the hands of sole surviving coparcener 268
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10.2.3 Undivided share of heir in mitakshara coparcenary
10.2.4 Undivided share of heir in dayabhaga school
10.2.5 Share obtained on partition
10.3 Interest in tarvad, tavashi, kutumba, kavaru or illom (section 7)
10.4 Classi cation of heirs (section 8)
10.5 Rules regarding devolution of property
10.5.1 If there are no heirs in the class-I category
10.5.2 If there are no heirs in the class-II category
10.5.3 If there is no agnates
10.5.4 Class I heirs
10.5.5 Doctrine of survivorship (abolished in 2005)
10.5.6 Class II heirs
10.5.7 Recommendations of 204th Law Commission Report, 2008
10.6 Distribution of property among heirs in class I of the Schedule (section 10)
10.7 Distribution of property among heirs in class II of the Schedule (section 11)
10.8 Order of succession among agnates and cognates (section 12) 303
10.8.1 Classi cation of agnates
10.8.2 Cognates
10.9 Computation of degrees (section 13)
10.10 Dayabhaga school
CHAPTER 11
GENERAL RULES OF SUCCESSION OF A HINDU FEMALE DYING INTESTATE
11.1 Property rights of hindu female prior to Hindu Succession Act, 1956
11.2 Stridhan and woman’s estate
11.2.1 Hindu women’s estate before Hindu Succession Act, 1956
11.2.2 Woman’s property
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11.2.3 Introduction of hinduwomen’s Right to Property Act, 1937
11.3 Introduction of section 14 of Hindu Succession Act, 1956
11.3.1 Purpose of section 14
11.3.2 Requirements for the application of section 14(1)
11.3.3 Conversion of limited ownership into full ownership (section 14(1))
11.3.4 Is section 14 constitutional?
11.3.5 Mode of acquisition of property
11.4 Restricted estate explicitly conferred under a will or an award (section 14(2))
11.4.1 Difference between limited interest and restricted interest
11.4.2 Con ict in decision of V. Tulsamma v. Shesha Reddy and Karmii v. Amru
11.5 Female dying intestate under the Hindu Succession Act
11.5.1 Section 15(1)
11.5.2 Category of heirs as per section 15(1)
11.6 Section 15(2)
11.6.1 Section 15(2)(a)
11.6.2 Property inherited from husband or father-in-law (Section 15(2)(b))
11.7 Section 16 - Order of succession and manner of distribution among heirs of a female hindu
CHAPTER 12
HIBA: CONCEPT, FORMALITIES, CAPACITY, REVOCABILITY
12.1 Meaning
12.4
12.5 Capacity
12.6 Gift to
12.7
12.11.2
12.11.3
12.11.4 Property
12.11.5
12.11.6
12.12 Marz-ul-maut
12.12.1
12.13.5
12.15 Contingent
12.16 Hiba of undivided
12.19 Hiba-ba-shart-ul-iwaz (conditional hiba)
12.20 Difference between hiba- bil -iwaz and hiba-ba-shartul-iwaz
12.21 Sadaqah
12.22 Ariyat
12.23 Difference between hiba and wasiyat
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13.1 Object
CHAPTER 13
WASIYAT: CONCEPT, FORMALITIES
13.2 Essentials of wasiyat
13.2 1 Testator (Al-musi)
13.2.2 Legatee (Al-musalahu)
13.2.3 Legacy/subject matter of wasiyat (musi bihi)
13.2.4 Executor (wasi)
13.2.5 Declaration of the will (sighah)
13.3 Type of wasiyat
13.3.1 Oral wasiyat
13.3.2 Written wasiyat
13.4 Revocable in nature
13.5 Conditions and guidelines of wasiyat
13.5.1 Limit of testamentary power
13.5.2 No bequest for legal heirs
13.5.3 Consent of the heirs need not be express and may be signi ed by conduct
13.5.4 Debt settlement
13.5.5 Bequest must be for lawful purposes
13.6 Charitable wasiyat (sadaqah jariyah)
13.7 Wasiyat in case a person is governed by Indian Succession Act, 1925
13.8 Difference between shia law and sunni law
13.9 Registration of wasiyat
CHAPTER 14
