Chapter 5

Partition of property

Introduction

Under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint family of his son and grandson and other members who form joint Hindu family with him.363

Under the Hindu Law there can be a partition even when there is no joint family property to divide. Even when there is total failure of common property a partition may also then be made, by the mere declaration "I am separate from thee"; for a partition merely indicates a state of the mind. Transactions relating to partition are only declaratory of this mental state.364

The partition consists in defining the shares of the coparceners in the joint property, actual division of the property by metes and bounds or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the property.365

Partitioning is the ascertainment of individual shares and it can be brought abut by an unambiguous declaration of their intention to divide, that is, by a conscious alteration of their status. Such a declaration brings about a division in status. At that stage the members of any erstwhile joint family become tenants in common. The next step is the division by metes and bounds where under separate properties are allotted towards the said definite shares of the individuals. Whether the said process involves transfer or not within the meaning of the Transfer of Property Act, it certainly confers on a divided member an absolute title to a specified property whereas before the partition he had only some interest in the entire joint family property. Though on one sense his interest in the property of the larger joint family has become crystallised into a specific property in substance he acquires a title to a specific property.366

Presumption of jointness

In a Hindu Undivided Family, governed by the Mitakshara law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of family. The rights of the coparceners are defined where there is partition.367

The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.368

No coparcener can dispose of his undivided interest in coparcenary property by gift and that such transaction is void. Although jointness is presumed, that does not deny a coparcener the right to separate from the joint family and cause disruption of the joint family. Shastric Law is clear that "wealth of the father and paternal grandfather becomes the property of his sons and of his grandsons, in the right of their being sons and grandsons respectively and that is an inheritance not liable to obstruction.369

Mere cessation of commonality and joint worship the existence of separate transactions and division of income or the holding of land in separate portions, or a mere definition of shares in revenue and village papers do not establish partition, unless such steps were taken with a view to carry out a partition. The question however is one of fact to be decided with due regard to the cumulative effect of all the circumstances. The burden of proving that there has been a partition is of course on the person setting it up.370

The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but when one of the coparceners, did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparcerners continued to be joint.371

A presumption of jointness is the greatest in the case of father and sons and the strength of the presumption necessarily varies in every case. The presumption is stronger in the case of brothers than in the case of cousins and the further one goes from the founder of the family, the presumption becomes weaker and weaker. The person who sets up the plea of partition must prove the same.372

Living together and messing together of three persons by itself is not sufficient to raise the presumption of jointness of property acquired by them as one of them may acquire separate property for himself while being part of the joint family.373

A female may continue to be a member of the joint family, but if any property purchased in her name even though there may be sufficient nucleus, there can be no presumption that the property is joint family property.374

Severance of joint family

The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By an unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.375

Burden of proof

The burden of proving the partition is on the person claiming the same.376 Separate living by itself is not sufficient to infer partition even if undivided members are carrying on separate business, that does not amount to partition.377 Onus of proving that certain items were separate property of individual is upon the person claiming it to be separate property.378

Mere ascertainment of shares of the members of a joint family is not conclusive evidence of separation, but there is a presumption that there was separation and the burden of proving that notwithstanding the ascertainment of shares of the various members of the family, the family continued to be joint family lies on the person making the assertion.379

The moment the liability is incurred by the father the creditor has a right to proceed against the entirety of the joint family estate including the share of the son since, the debt not being avyavaharika, the son was under a pious obligation to discharge it out of family property. Subsequent thereto a partition takes place by which the share of the son in the property is separated and vested in him, free from the rights and powers of the father. It was the plea of the son that by reason of an arrangements which he has entered into or which has been entered into on his behalf, he has discharged himself from liability to the creditor— an arrangement to which the creditor is not a party but which under the law is binding on the creditor provided the arrangement fulfils certain conditions. From this it would seem to follow logically that the onus would be upon the son to establish that the nature of the arrangement under the partition was such as made proper and adequate provision for the discharge of the debt, for that is the basis upon which his own discharge from liability depends.380

After admission of partition or its proof by evidence a presumption is raised that all properties stood divided. Thereafter the burden of proving that any part of property was still joint, though in exclusive possession of one of the coparceners, is on the person alleging such jointness in status.381

Once a partition is proved to have been effected between the members of a joint and undivided Hindu family, it would be severance of the joint status between the members of a family, and in the absence of any proof to the contrary it would be a partition which would be complete both as regards the persons as well as the properties. That is the presumption in Hindu Law which may be rebutted no doubt, but the burden of rebutting it is on the party negativing the contention.382

Discharge of burden

In order to show separation, it may not be necessary to prove a formal partition for it may be, a formal, partition was never effected and if effected, it cannot be proved. In such a case the only means of proving partition is by proof of separate enjoyment for a sufficiently long time so as to overcome the presumption of jointness.383

In a case relating to only oral evidence, while rejecting the prayer for partition it was observed384 as under:

'There is no material to show that the property was joint or the family possessed joint funds. There was no nucleus to augment or add by way of accretion to the same. There is no material to show that the appellant had contributed any sums of money in the purchase of the house or any contribution thereof. Evidence on record outweighs the proof sought to be placed by the appellant in this regard. Firstly, the title deed stood in the name of the respondent alone. The respondent placed material before the Court that he had purchased the building material at different stages to raise the construction. He was in possession of the house exclusively right from the date of the construction. The appellant, if he had given any money to the respondent, could have placed some evidence on record in support of the same. There is nothing except his own self-serving statements which are self-contradictory. Assertions and acclamations will not produce a strong case. The tearful arguments of the appellant had not appealed to us in the absence of even title of evidence.'385

When there was severance of joint family status by an agreement among the coparceners under which an arbitrator was also appointed to decide the shares of individual coparceners and to divide the joint family property, it was held that the remaining coparceners cannot claim to be united as joint family. It was further held that their agreement to remain united or to reunite must be proved as a fact by evidence to this effect.386

Although separate mess, separate residence, separate cultivation and separate transactions of the properties by themselves may not be conclusive proof of partition but taking into consideration the commutative effect thereof, the same may lead to an inference of partition.387 With this consideration where coparceners were living and messing separately it was held that this by itself does not establish separate status of coparceners. The separation in status can only be proved by their separate enjoyment of income from the erstwhile joint property.388

Disruption of joint family

If several owners are in possession of an undivided property, none of them has a right to appropriate to his exclusive use any portion of this property as this will affect a compulsory partition in his own favour according to his choice.389

In one case when a deed was executed, one or more members of a joint family governed by the Aliyasanthana law of inheritance had no right to claim a partition of the joint family properties, but by a family arrangement entered into with the consent of all its members, the properties could be divided and separately enjoyed. It was held that in such families an arrangement for separate possession and enjoyment without actual disruption of the family was common. An arrangement for separate enjoyment did not effect a disruption of the family, unless it completely extinguished the community of interest in the family properties.390

However in this case the properties were divided into two shares. Each branch was to enjoy its share in perpetuity from generation to generation without any interference from the other branch. There would be separate mutations and separate pattas in respect of the properties allotted to each branch. The assessments were to be paid separately. Each branch would have a separate manager. The share of the common debt allotted to each branch and the interest thereon would be paid separately. All these features coupled with other circumstances may indicate a complete disruption of the family. But there are other features of the deed which indicate that it did not effect an out-right partition. The object of the deed was to prevent disputes and waste of properties and to preserve the dignity of the family. Therefore it was held that in terms, the deed did not declare that there was a complete disruption of the family.391

Intention to separate

A member of a joint Hindu family can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severally. It is not necessary that there should be an agreement between all the coparceners for the disruption of the joint status. It is immaterial in such a case whether the other coparceners give their assent to the separation or not. It is, however, necessary that the member of the joint Hindu family seeking to separate himself must make known his intention to other members of the family from whom he seeks to separate. The process if communication may, however, vary in the circumstances of each particular case. It is not necessary that there should be a formal dispatch to or receipt by other members of the family of the communication announcing the intention to divide on the part of one member of the joint family. The proof of such a despatch or receipt of the communication is not essential, nor its absence fatal to the severance of the status. It is, of course, necessary that the declaration to be effective should reach the person or persons affected by some process appropriate to the given situation and circumstances of the particular case.392

