Partition & Reunion in Hindu Law

1. Partition

• Partition in Hindu law is called Vibhag
• It is an easy term for separation of property.
• Partition includes separation of kitchen residence and property.
• Only ancestral property is subject to partition. Self-acquired property, not liable to partition.
• Physical division of property in accordance with share of each coparcenary.
• Partition two types of: - A) Absolute partition A) Partial partition.
• Absolute partition is separation of at all three level residents, kitchen and property
• Partial partition is separation of residents and kitchen, but property is still held jointly.
• Business is held jointly but for convenience Work and authority are divided and they work independently, not separation, but family arrangement.
• Family arrangement between members of joint family to settle dispute regarding division or management of joint family property.
• Partition is a formal legal process that result of permanent division of joint family property among its number.

Difference between family arrangement and partition

• Two stages in Mitakshara of partition. First stage is intention to become separate - Division of right Second stage actual making of an assigning of partition - Division of property.
• Property in capable of division Such as idols, temples, Cattel’s. In such case property agreement has to be reached so that remains in common use of all coparcenary

Modes of partition

• A) By mere Declaration
  · Partition by mere declaration refers to process where coparcenary can express their intention to separate from joint family and enjoy their share independently. Separation of joint status is achieved solely through clear declaration of intent.
• B) By will
  · The will must clearly express the testator intention to separate the joint family. Mere intent will not automatically create partition, consent of adults of family required. Father cannot impose a family settlement under Disguise of partition through will.
• C) By Conversion
  · Conversion of coparcener into another religion operate as partition. Such conversion takes his share Family property as it stood in date of conversion. Reconversion to Hinduism does not bring his coparcenary relationship.
• D) By marriage under special Marriage Act. 1954
  · Marriage of Hindu Special Marriage Act cause severance between him and other member of his family.
• E) Partition by father.
  · Father may cause severance of son without their consent.
  · Comes from doctrine Partia protesta (Paternal power)
  · Father can demand for partition along with his son, even in presence of Karta and can bind son by partition.
  · Can get share of son fixed and also get them separate.
• F) Buy suit.
  · Partition by suit is process of dividing joint family property through legal suit filed by Coparcenary. Mere filing of partition suit serves the joint family status of coparcenary instituting suit.
  · Decree might be necessary to decide exact share of each coparcenary, Whereas severance of joint status occur just by filing suit. Fathers consent not necessary to file suit for partition.

Effects of partition.

1. Severance of joint status - partition terminate joint family status. Coparcenary loses their joint status and becomes individual owner of their respective share.
2. Division of property - Joint family is divided among coparcenary based on their share.
3. Alteration of property - Property Changes from joint family property to individual ownership.
4. Partition general - Undivided family as a unit comes to end. Member of family who separated themselves from joint unit Lose joint status.

Hindu family property Partition may take place at instance of.

• 1) Sons and grandson
  Right of son grandson and great grandson, as well as adult male of family to demand partition against consent of other member, after 2005 daughters can also claim partition.
• 2) After born sons.
  Afterborn sons are into two sets
      i)Born or begotten after partition – Such son is entitled to father share and not entitled to reopen partition.
      ii) Born after partition but begotten before it – Son in mother’s womb at time of partition, considered to receive share equal to his brother
• 3) Widows
  Under Mitakshara are entitled to obtain share, but cannot demand partition. After 2005, They can also demand partition
• 4) Adopted children
  Adopted children is treated equal to natural born entitled to demand partition any time after adoption entitled to equal share as natural born. If partition was done before adoption, cannot demand share.

Reopening of partition

Hindu law after the partition has made it possible to reopen the partition or revoke the partition on the Following grounds:-

1. Mistake
   If all members of joint family accidentally leave their property behind and not include in partition and allotment of share Then realised One person sons share has got Some liability with it to address such mistake reopening of partition.
2. Minor coparcener
   Due to minority unequal share was allotted to minor or even no share was given to minor at time of partition. In such case partition can be reopened
3. Absent coparcener
   A coparcener was absent at time of partition, due to which unequal Share or no share was allotted to him. Such situation can lead to reopening of partition.
4. Afterborn Son
   The son in womb at time of partition is not given equal share as his brother can reopen partition.
5. Adopted son
   Partition done after adoption, but no share allotted to adopted Under section 12 of Hindu adoption and minorities act. Adopted son is equal to natural bond son. So entitled to reopen the partition.
6. Fraud.
   Any partition can be revoked, which is done by fraudulent or unfair advantage over another Partition can reopen by person who was aware of fraud.

2. Reunion

• Reunion is exception to general rule,
• According to Bhrispati - he who once separated dwells again through affection with his father, brother or paternal uncle is termed as reunited.
• Mitakshara Daya Baga Madras School says a member of joint family, one separate, can reunite. Only with father, brother and paternal uncle, not other relations.

Reunion can take place between

• Order to constitute reunion there must be evidence on part of parties to reunite in state and interest.
• Mere fact of living together at same place can’t constitute reunion unless there is an agreement between parties to reunite in state with intention to preserve status as member of joint family