14.1 Meaning
14.2 Origin
14.3 Importance
14.4 Important terminology
14.5 Conditions to create a valid waqf
14.6 Types of waqf
14.6.1 Public waqf/religious waqf (waqf khayri)
14.6.2 Waqf al-sabil
14.6.3 Private waqf/family waqf (waqf-ulal-aulad)
14.6.4 Waqf ahli
14.7 Modes of creation of waqf in muslim law
14.7.1 Inter vivos (during the lifetime of the waqif) by dedication
14.7.2 Testamentary waqf (by will)
14.7.3 Waqf during marz-ul-maut (deathbed illness)
14.7.4 Waqf by immemorial use
14.8 Succession where two or more mutawallis are jointly appointed 456
14.9 Mutawalli from the female line/Female line of decent
14.10 Powers and duties of mutawalli
14.11 Heriditary rights to the of ce of mutawalli
14.12
14.14 Removal of mutawalli
14.15 Distinctions between waqf and sadqah
14.16 Distinctions between waqf and hiba
14.17 Distinctions between waqf and trust
14.18 Doctrine of cypress
14.19 Waqf Amendment Act, 2013
14.19.1 Power of wakf tribunal can entertain and adjudicate upon a dispute regarding eviction of a tenant holding wakf property
14.19.2 Key legislative changes and developments in the administration of waqf properties in india through Waqf Act
14.19.3 Analysis of the Waqf (Amendment) Bill, 2024 474
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14.19.4 What was the need of this bill?
14.19.5 The issues concerned with waqf board 475
14.19.6 Sachar Committee Report 475
14.19.7 Recommendations by the joint parliamentary committee 476
14.20 Key features of the Waqf (Amendment) Bill, 2024? 476
14.21 Recent Amendment in Waqf Act, 1995 478
CHAPTER 15
PRINCIPLES OF INHERITANCE UNDER MUSLIM LAW
15.1 Introduction
15.2 Sources of muslim law of inheritance
15.3 De nition
15.3.1 Agnates
15.3.2 Cognates
15.3.3 Full blood
15.3.4 Uterine blood 490
15.3.5 Consanguinity 490
15.3.6 True grandfather 490
15.3.7 False grandfather 491
15.3.8 True grandmother 491
15.3.9 False grandmother 491
15.3.10 Per capita 491
15.3.11 Per stripes 491
15.3.12 Descendants 491
15.3.13 Ascendants 492
15.3.14 Collaterals 492
15.3.15 Escheat 492
15.4 Rules regarding the inheritance in islam 492
15.4.1 No birth right 492
15.4.2 No concept of joint family property/coparcenary in islam 492
15.4.3 Heritable property 492
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CONTENTS
15.4.4 Gender equality in succession 493
15.4.5 Vested interest of the legal heirs 493
15.4.6 Doctrine of primogeniture 493
15.4.7 Succession when there is a simultaneous death of two heirs 494
15.4.8 Succession of a missing person in islamic law 494
15.5 Distribution of the property varies in sunni law and shia law 494
15.5.1 Per capita distribution 495
15.5.2 Per stripe distribution 495
15.6 Rights of females 495
15.6.1 Widow’s right to inheritance 495
15.6.2 Consummation of marriage is important 496
15.7 Right of inheritance of child in womb 496
15.8 Marriage under the Special Marriage Act, 1954 496
15.9 Conversion from muslim to another religion 496
15.10 Kinds of share under muslim law 496
15.10.1 Sharer 496
15.10.2 Residuaries 497
15.10.3 Distant kindred 497
15.11 Rule of exclusion 497
15.11.1 Perfect or absolute exclusion 497
15.11.2 Imperfect or partial exclusion 499
15.12 Doctrine of ‘Aul’ or increase or adjustment of shares 499
15.13 Doctrine of Radd or return 500
15.14 Inheritance under sunni law (hana law of inheritance) 501
15.14.1 Class I heirs 501
15.14.2 Class II heirs 502
15.14.3 Class III heirs 502
15.14.4 Rules of sharing 502
15.14.5 Rules of sharing if deceased left behind parents and siblings only 503