Partition in one sense is a severance of joint status and coparcener of a coparcenery is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenery with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common.393

The evidence of partition must indicate the "mental state" i.e., the definite and unambiguous intention of member of a joint family to separate himself from the family. This can not be proved by the evidence of division of property when there was no joint family property.394

An agreement between all the coparceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severally will amount in law to a division of status. it is immaterial in such a case whether the other members assent or not. Once the decision is unequivocally expressed, and clearly intimated to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. But in order to operate as a severance of joint status, it is necessary that the expression of intention by the member separating himself from the joint family must be definite and unequivocal. If however the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint family status.395

Partition is a severance of joint status and all that is necessary to constitute partition is a definite and unequivocal indication of the intention of a joint family to separate himself from the family and enjoy his share in severally. But this intention has to be communicated to the other members of the family. There should be an intention, indication or representation of such intention and that what form that manifestation should take would depend upon the circumstances of each case.396 If a coparcener desires to sever his joint family status, it is not necessary for him to give a notice to the other coparceners of his severance or indicate his desire to them. A declaration made by him in a document or any other proceeding showing his unequivocal intention to become separated from the family or treat himself as a separated member from a particular date is enough to create a division in status. A review of the decision referred to supra clearly shows there is a conflict of opinion on the question whether any communication at all is necessary to the other members of the unilateral declaration of intention to become divided.397

Having made demand for partition and laid the suit in that behalf claiming a specific share in the Mitakshara Coparcenary, a coparcener stood divided in status from other members of the coparcenary, through partition by metes and bounds had not been taken place and on his death thereafter he was a divided member of the joint family. By operation of section 30 he was entitled to dispose of his undivided share and the interest in the coparcenary by testamentary disposition.398

Institution of a suit for partition by a member of a joint family is an unequivocal intimation of his intentions to separate and there consequently is a severance of his joint status from the date when the suit is instituted.399 But in case of a suit on behalf of minor it has been observed that by opting not to pursue the suit for partition and separate possession after becoming major, the claim of the plaintiff that he is divided in status has to be negatived. When this claim is negatived, the plaintiff continues as a joint family member. It is not necessary that there must be any expression for re-union. The plaintiff having abandoned his claim for partition, he is to be held as a member of his joint family.400

The law presumes that the members of a Hindu family are joint. That presumption will be stronger in the case of a father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily. The fact that the plaintiff was now and then expressing that he was not interested in his father's estate do not amount to a declaration of his intention to separate from the family.401

In a suit for partition where the preliminary decree itself has not been passed, the position is that though the next friend, in filing the suit for partition, has made an unequivocal declaration on behalf of the minor to separate, that declaration would not become an effective declaration because the law says that such a declaration is subject to approval by the Court. Till a preliminary decree is passed, the stage of the Court approving or disapproving the declaration made by the next friend of the minor would not arise. In such a case, when the minor on attaining majority, abandons the suit, the position would be similar to a case where the Court holds that it is not in the interests of the minor to separate and refuse to grant a preliminary decree.402

Locus standi

The rights of an adopted son cannot be more than that of his adoptive father. Therefore it was held that if the plaintiff's adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties. Therefore it is beyond comprehension as to how the plaintiff could acquire a greater right than his adoptive father could have had if he had been alive on the date of partition and that he could have got if he had been adopted prior to that date. Thus the plaintiff's claim for a half share in the family properties was held unsustainable.403

An illattom adoptee may seek partition but there are two conditions for a valid illattom adoption. One is the adoptee must marry the daughter of the adoptor. So far as this condition is concerned, this did happen, need not be a matter of disputation. The secend condition is that there should be an agreement to give the son-in-law taken in illattom adoption a share. Mere marrying the daughter of the family and mere living in the house of the father-in-law and helping him in the administration and management of the properties, would not lead to the result of affiliation. The second condition is the significant and important one and there should be requisite specific agreement which alone could form the basis for this affiliation.404

An insane person may not have a right to a share or to claim a partition but when another coparcener disrupts the joint family status, the insane coparcener gets the right to seek severance subject to postponement of the right till he is cured405

The illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property. This statement of the law, may be supplemented by three other well-settled principles, these being firstly, that the illegitimate son does not acquire by birth any interest in his father's estate and he cannot therefore demand partition against his father during the latter's lifetime, secondly that on his father's death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s) and thirdly that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son.406

But in a later case it has been held with reference to the provision of Hindu Marriage Act, 1955 and Madras Hindu (Bigamy Prevention and Divorce) Act, 1949, that an illegitimate son can not be treated as a coparcener.407

Once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative father's entire self-acquired property in the absence of a son, widow, daughter or daughter's son and to a share along with them, and there is no escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widow's death. The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock of descent.408

Suit for partition

In a suit for partition by Hindu coparcener it is not necessary for him to seek the setting aside of the sale. It is sufficient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not bound by any alienations or interest of other created in such properties which fall to his share.409

Merely because one of the members of the joint family is a minor, does not operate as a bar to partition.410

Necessary parties

All persons who claimed an interest in the joint family property are necessary parties to the suit entitled to be impleaded in the proceedings.411 In one case a deed of partition was executed without including the widow of deceased coparcener. It was found that after the enforcement of Hindu Women's Right to Property Act, 1937, upon partition a widow has same right that of her husband. Therefore non inclusion of widow in the deed of partition and non allotment of a share in her favour vitiates the entire partition.412

Once a coparcener separates from the joint family that he ceases to be part of the H.U.F. particularly in a case where the partition has been given effect to such as the present one where it is demonstrated that a physical division of the property has taken place and more importantly, that the concerned member has gone to reside separately. It is virtually the end of the matter in so far as the joint family may continue vis-à-vis the rest of the members who are separated cease to be part of the H.U.F. and consequently, cease to have any right to demand any partition in respect of the remaining property. This being the position in law, if the remaining members were to approach a Court for partition of the residuary corpus, the alienated member has no right to insist on being made a party to that proceeding.413

The real difficulty arises in such a situation where the alienated member anticipates the legal bar in his way and seeks to overcome it by taking up the contention that the registered partition deed is non est in law because it is vitiated through some legal infirmities such as fraud, which has been pleaded in this instance. Such petitioner was claiming to be impleaded as of right. Before that right can be exercised, it is for him to demonstrate his status namely that of a coparcener. The registered partition deed unequivocally destroys that status and it is therefore condition precedent for the petitioner if according to him, that document is vitiated, to overcome that bar and to only then contend that he must be made a party to the partition proceedings. The Court needs to take cognisance of the legal effect of a registered partition deed which as of now is in existence and binds the petitioner as much as it binds the remaining members of the H.U.F.414

Oral partition

Partition in the Mitakshara sense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary. For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy has been converted into a tenancy in common. For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of Section 17(1)(b). But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property. Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary. The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document. If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of Section 17(1)(b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before.415

Physical partition

The clearest case to prove partition is whether the members of a joint family divide their property by metes and bounds and each member is in separate possession and enjoyment of the share allotted to him on partition and out right partition can be proved or may be inferred inter alia on the basis of arrangements made by the parties which are of a permanent nature.416 But mere ascertainment of shares of the members of a joint family is not conclusive evidence of separation, but there is a presumption that there was separation and the burden of proving that notwithstanding the ascertainment of shares of the various members of the family, the family continued to be joint family lies on the person making the assertion.417

A suit cannot be deemed to have been finally disposed of on passing of such a decree except in cases where the prayer in the suit was merely for a declaration of the extent of the share to which the plaintiff is entitled to in the suit properties. Where the suit is for recovery of the specific portion of the properties falling to the share of the plaintiff, the suit can be deemed to the have been finally disposed of only on such a specific plot being allotted to the plaintiff after a division of the properties by metes and bounds. All the proceedings leading to the allotment of specific plots towards the shares of the respective parties are only proceedings in the suit. Partition of the properties by metes and bounds for the purpose of making final allotments towards the shares of the respective parties may be got done through the revenue authorities or through Commissioners authorised by the Court in that behalf. But the proposals made by them are only tentative and are subject to scrutiny and final approval by the Court.418

When brothers separated from the family but division of property by metes and bound not made, a decree granted for division and separate possession in specified shares to all members of the erstwhile family entitled to the same.419

The only method by which a business can be divided as a going concern is by dividing the book balances in the name of persons to whom the shares of business have been allotted. A partition may be brought about by mere specification of the shares in the accounts and making entries therein to show that business is held in severalty or in specified shares, it is not necessary that there should be physical division of the business.420

Partial partition

Partition does not mean simply division of property into specific shares; it covers421 both division of title and division of property. But a partition does not include partial partition.422 The Supreme Court however observed that 'Partial partition of properties brought about by the father between himself and his minor sons cannot be said to be invalid under Hindu Law and must be held to be valid and binding. It is not open to the Income-tax authorities to consider a partial partition to be invalid on the ground that shares have not been equally divided and to refuse to recognise the same.423 The Privy Council has also approved a partial partition and observed that 'the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated nor was the mere filing of a suit for partition was an evidence of separation although it would afford evidence that an intention to separate has been entertained. A member of a joint family could separate himself from the other members of the joint family and was on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him. The remaining coparceners without any special agreement amongst themselves might continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property.'424

Under the Hindu law physical division of property is not necessary. Once the shares are defined, there is a severance of joint status. The parties may thereafter make a physical division of the property or they may decide to live together and enjoy the property in common. But the property ceases to be joint immediately the shares are defined and thenceforward the parties hold as tenants in common.425

In a Hindu undivided family governed by the Mitakshara law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of the family. The rights of the coparceners are defined when there is partition. Partition consists in defining the shares of the coparceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property.426

In one case by the reference to the Panchas, the parties ceased to be members of the joint Hindu family. If thereafter the assets of the family were divided and that division was accepted by the parties, the properties reduced by the parties to their possession must be deemed to be of the individual ownership of the parties to whom they were allotted, and the remaining properties as of their tenancy-in-common.427

Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators, by a demand for a share in the properties, or by conduct which evinces an intention to server the joint family; it may also be effected by agreement to divide the property. But in each case the conduct must evidence unequivocally intention to sever the joint family status. Merely because one member of a family severs his relation, there is no presumption that there is severance between the other members: the question whether there is severance between the other members is one of fact to be determined on a review of all the attendant circumstances. Severance between the members of the branches inter se may not in the absence of expression of unequivocal intention be inferred.428

It was however, also observed by Supreme Court that the father, undoubtedly, enjoys the right to bring about a complete disruption of the joint family consisting of himself and his minor sons and to affect a complete partition of the joint family properties even against the Will of the minor sons. It is also now recognised that partial partition of joint family properties is permissible. When father can bring about a complete partition of joint family properties between himself and his minor sons even against the Will of the minor sons and when partial partition under the Hindu Law is not accepted and recognised as valid by judicial decision, we fail to appreciate on what logical grounds it can be said that the father who can bring about a complete partition of the join family properties between himself and his minor sons will not be entitled to effect a partial partition of joint family properties between himself and his minor sons, if the father in the interest of the joint family and its members feels that partial partition of the properties will be in the best interest of the joint family and its members including the minor sons.429

The provisions of Income Tax Act, 1961 were however amended later and it was provided in section 171 as under:

171. Assessment after partition of a Hindu undivided family— (1) A Hindu family hitherto assessed as undivided shall be deemed for the purposes of this Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under this section in respect of the Hindu undivided family.

(2) Where, at the time of making an assessment under section 143 or section 144, it is claimed by or on behalf of any member of a Hindu family assessed as undivided that a partition, whether total or partial, has taken place among the members of such family, the Assessing Officer shall make an inquiry thereinto after giving notice of the inquiry to all the members of the family.

(3) On the completion of the inquiry, the Assessing Officer shall record a finding as to whether there has been a total or partial partition of the joint family property, and, if there has been such a partition, the date on which it has taken place.

(4) Where a finding of total or partial partition has been recorded by the Assessing Officer under this section, and the partition took place during the previous year,—

(a) the total income of the joint family in respect of the period up to the date of partition shall be assessed as if no partition had taken place; and

(b) each member or group of members shall, in addition to any tax for which he or it may be separately liable and notwithstanding anything contained in clause (2) of section 10, be jointly and severally liable for the tax on the income so assessed.

(5) Where the finding of total or partial partition has been recorded by the 80[Assessing] Officer under the section, and the partition took place after the expiry of the previous year, the total income of the previous year of the joint family shall be assessed as if no partition had taken place; and the provisions of clause (b) of sub-section (4) shall, so far as may be, apply to the case.

(6) Notwithstanding anything contained in this section, if the Assessing Officer finds after completion of the assessment of a Hindu undivided family, that the family has already effected a partition, whether total or partial, the Assessing Officer shall proceed to recover the tax from every person who was a member of the family before the partition, and every such person shall be jointly and severally liable for the tax on the income so assessed.

(7) For the purposes of this section, the several liability of any member or group of members thereunder shall be computed according to the portion of the joint family property allotted to him or it at the partition, whether total or partial.

(8) The provisions of this section shall, so far as may be, apply in relation to the levy and collection of any penalty, interest, fine or other sum in respect of any period up to the date of the partition, whether total or partial, of a Hindu undivided family as they apply in relation to the levy and collection of tax in respect of any such period.

(9) Notwithstanding anything contained in the foregoing provisions of this section, where a partial partition has taken place after the 31st day of December, 1978, among the members of a Hindu undivided family hitherto assessed as undivided,—

(a) no claim that such partial partition has taken place shall be inquired into under sub-section (2) and no finding shall be recorded under sub-section (3) that such partial partition had taken place and any finding recorded under sub-section (3) to that effect whether before or after the 18th day of June, 1980, being the date of introduction of the Finance (No. 2) Bill, 1980, shall be null and void;

(b) such family shall continue to be liable to be assessed under this Act as if no such partial partition had taken place;

(c) each member or group of members of such family immediately before such partial partition and the family shall be jointly and severally liable for any tax, penalty, interest, fine or other sum payable under this Act by the family in respect of any period, whether before or after such partial partition;

(d) the several liability of any member or group of members aforesaid shall be computed according to the portion of the joint family property allotted to him or it at such partial partition, and the provisions of this Act shall apply accordingly.]

Explanation—In this section,—

(a) "partition" means—

(i) where the property admits of a physical division, a physical division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to be a partition; or

(ii) where the property does not admit of a physical division, then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition;

(b) "partial partition" means a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both.