15.14.6 R ules of sharing if deceased left behind descendants only 503
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15.14.7 Rules of sharing if deceased left behind (siblings) brothers and sisters only 503
15.14.8 Rules of inheritance 504
15.14.9 Residuaries 506
15.14.10 Distant kindred 506
15.15 Inheritance under shia law 513
15.15.1 Heirs by consanguinity (nasab), that is blood relationship 513
15.15.2 Heirs by special cause 513
15.15.3 Rules of sharing 513
15.15.4 Order of succession 515
15.15.5 Distribution among heirs of the third class 516
15.15.6 Doctrine of Aul (doctrine of increase)-Not Recognised in Shia Law 517
15.15.7 Doctrine of Rudd (doctrine of decrease) 518
15.15.8 Miscellaneous provisions 521
15.15.9 Difference between the sunni and shia law of inheritance 521 SUMMARY 522
CHAPTER 16
PRINCIPLES OF INHERITANCE UNDER PARSIS AND CHRISTIANS
16.1 Succession in parsi
16.1.1 Key features
16.1.2 Succession in case parsi dying intestate under the Indian Succession Act of 1925 530
16.1.3 Division of share of predeceased child of intestate leaving lineal descendants 531
16.1.4 Widower of predeceased daughter shall not be entitled to inherit 532
16.1.5 Division of property where intestate leaves behind spouse only 532
16.1.6 Division of residue property to next-of-kin 533
16.1.7 Division of residue property in absence of nextof-kin 533
16.1.8 Division of property to next-of-kin in absence of spouse and lineal descendant 533
16.1.9 Division of property where there is no relative entitled to succeed 533
16.2 Succession in the case of indian christians 534
16.2.1 Intestate succession for indian christians 534
16.2.2 The rules for distribution of Intestate’s property 535
16.2.3 Distribution where there are no lineal descendants 535
16.3 Succession principles common for christians and parsis 536
16.3.1 Rights of an illegitimate child 536
16.4 Difference between christian and parsi succession laws and succession laws of other religions 536
16.5 Testamentary succession (applicable to both christians and parsis) 536
16.6 Testamentary guardian 537
537
6.11.2 Widowed mother
6.11.3 Grandmother
6.12 Procedure to claim partition or how partition is effected
6.12.1 Severance of status
6.13 Doctrine of relation back
6.14 Revocation of partition
6.15 Mode of partition
6.15.1 Partition by suit
6.15.2 Partition by agreement
6.15.3 Oral partition
6.15.4 Unilateral declaration
6.15.5 Partition through arbitration
6.15.6 Partition by conduct
6.15.7 Partition by will
6.15.8 Partition by father
6.15.9 Partial partition between the members of the family
6.16 Rules regarding the calculation of partition by metes and bounds
6.16.1 Application of rules – illustrations
6.17 Partition under dayabhaga law
6.18 Family arrangement v. partition
6.18.1 Key features of family arrangements in hindu law
6.18.2 Eligibility
6.18.3 Essential conditions for validity of family arrangement
Summary
6.1 MEANING
The term partition means “to divide into parts or shares”1. Under the traditional Hindu law, partition may be defined as dividing the joint family properties among the coparceners as per the rules applicable in Hindu law. The Hindu joint family can come to an end by way of partition. In other words, partition ends the joint family status. After partition, the joint family will be converted to separate nuclear families. For example, there is a joint family consisting
1. Merriam Webster Dictionary
of F, father, and his three sons FS, FS1 and FS2. If there is a partition in this family, it will result into four separate families.