The question of constitutionality referred to constitution bench for consideration.430 Upholding the constitutional validity of this provision it has been held by Supreme Court that it is for the legislature to recognize or not to recognize partial partition of HUF property for the purpose of levy and collection of tax; it is also for the legislature to decide whether only non-bona fide partial partition undertaken for reducing the tax liability should not be recognized or not to recognize all partial partitions of HUF properties. Further, the consideration of hardship is totally irrelevant for deciding the question of legislative competence. In the case of taxation, it is settled law that hardship or equity has no role to play in determining eligibility to ax and it is for the legislature to determine the same. Lastly, once the partial partition is not recognized, tax is to be calculated as if the assets are held by HUF. Hence, the question whether HUF is required to recover tax from the person to whom the properties are allotted is not required to be considered by the taxing authority as for the purpose of income tax the properties belong to the HUF. If HUF finds any hardship, it is for the members of HUF to have the partition of the entire estate and not to have partial partition.431

Any claim of division without a physical division of such property will not be deemed to be a partition. Where, however, the property does not admit of a physical division, then such division as the property admits of amounts to a partition, but a mere severance of status or a mere declaration shall not be deemed to be a partition. A partial partition may be/with respect to some of the persons constituting a HUF or some of the properties owned by a HUF or both.432 Referring to the explanation to above section it has been held by Supreme Court also that mere severance of status was not sufficient for the purpose of Income Tax even though it may be permissible to do so under Hindu Law. Under the Income tax law a joint family can not contend that it stands divided while it enjoys the property jointly.433 Similar view has been taken in other cases as well.434

Adjustment of equity

While effecting a partition it would not be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal values amongst the members of the joint family. Properties of a larger value might go to one member and properties of a smaller value to another and therefore there would have to be an adjustment of the values by providing for the payment by the former to the latter by way of equalisation of their shares. This position has been recognized in law and a provision for such payment is termed "a provision for owelty or equality of partition." It therefore follows that when an owelty is awarded to a member on partition for equalization of the shares on an excessive allotment of immovable properties to another member of the joint family, such a provision of owelty ordinarily creates a lien or a charge on the land taken under the partition. A lien or a charge may be created in express terms by the provisions of the partition decree itself. There would thus be the creation of a legal charge in favour of the member to whom such owelty is awarded. If, however, no such charge is created in express terms, even so the lien may exist because it is implied by the very terms of the partition in the absence of an express provision in that behalf. The member to whom excessive allotment of property has been made on such partition cannot claim to acquire properties falling to his share irrespective of or discharged from the obligation to pay owelty to the other members. What he gets for his share is therefore the properties allotted to him subject to the obligation to pay such owelty and there is imported by necessary implication an obligation on his part to pay owelty out of the properties allotted to his share and a corresponding lien in favour of the members to whom such owelty is awarded on the properties which have fallen to his share. Not only is this the normal position on a partition decree where there is an unequal distribution of properties among the members of the joint family but even where an encumbrance has been created on a member's share before the partition is effected, the encumbrancer is postponed to the member to whom such owelty is awarded under the partition decree. A lien or a charge created in favour of a member in regard to such owelty obtains precedent over an encumbrance and there are authorities to show that such lien or charge has priority over an earlier mortgage. The moment there is a provision for such owelty made in a partition decree, the member in whose favour that provision has been made is entitled to a lien or a charge over the property which has fallen to the share of the member to whom property of a higher value has been allotted. If such a lien or a charge is expressly declared, so far as good but even if it is not so expressly declared, there is by necessary implication the creation of a lien or a charge in his favour for the amount of such owelty.435

Though a partition once made cannot be reopened except on the ground of fraud, if a property is wrongly included and subsequently passes out of the possession of a sharer, he is entitled to compensation out of the shares of the other parties and the partition may, if necessary, be reopened for readjustment of sharers, and the parties having divided the property under a mistake of their rights to it are bound to bear the loss proportionately and such a claim is based on equitable principles.436 The parties having divided the property under a mistake of their rights to it were bound to bear the loss proportionately. There can be no doubt that such a claim is based on equitable principles, whether or not those principles derive from Hindu Law or any other source. There is no reason to suppose that the claim for repartition is opposed to the principles of Hindu Law.437 Apart from the principle of Hindu Law, equity also requires that all the parties to the partition should bear equally the loss arising from certain debts being found irrecoverable and where all the parties to the partition, believing the certain debts due would not be met with the plea of limitation by the debtor, allotted them to one of themselves, but later on the debtors refused to pay pleading that the debts were time-barred, the party to whom the debts were allotted could either demand that the other parties to the partition should reimburse him the proportionate amount of the loss because there was an implied contract to have the partition reopened on the ground of mutual mistake.438

If any property which is not partible is included in the partition deed and any of the allottees sustains loss of any of the properties allotted to him by reason of the fact that they were not partible or the properties allotted to any sharer are lost to him by reason of a claim of a superior title holder, the other parties are bound to compensate such allottees, who suffered loss and to that extent the partition can be reopened. This is based on equitable principle and an implied indemnity to compensate the person who suffers and is certainly a sound principle.439

Moveable property

List of customers can not be treated as property. In one case it was observed that 'it would be strange to divide books of Yajmans and it would as well be strange to treat such books as moveable property. It is no doubt true that the property which is not an immovable property would be a movable property. However, surely the 'Yajmans' cannot be said to be property muchless movable property. If that is so, books of Yajmans cannot be treated as movable property. The only course open in respect of books of Yajmans would be to see that the respective parties have the list and particulars of Yajmans as reflected by all the books of Yajmans. This can be done by supplying Xerox copies of such particulars from the books of Yajmans to the plaintiffs.440

Joint succession

The Hindu Succession Act, 1956 makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu succession would be HUF in his hand vis-à-vis his own son; that would amount to creating two classes amount the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under section 8 of the Act included widow, mother, daughter of predeceased son etc.441

Arbitration award

Where an arbitration award culminated into a decree which was found to be in the nature of family settlement and the claimants were not given any share as per the arbitration award in terms of family settlement, it was held that a suit for partition and possession after the death of the owner, is not maintainable.442

Family arrangement

An ineffective will sometimes though not always, if otherwise consented by all adult members, may be effective as a family arrangement but as the father of a joint Hindu family has no poem to impose a family arrangement under the guise of exercising the power of partition, the power which undoubtedly he has but which he has failed to effectively exercise, cannot in the absence of consent of all male members bind them as a family arrangement.443

Partition of business

The only method by which a business can be divided as a going concern is by dividing the book balances in the name of persons to whom the shares of business have been allotted. A partition may be brought about by mere specification of the shares in the accounts and making entries therein to show that business is held in severalty or in specified shares, it is not necessary that there should be physical division of the business.444

In a joint family business no member of the family can say that he is the owner of any specific share. The essence of joint Hindu family property is unity of ownership and community of interest. Shares of the members are not defined. However, in view of the unity of ownership and community of interest of all coparceners in the joint Hindu family business, the position on partition of joint Hindu family business, whether it be partial or complete, is very similar in law to the position on dissolution of a partnership firm. On partition the shares of the coparceners in the joint family business becoming defined and their community of interests is separated. Division of assets is a matter of mutual adjustment of accounts as in the case of a dissolved partnership firm. The property which so comes to the share of the coparcener, therefore, cannot be considered as transfer by the joint family to a coparcener or the extinguishment of the right of the joint family in that property, the joint family not having is own separate interest in that property which can be transferred.445

Reopening of partition

A partition can only be reopened on the ground that it was effected by fraud, misrepresentation, undue influence and that it is unjust, unfair and detrimental to the interest of the minor.446

If the consent of the parties was not procured by fraud, misrepresentation or any other ground which may vitiate a partition under the general law, the division made by the Panchas and accepted by the parties would be binding upon them. It is always open to the members of a joint Hindu family to divide some properties of the family and to keep the remaining undivided.447

The partition which included outside property is not invalid or a nullity but is merely an inequitable partition and the Court of Equity intervenes not because there was no partition effected which is valid to law but because the partition was inequitable and imposed hardship on one of the parties which should be corrected, if possible. Parties when they effect a partition amongst themselves bargain for this contingency that there might be defect in title to in some of the properties. In all cases of partition, therefore, there is an implied indemnity given by each co-sharer to the others. The law implies that the parties while effecting the partition had in contemplation the fact that the title in some of them might not be perfect and co-sharer to whom such a property is allotted may subsequently suffer loss by reason of his title being displaced by one having a superior title. If the possibility of the title in the property being defective was within the contemplation of the parties, how can there be any mistake as to title so as to nullity partition.448

When a son in his mother's womb is equated with a son in existence, vis-à-vis his right to set aside an alienation or to reopen a partition, the argument proceeds, the father cannot validly adopt, as from the date of conception the son must be deemed to be in existence. But there is an essential distinction between an alienation, partition and inheritance on the one hand and adoption on the other; his right to set aside an alienation hinges on his secular right to secure his share in the property belonging to the family, as he has a right by birth in the joint family property and transactions effected by the father in excess of his power when he was in the embryo are voidable at his instance; but, in the case of adoption, it secures mainly spiritual benefit to the father and the power to adopt is conferred on him to achieve that object. The doctrine evolved wholly for a secular purpose would be inappropriate to a case of adoption. Court should be very reluctant to extend it to adoption, as it would lead to many anomalies and in some events defeat the object of the conferment of the power itself. The scope of the power must be reasonably construed so as to enable the donee of the power to discharge his religious duty. Therefore, the existence of a son in embryo does not invalidate an adoption.449

Principles450 of ascertaining the powers of a son adopted by Hindu widow, seeking to re-open partition are as under:

(i) A widow's adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last;

(ii) Nevertheless, the factum of partition is not wiped out by the later adoption;

(iii) Any disposition testamentary or inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son;

(iv) lawful alienation, in this context, means not necessarily for a family necessity but alienation made competently in accordance with law;

(v) A widow's power of alienation is limited and if — and only if — the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Banaras school;

(vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue have no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene. Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing.451

Where the partition is found to be beneficial to the family, challenge thereto can be denied by the court. In on such case it was observed452 as under:

'The facts disclose that the transactions were entered into not only by all the eight sons but also by all the adult coparcener of the eight branches. It cannot be denied that the transactions were the result of joint deliberations and unanimous decision of all the adult members. The evidence of the solicitor who prepared the documents is that it was for necessity and with the object of preserving the property, the entire properties of the family were transferred to the company consisting of eight sons and their families alone. Eight branches secured equal number of shares in the transferee company. Therefore the family became divided in status before 1932 and that in any event a division in status was effected from that date of the document in 1932, and that even if there was a joint family in existence as the transactions were for the benefit of the family, the other coparcener cannot challenge its validity.'453

Reunion

Institution of a suit for partition by a member of a joint family is an unequivocal intimation of his intentions to separate and there consequently is a severance of his joint status from the date when the suit is instituted. In this case the other members of the family also filed their written statements in the suit. Though the suit was later compromised, it was held in this case that there cannot be in law a reunion of the members of the separated family since there were five members who were minors at the time when the suit was compromised.454

Effect on debt

Partition of the family does not affect a debt incurred out of legal necessity. If no provision has been made for the debt in partition, the family members would be bound to pay the debt despite partition.455

The doctrine of pious obligation under which sons are held liable to discharge their father's debts is based solely on religious considerations; it is thought that if a person's debts are not paid and he dies in a state of indebtedness his soul may have to face evil consequences, and it is the duty of his sons to save him from such evil consequences. The basis of the doctrines thus spiritual and its sole object is to confer spiritual benefit on the father. Where ancestral property has been alienated either under a conveyance executed by the father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, the sons have to prove not only that the antecedent debts were immoral but also that the purchaser had notice that they were so contracted. A mortgage created by the father for the payment of his antecedent debt would bind his sons; so that, if the sons want to challenge the validity of the mortgage they would have to show not only that the antecedent debt was immoral but that the alienee had notice of the immoral character of the said debt.456 Ordinarily the pious obligation of the son does not extend to discharge of commercial debts.457

This doctrine has its origin in the conception of Smriti writers who regard non-payment of debt as a positive sin, the evil consequences of which follow the undischarged debtor even in the after-world. It is for the purpose of rescuing the father from his torments in the next world that an obligation is imposed upon the sons to pay their father's debts. The doctrine, as formulated in the original texts, has indeed been modified in some respects by judicial decisions. Under the law, as it now stands, the obligation of the sons is not a personal obligation existing irrespective of the receipt of any assets; it is a liability confined to the assets received by him in his share of the joint family property or to his interest in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious, the interest of the sons in the coparcenary property can always be made liable for such debts.458

The text of Gautama, Chapter XII, Section 41 to the effect that the sons are not liable for their father's commercial debts has along become obsolete, and sons are now liable for simple money debts incurred by the father in the course of business even though started by the father himself. The pious obligation of the son to pay the debts of a new business started by the father would, in any case, remain.459

The doctrine of pious obligation is not merely a religious doctrine but has passed into the realm of law. The doctrine is a necessary and logical corollary to the doctrine of the right of the son by birth to a share of the ancestral property and both these conceptions are correlated. The liability imposed on the son to pay the debt of his father is not a gratuitous obligation thrust on him by Hindu law but is a salutary counterbalance to the principle that the son from the moment of his birth acquires alongwith his father an interest in joint family property. It is, therefore, not possible to accept the argument addressed on behalf of the appellant that though the community is governed as a matter of custom by the Mitakshara School of Hindu law the doctrine of pious obligation was not applicable. The doctrine is in consonance with justice, equity and good conscience and is not opposed to any principle of Christianity. It follows that the doctrine of pious obligation is applicable to the community of Tamil Vanniya Christians of Chittur Taluk.460

Every member of the family will be liable for all the debts binding on the family and creditors will not be prejudiced if provision is not made for their debts in the partition suit because they will always be at liberty to the suits against the members of the family and the properties in their possession and obtain such relief as is available to them under the law.461

In respect of debts contracted by the father, even for his personal benefit, at a point of time when he is joint with his sons, the sons are liable to pay such debts, unless the debts were incurred for immoral or illegal purposes. This liability of the sons, which had its origin in an obligation of piety and religion, has since metamorphosed into one of legal liability but this does not, however, extend to debts tainted with immorality. The liability is not, however, personal in the sense that the creditor of the father cannot proceed either against the person or separate property of the sons, but such liability is restricted to the interest of the sons in the family property. It is settled that if the debt is contracted by the father after partition, the son cannot be made liable. If, however, the debt is a pre-partition debt, the share of the sons would be liable even after partition, if the debts of the father are not immoral or illegal and the partition arrangement does not make any provision for the discharge of such debts. In case a creditor institutes a suit for the recovery of a debt against the father before partition and obtains a decree, the sons would be liable to discharge the decree passed against the father even after the partition. Even in respect of a pre-partition debt, if a suit is instituted against the father, after partition, but he dies and his separated sons are impleaded as legal representatives, the remedy of the decree-holder against the shares allotted to the sons on partition, would be in execution and not by way of an independent suit. If, however, after partition, a suit is instituted against the father on a pre-partition debt and a decree is obtained against him, such a decree cannot be executed against the sons and a separate suit has to be brought against the sons in order to enable the creditor to realise the amounts out of their shares, though the liability of the sons for the payment of the pre-partition debts admits of no doubt. Thus the liability of the interest of the sons in such cases to discharge the debts incurred by the father is undisputed, though the method and manner of its enforcement by the creditor would vary and the sons must be afforded every opportunity, be it in a suit or execution proceedings to question the binding nature of the debt or liability.462

Even if any loan is taken by the father for his personal benefit which is found as vyavaharik debt and not avyavaharik, the sons are liable to discharge their father's debt under the doctrine of pious obligation and in this view of the matter if any alienation of the joint family property is subsequently made to discharge such antecedent debt or loan of the father, such alienation would be binding on the sons.463

If no provision has been made for discharge of debt at the time of partition, a son is liable to pay pre-partition debt of his father unless such debt is not awyawarik or immoral. Therefore a decree against father can be executed against the son.464

There is no warrant for the view that to saddle the sons with this pious obligation to pay the debts of their father, it is necessary that the father should be the manager or 'karta' of the joint family, or that the family must be composed of the father and his sons only and no other male member. No such limitation is deducible either from the original texts or the principles which have been engrafted upon the doctrine by judicial decisions. Where a debt is incurred for necessity or benefit of the family, the manager, whether he be the father or not, has the undoubted power to alienate any portion of the coparcenary property for the satisfaction of such debts, irrespective of the fact as to who actually contracted the debts.465