In the Mitakshara coparcenary, partition results in the severance of status of the members of the family. Therefore, for a valid partition to take place there must be atleast two coparceners. In cases, where there is only one coparcener, there is no partition in such family. Rather, such person is called as a sole surviving coparcener. Till the time the coparcener is a sole surviving coparcener, he will be the owner of the entire joint family property. The moment there is birth or adoption of the child, it will become the joint family property. Such single coparcener will be the Karta of the family and will manage the property.
EXAMPLE
There is joint Hindu family consisting of father F, his son, FS and wife of F, W. During the lifetime of F, there was no partition in the joint property. On the death of F, now the joint family consists of FS and W.
After the death of F, FS cannot claim partition as his father F is dead and he has now become the sole surviving coparcener. He will remain the sole surviving coparcener till the time the next coparcener is born or adopted.
Sole surviving coparcener need to fulfil all the responsibilities of the Karta. For example, managing the joint family property and business, the maintenance of the members of the family, marriage expenses of the unmarried females, religious duties, litigation expenses etc. Therefore, there can be no partition here as partition can only take place where there are two coparceners. But in such a case, the family arrangement can be made wherein the FS can maintain his separate status but for being separate, he needs to fulfil his responsibilities as a Karta by making the provision for the same. A family arrangement is recognized under Hindu law and enables the sole surviving coparcener to maintain a status distinct from the joint family members, however, it is different from actual partition.
In the case of Dayabhaga School of law, in case of partition between coparceners, there is a division of property according to the specific shares of the coparceners.
Therefore, under Mitakshara coparcenary, partition means:
1. Severance of status or interest in coparcenary
2. Partition by metes and bounds which means actual division of the property according to the rules regarding partition.
6.2 DE FACTO PARTITION AND DE JURE PARTITION
The coparcenary exists within a joint family. Where there is a joint family property and there a birth taken by a child, by birth such child will be having an inherent right in the coparcenary property. This right is also accorded to the child who has been adopted. The coparcenar, whether born or adopted, have inherent rights in the coparcenary property. Such rights include right to claim partition, unity of possession and community of interest. Every coparcener, minor or major has a right to claim partition in the joint family property. Till the rime, the partition is claimed by a coparcener there is community of interest in the joint family property. Every coparcener has undivided coparcenary interest in the joint family property. In other words, every coparcener has a birth right in the coparcenary property. They are owner of a share in the property but they are unaware about the exact share that they are owner of. No coparcener can say that they own one-third or one-fourth share in the property. Such undivided coparcenary interest keeps on fluctuating. As it remains undivided till partition, such interest fluctuates on the basis of number of births, death and adoption in the family. It will become definite the moment there is a partition in the family. Till that time, there is community of interest, in other words, every coparcener is the joint owner of the property.
EXAMPLE
For example a Hindu joint family consists of F, father, his sons FS1 and FS2. They are the coparceners having birth right in the property. They are the joint owners of the property. Now, F has another son, FS3, the moment he is born, he is having a birth right in the family, he is also a joint owner of the property. This is the community of interest in the joint family property.
Another incident of the coparcenary is the unity of possession. It means that every coparcener has a right of possession of the property and right to use the property alongwith the other members of joint Hindu family. It signifies common possession of the property. There may be a partition in the family, but the coparceners still maintain unity of possession. Till the time, there is partition in the family, they are joint tenants of the family, the moment there is a partition in the family, the coparceners become tenants-in-common. In other words, the coparceners have become entitled to share in the family property but unity of possession can be maintained even after a severance of status.
Partition may be divided into two categories, de facto partition and de jure partition. De-jure partition means where partition is effected by the desire of a coparcener of declaring his intention to severe his status from joint
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Hindu family. Where there is community of interest and unity of possession of the joint family property and a coparcener declares his intention to separate from the joint Hindu family, it results in de jure partition. In other words, in the eyes of law, there has been a partition. On the other hand, de facto partition is where there is actual division of the property between the members of the family who are entitled to get a share in partition. This is also called as partition by metes and bounds. Where there is an actual physical division of the property between the members of the family, it will be called as de facto partition.