In the case of a father manager, even if the debts are not for the benefit of the family, they are binding on the members of the family if they are antecedent debts which are not tainted by illegality or immorality. The debt incurred by brother manager will stand on a different plane from the debts incurred by a father manager, but only to this limited extent, namely, in the case of a brother manager, the debts have to be for the benefit of the family before they are said to be binding on the other members of the family. But for that, there is no other difference between the two sets of debts.466

A natural guardian of a Hindu minor has power in the management of his estate to mortgage or sell any part thereof in case of necessity or for the benefit of the estate. If the alienee does not prove any legal necessity or that he does not make reasonable enquiries, the sale is invalid. But the father in a joint Hindu family may sell or mortgage the joint family property including sons' interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided:

(a) the debt was antecedent to the alienation, and

(b) it was not incurred for an immoral purpose.467

Effect of partition of the joint family on the liability of debt incurred earlier can be summed up as under:

(1) A father can by incurring a debt, even though the same be not for any purpose necessary or beneficial to the family so long as it is not for illegal or immoral purposes, lay the entire joint family property including the interests of his sons open to be taken in execution proceedings upon a decree for the payment of that debt.

(2) The father can, so long as the family continues undivided alienate the entirety of the family property for the discharge of his antecedent personal debts subject to their not being illegal or immoral. In other words, the power of the father to alienate for satisfying his debts, is co-extensive with the right of the creditors to obtain satisfaction out of family property including the share of the sons in such property.

(3) Where a father purports to burden the estate by a mortgage for purposes not necessary and beneficial to the family, the mortgage qua mortgage would not be binding on the sons unless the same was for the discharge of an antecedent debt. Where there is no antecedency, a mortgage by the father would stand in the same position as an out and out sale by the father of family property for a purpose not binding on the family under which he receives the sale price which is utilised for his personal needs. It need hardly be added that after the joint status of the family is disrupted by a partition, the father has no right to deal with the family property by sale or mortgage even to discharge property by sale or mortgage even to discharge an antecedent debt, nor is the son under any legal or moral obligation to discharge the post-partition debts of the father.

(4) Antecedent debt in this context means a debt antecedent in fact as well as in time, i.e., the debt must be truly independent and not part of the mortgage which is impeached. In other words, the prior debt must be independent of the debt for which the mortgage is created and the two transactions must be dissociated infact so that they cannot be regarded as part of the same transaction.

When by the arrangement both coparceners were absolved of the responsibility to discharge the family debts and liability was cast on a third coparcener alone to discharge the same irrespective of the fact whether the properties ultimately turned out to be sufficient or insufficient to meet the burden. The heirs are liable to discharge the debt.468

At the time when the acknowledgement of time barred debt is made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family. If at the relevant time the joint Hindu family as such was no longer in existence because of division or disruption of its joint status, any acknowledgement made by the erstwhile karta of such family cannot keep the debt alive and extend limitation as against all the members of the family, his representative capacity as karta being conterminous with the joint status of the family. It is therefore the duty of the creditor to ascertain after due enquiry whether the person making the acknowledgement still holds his representative capacity as karta of the family. The law does not cast any duty upon the members of the family who do not figure in the endorsement or writing admitting the debt to inform the creditor by a general notice about the disruption of the family. If the creditor fails to make an enquiry and satisfy himself about the capacity of the executant to represent the family at the time of making the acknowledgement, he does so at his own peril. Disruption of the joint family status, puts an end to the representative capacity of the karta and any acknowledgement of a debt made by him after such disruption cannot save the creditors' claim from becoming time-barred against the other members.469

Legal necessity of debt

The validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt not tainted with immorality.470

If agriculture was one of the occupations of the joint family and if loan was borrowed for the purpose of improving the joint family lands, the loan would ipso facto be for legal necessity and it would be joint family debt for which all the joint family property would be liable. If thus the partition makes no provision for repayment of just debts payable out of the joint family property, the joint family property in the hands of coparceners acquired on partition as well as the pious obligation of the sons to pay the debts of the father will still remain. The only effect of partition is that after the disruption of joint family status by partition the father has no right to deal with the property by sale or mortgage even to discharge an antecedent debt nor is the son under a legal obligation to discharge the post-partition debts of the father.471

The marriage of a daughter of a Hindu has been held to be far more obligatory than the marriage of a son. Even such a marriage has to be celebrated by incurring of only expenses within reasonable limits. For the marriage of an adult man like this, it will be unthinkable to spend more than his entire share in the family property and saddling the share of the other holders, who have to meet the expenses of their own marriages.472

Where the immediate reversioner joined in the execution of the security bond, she must be deemed to have consented to the transaction. Such consent may raise a presumption that the transaction was for legal necessity or that the mortgagor had acted therein after proper and bona fide enquiry and has satisfied himself as to the existence of such necessity. But this presumption is rebuttable and it is open to the actual reversioner to establish that there was in fact no legal necessity and there has been no proper and bona fide enquiry by the mortgagee.473 In the case of an alienation by a Hindu widow without legal necessity, the reversioners were not bound to institute a declaratory suit during the life-time of the widow. They could wait until her death and then sue the alienee for possession of the alienated property treating the alienation as a nullity without the intervention of any Court. To such a suit by the reversioners for possession of the property after the death of the widow, the heirs of the widow were not necessary parties. The reversioners could claim no relief against the heirs of the widow and could effectively obtain the relief claimed against the alience in their absence. Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life-time.474

Debt by negotiable instrument

In the case of a negotiable instrument, it is essentially a personal claim unless the contrary is proved. Where the decree is a simple decree for money against person who, no doubt, was the manager of the family at the relevant point of time. But, there was no evidence to show that the money was borrowed for the benefit of the family so as to bind the other members of the family. The decree does not say that the money can be realised from the joint family property. It was held that decree cannot be executed against the joint family property.475

Effect on attachment

The result of the partition in a joint family is nothing more than a change in the mode of enjoyment and what was held jointly is by the partition held in severalty and therefore attachment of the whole coparcenary estate would not be affected by the change in the mode of enjoyment, because the liability of the share which the sons got on partition remains unaffected as also the attachment itself which is not ended by partition. (Section 64 C.P.C. is a useful guide in such circumstances).476

Effect on mortgage

A mortgage created by the father for the payment of his antecedent debt would bind his sons; so that, if the sons want to challenge the validity of the mortgage they would have to show not only that the antecedent debt was immoral but that the alienee had notice of the immoral character of the said debt.477

It is the existence of the father's debt that enables the creditor to sell the property in execution of a money decree against the father. Likewise, if a mortgage decree against the father directs the sale of the property for the payment of his debt the creditor may sell the property in execution of the decree. It is true that the procedure for the execution of a money decree is different from that for the enforcement of a mortgage decree. A money decree is executed by attachment and sale of the debtor's property. For the execution of the mortgage decree, an attachment of the property is not necessary and the property is sold by force of the decree. But this distinction in procedure does not affect the pious obligation of a Hindu son to pay his father's debt. As in the case of a money decree, under a mortgage decree also the property is sold for payment of the father's debt. The father could voluntarily sell the property for payment of his debt. If there is no voluntary sale by the father, the creditor can ask the Court to do compulsorily what the father could have done voluntarily. The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit; so his creditor may bring about such a sale by the intervention of a suit.478

Even where the mortgage is not for legal necessity or for payment of an antecedent debt, the creditor can, in execution of a mortgage decree for the realisation of a debt which the father is personally liable to repay, sell the estate without obtaining a personal decree against him. After the sale has taken place, the son is bound by the sale, unless he shows that the debt was non-existent or was tainted with immorality or illegality.479

The decree against the father does not of its own force create a mortgage binding on the son's interest. The security of the creditor is not enlarged by the passing of the decree. In spite of the passing of the preliminary or final decree for sale against the father, the mortgage will not, as before, bind the son's interest in the property, and the son will be entitled to ask for a declaration that his interest has not been alienated either by the mortgage or by the decree.480