A joint Hindu family is said to be separated from the date of de jure partition. De facto partition may or may not follow the same. The de facto partition is where there is actual division of the properties between the family members by metes and bounds.
EXAMPLE
For example, there is a joint Hindu family consisting of F, father and his sons FS1 and FS2. There is a partition between F and his sons on 1.1.2024. There is actual division of the properties on 1.2.2024, that is, what belongs to whom has been decided on 1.2.2024. There is a de-jure partition on 1.1.2024 and de-facto partition on 1.2.2024.
6.3 SUBJECT MATTER OF PARTITION
All the properties are not the subject matter of partition. Only those properties can be partitioned which are joint Hindu family properties. A separate property of the member of the family is not the subject matter of partition as that property belongs to the sole owner of the property. In the partition, it is only the coparceners who participate and the other members are entitled to get a share in partition. The property will be divided between them but the question remains what will happen to the members of the family and disqualified coparceners. The maintenance of these members of the family s the responsibility of the Karta. Moreover, the provision must be made for the joint family debts and the personal debts of the father that is not immoral. The provision should also be made for the funeral expenses of the members of the family as well as the ceremonies required for the widow and the mother of the last male holder alive.
Therefore where the partition takes place between the coparceners, the provision should be made for the maintenance for members of the family, joint family debts, marriage expenses for unmarried daughter, any religious debt, religious expenses, funeral expenses, payment of the father’s debts under pious obligation, thread ceremonies of male child of family etc. The property that is left after deducting these responsibilities, will be property that is for
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PARTITION
partition between the family members. For example, there is joint Hindu family consisting of F, father and his sons FS1 and FS2 and his daughter, FD, W, widow of a pre-deceased son FS3. They have a joint Hindu family property consisting of a house where they are living and an office space, 4 other residential houses. It is decided between the coparceners to divide the properties amongst themselves. Where the property is to be divided between the coparceners, they cannot divide the property as it is. First, the arrangement has to me made to the marriage expenses of the unmarried daughter and maintenance of the unmarried daughter, FD as well as widow of the pre-deceased son, W. They also, need to provide for residence to the members of the family. It is only after that the remaining property can be divided between the coparceners. Therefore, it can be said that before the actual division of the property takes place between the coparceners, the provision of maintenance and residence have to made for the female members of the family as well for the disqualified coparceners.
CASE LAW
In Gurnamma Bhratar Chanbasappa Deshmukh v. Mallapa Chanbasappa2, the Supreme Court was deciding the issue that whether the father is capable to gift a small portion of the joint family properties to his daughter. It was observed in this case that the rule under Hindu law is that the coparceners should give either onefourth share or provide for her maintenance and marriage expenses3
2. AIR 1964 SC 510
3. “There are similar other texts indicate that Hindu law texts not only sanction the giving of property to daughters at the time of partition or at the time of their marriage, as the case may be, but also condemn the dereliction of the said duty in unequivocal terms. It is true that these Hindu law texts have become obsolete. The daughter has lost her right to a share in the family property at the time of its partition. But though the right has been lost, it has been crystallized into a moral obligation on the part of the father to provide for the daughter either by way of marriage provision or subsequently. Courts even recognized making of such a provision not only by the father but also after his death by the accredited representative of the family and even by the widow. The court also referred to the various Hindu texts and observed:
“In Madhaviya, pp. 41 and 42, a text of Katyayana is cited authorizing the gift of immovable property by a father to his daughters beside a gift of movables upto the amount of 2,000 phanams a year. In Vyavahara Mayukha, p. 93, the following text of Brihaspati is also cited by the author of the Madhaviya to the same effect:
“Let him give adequate wealth and a share of land also if he desires.”