Effect on money decree

It is true that the right of the father to alienate for payment of personal debt is ended by the partition, but it does not affect the pious duty of the sons to discharge the debt of their father. Therefore where after attachment and a proper notice of sale the whole estate including the sons' share, which was attached, is sold and the purchaser buys it intending it to be the whole coparcenary estate, the presence of the sons nominee is not necessary because they still have the right to challenge the sale on showing the immoral or illegal purpose of the debt. Where the pious obligation exists and partition takes place after the decree and pending execution proceedings, the sale of the whole estate in execution of the decree cannot be challenged except on proof by the sons of the immoral or illegal purpose of the debt and partition cannot relieve the sons of their pious obligation or their shares of their liability to be sold or be a means of reducing the efficacy of the attachment or impair the rights of the creditor.481

The son is not personally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation is limited to the assets received by him in his share of the joint family property or to his interest in such property and it does not attach to his self-acquisitions. The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice. The pious liability of the son to pay the debts of his father exists whether the father is alive or dead. It is open to the father, during his lifetime, to effect a transfer of any joint family property including the interests of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit, provided it is not tainted with immorality. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate. The creditor can make the sons parties to such suit and obtain an adjudication from the Court that the debt was a proper debt payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. The sons are liable to pay these debts even after partition unless there was an arrangement for payment of these debts at the time when the partition took place.482

The decree cannot be executed against the entire joint family property in the absence of a decree not indicating that the debt was incurred in the capacity of a manager and that if the creditor intends to make his claim against the entire family, he must not only implead the kartha but must make it clear that the entire claim is against the entire family and the family property and it should also be made clear in the decree so that the other members of the family may not be taken by surprise.483

Effect on properties

Partition is a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had an antecedent title and, therefore, no conveyance is involved in the process as a conferment of a new title is not necessary. Partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had no antecedent title and therefore no conveyance is involved in the process as a conferment of a new title is not necessary.484

Effect on succession

Partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right.485

Effect on tenancy

In coparcenery property each one of the coparceners is owner of the entire property. By partition, he does not acquire any new title to the property, but what he gets is a right to enjoy his share of the property in severalty. In other words, a joint tenancy is put and end to and either a tenancy-in-common is created or the joint tenants have a right to severalty to enjoy the property that falls to the share of each one of them. There is no question of the transfer of title. The joint owner was the owner of the property before partition and he remains the owner of the property after partition. The change is only brought about in his status. Therefore, allocation of the property taken on rent by joint family, to the share of a coparcener does not constitute a transfer of property.486

Consent of father

The coparcener can exercise the right to separate from the joint family by declaration of separation in status by definite unequivocal and unilateral declaration of intention to separate. Right to demand partition without the concurrence of other coparcener or father has been held to be well recognised in law.487

In case of coparcenery in the erstwhile Presidency of Bombay consisting of collaterals like uncles and others, the coparcener cannot seek to exercise the right to ask for severance of status without the consent of the father.488

Impartible estate

To establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the estate. In each case, it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant's branch in the estate was determined so that it became the separate property of the last holder's branch. The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an intention to impress upon the zamindari the character of separate property.489 If any property which is not partible is included in the partition deed and any of the allottees sustains loss of any of the properties allotted to him by reason of the fact that they were not partible or the properties allotted to any sharer are lost to him by reason of a claim of a superior title holder, the other parties are bound to compensate such allottees, who suffered loss and to that extent the partition can be reopened. This is based on equitable principle and an implied indemnity to compensate the person who suffers and is certainly a sound principle.490

Interest of minor

Although the Hindu Law declares the extent of the shares allotable to the several coparceners taking part in the partition, it does not totally prohibit the parties from coming to a different arrangement which, according to them, is just and equitable in the circumstances of the family at the time of the partition. It is well to remember that a partition of family property under the Hindu Law is not a mere division or distribution of properties or a mere enforcement of what may be strictly described as legal rights. The father, who upon partition of the family into branches, becomes the manager of each branch, is invested with reference too the partition with such power as are similar to the powers of an ordinary manager of the family. Because the law requires and expects that every partition should take place with absolute fairness and honest dealing as between members and on that basis considers the partition to be irrevocable. Minors who, by virtue of their minority, could not or did not take direct part in the partition are permitted by law to reopen the partition on proof that the partition has been unfair and unjust so far as they are concerned.491

Where the partition is effected between the members of the Hindu Undivided Family which includes minor coparcenars, the partition is binding on the minors also if it is done in good faith and in bona fide manner, keeping into account the interests of the minors. Where, however, a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unfair and unjust and is detrimental to the interests of the minors, the partition is not binding on a minor and it can be reopened at any time. And in such a case, it is the duty of the court to protect and safeguard the interests of the minors. And the onus to prove that the partition was just and fair is on the party supporting the partition. Such a partition could be reopened at the instance of a minor coparcener though there was no fraud, misrepresentation or undue influence, and despite the fact that at the time of partition his branch was represented by his father.492

Action by a minor for a decree for partition and separate possession of his share in the family property is not founded on a cause of action personal to him. The right claimed is in property, and devolves on his death even during minority upon his legal representative. The Court, it is true, will direct partition only if partition is in the interest of the minor but that limitation arises not because of any peculiarity in the estate of the minor but is imposed for the protection of his interest. The effect of the decision of the Court granting a decree for partition in a suit instituted by a minor is not to create a new right which the minor did not possess, but merely to recognise the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court, and not the decree of the Court that brings about the severance.493

Merely because one of the members of the joint family is a minor, does not operate as a bar to partition.494 The Hindu Law makes no distinction between a major coparcener and a minor coparcener so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major.495

Action by a minor for a decree for partition and separate possession of his share in the family property is not founded on a cause of action personal to him. The right claimed is in property, and devolves on his death even during minority upon his legal representative. The Court, it is true, will direct partition only if partition is in the interest of the minor but that limitation arises not because of any peculiarity in the estate of the minor but is imposed for the protection of his interest. The effect of the decision of the Court granting a decree for partition in a suit instituted by a minor is not to create a new right which the minor did not possess, but merely to recognise the right which accrued to him when the action was commenced. It is the institution of the suit, subject to the decision of the Court, and not the decree of the Court that brings about the severance.496

A suit filed on behalf of a Hindu minor for partition of joint family properties does not on the death of the minor during the pendency of the suit abate, and may be continued by his legal representative and decree obtained therein if the Court holds that the institution of the suit was for the benefit of the minor. It is true that normally the family estate is better managed in union than in division, nevertheless the interest of the minor is the prime consideration in adjudging whether the estate should be divided at the instance of a minor suitor. If the conduct of the adult coparceners, or the claim made by them is prejudicial to the interest of the minor, the Court will readily presume that it is for his benefit to divide the estate.497

Challenge by minor

In appropriate cases even during minority, the minor sons through a proper guardian may impeach the validity of the partition brought about by the father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their interests.498 The principles governing the rights of minor to challenge the partition have been laid down499 under:

(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.

(2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.

(3) Where, however, a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.

(4) Where there is a partition of immovable and moveable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.500

Invalid gift

Under the Madras School of Mitakshara law a donor has no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts are therefore invalid. The invalid gifts were not validated by the disruption of the joint family subsequently. After the disruption of the joint family, donor was free to make a gift of his divided interest in the coparcenary properties to the concubine, but since he did not make any such gift, the transfers by way of gift deed executed earlier were and are invalid.501

Right of mother/widow

A widow is entitled to a share of the joint family properties at a partition thereof among her sons, equal to that of a son or a moiety thereof as the case may be. Under the Mitakshara Law the normal right of a Hindu widow is to maintenance out of the income of the whole of the joint family estate; but when the joint family estate is divided, she is entitled to a share of the estate in lieu of her right to maintenance. Her right to share arises on partition among two sons, and then only. When admittedly, under the preliminary decree in the case the sons and the grandsons of a late son became separated individually therefore the widow/mother has become entitled to a share in the suit properties.502 After 14th of April, 1937, a widow takes the same share as a son.503 Therefore when there is a partition between father and his son, the mother in such case is entitled to a share equal to that of the son.504

The Hindu Widows Re-marriage Act, 1856 had legalized the remarriage of the Hindu widow but had the effect of divesting the estate inherited by her as a widow. By her second marriage she forfeited the interest take by her in her husband's estate and it passed on the next heirs of her husband as if she was dead. The Hindu Widow Re-marriage Act, 1856 has not been repealed by the Hindu Succession Act, 1956 but Section 4 of the latter Act has an over-riding effect and in effect abrogated the operation of the Hindu Widow Re-marriage Act, 1856. According to section 4 of the Hindu Succession Act all existing law whether in the shape of enactments or otherwise shall cease to apply to Hindus in so far as they are inconsistent with any of the provisions contained in this Act. Woman occupied a very dependent position in a Hindu family and their rights to hold an dispose of properties were limited. Their status had to be fully recognized in the modern time of social emancipation and equality and in conformity with the rights guaranteed in the Constitution. The Succession Act sought to bring about certain fundamental and radical changes in the law of succession. On its coming into force the law of succession hither to applicable to Hindus, whether by virtue of any text, rule or interpretation of Hindu Law or any custom or usage having the force of law, ceases to have effect with respect to all matters expressly dealt with by the Act. Section 8 of the Hindu Succession Act provides for a new and definite scheme of succession to the properties of a male Hindu who dies interstate after commencement of the Act. According to this section the property of a male Hindu dying intestate shall devolve, firstly, upon the heirs being the relative specified in class 1 of the Schedule. Widow is one of the heirs specified in class of 1 of the Schedule. She inherits simultaneously with others specified in class 1 of the Schedule. Under the old law the simultaneously heirs of a male intestate consisted only of his son and the son of a pre-deceased son and the son of pre-deceased son of predeceased son. Three more heirs, namely, the widow of the intestate and the widows of the pre-deceased son and of the pre-deceased son of a predeceased son of a predeceased son were added by the Hindu Widow Right to Property Act, 1937. Now under Succession Act a widow inherits simultaneously with a son, daughter and the other heirs specified in Class I of the Schedule and to the exclusion of all other heirs (Section 9). Section 14 provides that any property possessed by a female Hindu whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as limited owner. Therefore, the widow takes her share absolutely and not as a widow's estate. Re-marriage by a widow cannot, therefore, become a ground for divesting the estate inherited by her from her husband. In the this case re-marriage of had taken place sometimes after 1960 i.e. after the vesting in her share of interest on the death of her husband. Section 24 to 28 of the Succession Act deal with the question of disqualification of heirs. Section 24, which is relevant, deals with one of the grounds of disqualification, namely, remarriage but this disqualification is confined only to certain heirs. It is confined to the case of three female heirs. Any heirs who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married.505

In regard to the effect of remarriage of widow/mother, this question arose in another case but the attention of court was not invited to any text of the Hindu Law under which a mother could be divested of her interest in the property either on the ground of unchastity or remarriage. The bar of inheritance to the Hindu widow is based on the special and peculiar, sacred and spiritual relationship of the wife and the husband. After the marriage, the wife becomes an absolute partner and an integral part of her husband and the principle on which she is excluded from inheritance on remarriage is that when The relinquishes her link with her husband even though he is dead and enters a new family, she is not entitled to retain the property inherited by her. The same, however, cannot be said of a mother. The mother is in an absolutely different position and that is why the Hindu Law did not provide that even the mother would be disinherited if she remarried.506

Provision for maintenance

If the sons effect a partition between themselves, the mother is entitled at the time of partition to a share equal to the share of a son which she receives in lieu of maintenance.507

But neither under the customary Hindu law, nor under the Hindu Marriage Act, 1955 nor under the Hindu Succession Act, 1956 nor under the Hindu Adoptions & Maintenance Act, 1956 is there any provision which gives a share to a wife in the joint family property held by her husband nor to a mother in the joint family property allotted to her son in a partition.508

Limitation

A challenge made to disposition of property made on the basis of a partition, after 40 years is barred by limitation.509

In one case a widow became full owner of estate on enforcement of Hindu Succession Act, 1956. A suit for partition was filed by her legal heirs. It was held that article 59 of the Limitation Act is inapplicable and there was a fresh cause of action for the suit after the death of widow for the plaintiff to claim partition as one of her heirs under Section 15 read with Section 16 of the Hindu Succession Act. Thus the cause of action for the purpose of limitation arose on the death of Hindu woman and limitation had to be computed from the date of her death.510

Unequal partition

Unequal division though found in the sastras (e.g., Manu IX, 105, 112, 116, 117, Yaj. II. 114) should not be practised because it has come to be condemned (or has become hateful to) by the people, since there is the prohibition (in Yaj. I. 156) that an action, though prescribed in the sastras, should not be performed when it has come to be condemned by the people, since such an action does not lead to the attainment of Heaven. For example, though Yaj. I. 109 prescribes the offering of a big ox or a goat to a learned brahmana guest, it is not now practised because people have come to hate it; or just as, although there is a Vedic text laying down the sacrificing of a cow 'one should sacrifice a barren cow called anubandhya for Mitra and Varuna' still it is not done because people condemn it. And it has been said 'just as the practice of niyoga or the killing of the anubandhya cow is not now in vogue, so also division after giving a special share (to the eldest son) does not now exist.511

In a case where a partition has taken place and if the share allotted to one of the parties is unconsciously disproportionate it is open to the court in a given to reopen partition but in such a case the partition is admitted and is reopened at the instance of the plaintiff.512 Therefore a partition can be invalidated on the ground that it is contrary to interest of other coparceners and results in unequal and unfair partition.513

However it has also been observed that the proposition is trite that in an undivided Hindu family coparceners have no predictable or defined shares but each has an antecedent title in every parcel of property and is jointly the owner and in enjoyment with the others. But surely it is well-established that at the very moment members decide upon a partition eo instanti, a division in status takes place whereupon the share of the demanding member gets crystallised into a definite fraction and if there is division by metes and bounds the allotment of properties vivifies and specifies such shares in separate ownership. These two processes or stages may often get telescoped when by consensus the coparceners jointly divide the properties. Unequal divisions of properties knowingly made may not spell invalidity and mathematical equality may not be maintained always in a partition while, ordinarily, substantial fairness in division is shown. An argument that in a partition, equal or unequal, there is no element whatsoever of consideration, partial or full, since in a partition there is only an adjustment of rights and substitution of joint enjoyment by enjoyment in severalty. It is a confusion to mix up unequal partition with inadequate consideration and it is a worse confusion to talk in terms of bona fide and mala fide partition where the shares are merely unequal by choice.514

Where the partition is effected between the members of the Hindu Undivided Family which includes minor coparcenars, the partition is binding on the minors also if it is done in good faith and in bona fide manner, keeping into account the interests of the minors. Where, however, a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unfair and unjust and is detrimental to the interests of the minors, the partition is not binding on a minor and it can be reopened at any time. And in such a case, it is the duty of the court to protect and safeguard the interests of the minors. And the onus to prove that the partition was just and fair is on the party supporting the partition. Such a partition could be reopened at the instance of a minor coparcenar though there was no fraud, misrepresentation or undue influence, and despite the fact that at the time of partition his branch was represented by his father.515

When the partition was not found to be detrimental to the interest of minors and valuation of property was either on the basis of purchase price or on the basis of rent fetched by it, it was held that the division of immovable properties was in just, fair and equal manner and therefore the partition was valid.516

The principle of Hindu Law is equality of division, but unequality of division in acreage of the lands does not invariably lead to the conclusion that there was unequal division of the lands at the time of their partition.517