Devala says:”To maidens should be given a nuptial portion of the father’s estate”- Colebrooke’s Digest, Vol. 1, p. 185. Manu says:”To the unmarried daughters by the same mother let their brothers give portions out of their allotments respectively, according to the class of their several mothers. Let each give one-fourth part of his own distinct share and those who refuse to give it shall be degraded.”
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CASE LAW
In Kudutamma v. Narasimhacharyalu4 , it was held that a Hindu father was entitled to make gifts by way of marriage portions to his daughters out of the family property to a reasonable extent.
CASE LAW
In Ramchandra v Seeniathal5, the court held that the provision for marriage expenses has to be made only for the daughter of the father and not for the son’s daughter. The marriage expenses of the son’s daughter is the liability of the branch of the son and not of the entire family. Her marriage expenses will be borne by her father. However, the expenses for the thread ceremony of the members of the family should be made at the time for partition. The provision need not be made for the marriage expenses of the unmarried son as the son will get his share in partition.
CASE LAW
The Privy council in the case of Ramalinga Annavi v. Narayana Annavi6, opined that the institution of a suit for partition by a member of a joint Hindu family effects a severance of the joint status of the family, and a member of the family who is then unmarried is not entitled to have a provision made in the partition for his marriage expenses, although he marries before the decree in the suit is made.
6.4 FUNERAL EXPENSES OF THE MOTHER
Under the traditional Hindu Law, it is the duty of the sons to perform the funeral of their mother. Even though the mother has left behind her stridhan property, the expenses are to be borne by the sons. Where there has already been a partition between the sons and they have not kept separate before partition the funeral expenses of their widowed mother, then they will contribute jointly to the expenses.
CASE LAW
In Vrijbhukandas v. Bai Paravati7, it was opined that the duty of performing the funeral ceremonies of a mother, that is, pinda dana or offering the funeral oblations, is laid down as a religious injunction binding on her son in absolute” terms by the Hindu law8 so much so that, even though the son is a minor and as such is not
4. (1907) 17 M.L.J. 528.
5. (1955) Mad 932.
6. AIR 1922 PC 201.
7. (1908) 32 Bom 26.
8. Vijnaneshwara’s Mitakshara, Prayaschittadhyaya, Moghe’s Edition, page 280.
entitled to read the Vedas, he is held competent to recite the Mantras prescribed in the Shastras for the purposes of the shraddha of either of his parents.
6.5 PROPERTIES INCAPABLE OF DIVISION
There may be joint family properties which are indivisible in nature such as car, furniture, animals etc. In such cases, the partition of these properties cannot be done. Therefore, such properties are sold in the market and the amount received is distributed between the coparceners. Another way is that one of the coparceners may take the property and may deposit the money in the accounts of the other coparceners.
CASE LAW
In case of Shantaram v. Waman9, the court said that where a strip of land is reserved as a common passage by a decree in a suit for partition for the use of the coparceners, none of the coparcener is entitled to a partition of that strip.
6.6 ARE THE IDOLS AND PLACES OF WORSHIP DIVISIBLE?
As per Manu, family idols and place of worship are indivisible properties10. The management of the family idols and place of worship, may be given to the senior most member of the family and the liberty may be given to the other members of the family to have access to the place of worship. According to Mulla11, in the absence of any dedication of a building for the worship of the family idol, the building should not be excluded from partition, merely because it is used for the worship of the idol. However, the court may in such a case give an option to the member of the family12.
CASE LAW
In the case of Pramathanath Mullick v. Pradhyumna Kumar Mullick13, the Judicial Committee held that the right of worship of an idol cannot be made the subject of partition and that the joint owners of such a right are entitled to perform their worship by turns.
9. (1922) 47 Bom 389
10. Manu, Chapter IX, Verse 219
11. Mulla, Chapter XVI – Partition and Renion – Mitakshara Law, Pg. 486, Lexis Nesxis Publication, 22nd Edition
12 Schindra v. Hem Chandra AIR 1931 Cal 573.
13. AIR 1925 PC 149 (R)
6.7 CAN THERE BE A PARTITION OF
RIGHT OF WAY?
According to Mulla, the right of way will remain the joint property of the members of the family and cannot be the subject matter of partition. The right of way can be claimed by the coparcener, only when the coparcener is able to prove that it was allotted to him in partition.
6.8 WHETHER A COPARCENER CAN INCLUDE A TERM OR STIPULATION BE PUT UNDER THE DEED FOR THE RIGHT TO EASEMENT?
CASE LAW
In Nallammal v. Sengoda Gounder14, it was held that easement right is statutory right subject to the conditions and pre-requisite conditions and the burden of prove as stated in the Indian Easement Act. Neither it can be created nor be destroyed by reading of recital in document to the convenience of the parties15. If any such recital has been inserted as to the existence of any such right in the nature of easement right, which are liable to be rejected at the threshold since parties cannot conceive easement right upon themselves on somebody land, which is the crux and nucleus of the right of easement.
6.9 SHARE ALLOTTED TO COPARCENER IN PARTITION
According to the rules of partition, the share allotted to each coparcener on partition is his separate share. Once the partition takes place, the coparcener is separated from his father, brothers etc. Therefore, each of them are the owners of their separate share. However, such coparceners remains joint with his male issue. So now, his share will be divided between himself and his male issue and those who have already been separated have no right on this share. In case there is a death of such coparcener, then, his share will devolve according to the rules of succession to his heirs.
Angadi Chandranna v. Shankar 2025 SCC OnLine SC 877
In the present case, following the partition of ancestral property between Defendant No. 1 and his brothers, Defendant No. 1 purchased his brother’s share using his personal income. He later sold the property to the Appellants, asserting that the share acquired from his brother had become his self-acquired property. He further claimed that, in the absence of any existing
14. MANU/TN/2258/2022
15. The court referred to the opinion of Justice Dr. G. JAYACHANDRAN reported in MANU/ TN/0413/2019:2019 (5) CTC 80 [K. Kalianna Gounder v. Sundararaj] wherein it was held that easement right cannot be created by reading a recitals any document by the parties themselves it has to be proved in the manner known to law as prescribed under the Indian Easement Act.
coparceners, he held absolute authority to alienate the property. However, the Respondent/Plaintiff contested the transaction, contending that Defendant No. 1 had acquired the property using funds from the joint family nucleus. As such, the property could not be classified as self-acquired but retained the character of ancestral property.
While the Trial Court ruled in favour of the Respondent, the First Appellate Court reversed that decision and declared the Appellants to be the rightful owners of the property. After the High Court set aside the judgment of the First Appellate Court, the Appellants filed an appeal before the Supreme Court.
The primary question for consideration before the Supreme Court was whether the suit property was ancestral, forming part of the joint family estate, or self-acquired by Defendant No. 1.
The Court reaffirmed it is a well-established legal principle that the mere existence of a joint Hindu family does not create a presumption that a property is joint family property. The burden of proof lies on the person claiming the property to be joint. However, if that person can demonstrate that there existed a joint family nucleus from which the property could have been acquired, a presumption arises in favour of the property being joint. The burden then shifts to the person asserting that the property is self-acquired to prove that it was purchased with personal funds, independent of the joint family nucleus.
The court also said that when the income derived from the joint family property or when a joint family property is sold and the sale consideration is utilised for maintenance and education within the joint family, the same are to be treated as out of necessity as it is the duty of every Kartha to do so. Hence, it is sufficient to satisfy the legal necessity if the Kartha had sold the property and used the funds for upbringing the children. That apart, under the customary practices and tradition in this country, it is the father who performs the marriage of his children and therefore, the expenses incurred for that purposes are also to be treated as expenses out of necessity.
The court reiterated that once the joint family property has been lawfully partitioned, it ceases to retain its character as joint family property, and the respective shares allotted to each member become their self-acquired properties.
Therefore, the Court allowed the appeal, holding that Defendant No. 1 had lawfully acquired the suit property and had validly transferred it to the Appellants.
6.10 WHO CAN CLAIM
PARTITION?
In a Mitakshara Hindu Joint family, the coparceners are having a right to demand partition. This is one of the legal incidents of the coparcenary. It is only the coparceners and no other members of joint Hindu family who can demand partition. Following are the persons who can demand partition:
6.10.1 Coparceners
The coparceners have a right to demand partition as well as entitled to get a share at the time partition. All the coparceners whether, minor or major are having this right in coparcenary.
Father, Son, Daughter, grandson, grand daughter, great grandson and great grand daughter whether born or adopted can demand partition. Herein the issue also arises as to who can claim partition from whom. Whether a son can demand partition from the father or even a grandson can demand partition from the grandfather.
CASE LAW
In the view of Bombay High court in the case of Apaji v. Ramchandra, 16 “without the assent of the father, a son is not entitled to demand partition if the father is joint with with his own father, brother or other coparceners. But according to the opinion of the other High courts, such as Patna high court and Allahabad High court, no such exception is recognized and therefore, a grandson can also demand partition from his grandfather as a coparcener is having a right to demand partition as he is the member of coparcenary. It is his inherent right to demand partition.
Illustration
There is a joint Hindu Family consisting of F, father, FS, his son and FS, his grandson. FSS instituted a suit for partition against F. As per Bombay High Court’s decision, he needs father’s assent and as per other High Court, it is his inherent right as he is coparcerner, therefore, he does not need the assent of the father.
6.10.1.1 If the coparcener is minor
In case of a minor copacerner, it’s the guardian of such minor who can claim partition on behalf of minor. S/He can also institute a suit claiming his share in partition. However the court has to be very cautious in passing the decree of partition as the partition should be for the benefit of the minor coparcener. 16. (1892) ILR 16 BOM 29.
CASE LAW
In Kakumanu Peda Subbayya v. Kakumanu Akkamma17, the court observed that where the suit is brought on behalf of the minor coparcener for the partition, the court should not pass the decree of partition unless the partition is likely to benefit the minor for advancing his interest or protecting him form danger. The court said “On the conclusion reached above that it is the action of the person acting on behalf of a minor that brings about a division in status, it is necessary to examine what the nature of the jurisdiction is which the courts exercise when they decide whether a suit is for the benefit of a minor or not. Now, the theory is that the Sovereign as parens patriae has the power, and is indeed under a duty to protect the interests of minors, and that function has devolved on the courts. In the discharge of that function, therefore, they have the power to control all proceedings before them wherein minors are concerned. They can appoint their own officers to protect their interests, and stay proceedings if they consider that they are vexatious.”
6.10.2 Son/Adopted Son
The adopted son has same rights in the coparcerary as a coparcener by birth. Such adopted son has right to claim partition only from the date of his adoption and not from his date of birth. As per section 12, Hindu Adoption and Maintenance Act, 1956, adopted child becomes the child of the adoptive parents from the date of adoption and from that date the child’s ties are severed with the family of his birth.
6.10.2.1 Child born conceived at the time of partition but born after partition
Where the child is in the mother’s womb at the time of partition. Such child is considered as the living child for the purpose of partition. The right in the coparcenary vests in the child the day the child is conceived or begotten. Therefore, at the time of partition, the share of such child should be kept aside even if such child is not born at that time. If such share is not kept aside, then such coparcener can reopen the partition.
EXAMPLE
For example, F, father has two sons, S1 and S2. There is a partition between father and his sons. S3 at that time of partition is in the mother’s womb. When the partition takes place, his share has to be kept separately. He would be entitled to that share the moment he is born. Therefore, the property will be divided between F, S1, S2, S3 equally that is one fourth each. If the share of S3 is not kept separately, then he may reopen the partition.
17. AIR 1958 SC 1042
