Project Work of Family Law - II

On
Partial Partition

Submitted To:Mr. Ravi Ranjan Kumar

Faculty of Family Law - II

Submitted By: Ankit Anand

Roll No. 916
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2nd Year B.A. LL.B. (Hons)

ACKNOWLEDGEMENT

I am highly elated to have worked on my research Partial Partition under the guidelines of Mr.
Ravi Ranjan Kumar, Faculty of Family Law- II. I am very grateful to him for his proper
guidance.
I would like to take this opportunity to express my profound gratitude and deep regard to him for
his exemplary guidance, valuable feedback and constant encouragement throughout the duration
of the project.
His valuable suggestions were of immense help throughout my project work.
His perceptive criticism kept me working to make this project in a much better way. Working
under him was an extremely knowledgeable experience for me.
I would also like to thank all my friends and my seniors and apart from all these I would like to
give special regard to the librarian of my university who made a relevant effort regarding to
provide the materials to my topic and also assisting me.
Finally I would like to thank my parents and brother for their immense support and presence
during this whole project work.

Ankit Anand

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TABLE OF CONTENT
INTRODUCTION TO COPARCENARY..4
AIMS AND OBJECTIVES.....6
HYPOTHESIS.....6
RESEARCH METHODOLOGY.6
SOURCE OF DATA.......6
1) PARTITION: THE CONCEPT...7-11
2) PARTITION: WHEN AND HOW EFFECTED .12-16
3) PARTIAL PARTITION: THE CONCEPT...17-19
4) THE EFFECT OF PARTIAL PARTITION: THE TAX CONSIDERATION.20-27
5) SAMPLE DEED OF PARTIAL PARTITION.....28-30
6) CONCLUDING REMARKS..... 31
BIBLIOGRAPHY..34

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INTRODUCTION TO COPARCENARY
To delve into the concept of partial partition, we must analyze the concept of Hindu coparcenary.
A Hindu Coparcenary is a much narrower body within Hindu Undivided Family. Generally
speaking, it is a body of individuals who acquires interest by birth in the joint family property.
They are the son, grandson and great grandson of the holder of the joint property for the time
being. The coparcenary, therefore, consists of a common male ancestor and his lineal
descendants in the male line within 4 degrees, running from and including such ancestor. No
coparcenary can commence without a common male ancestor though, after his death, it may
consist of collaterals such as brothers, uncles, nephews etc. The essence of coparcenary is
community of interest and unity of possession.
Incidents of Coparcenership:
Under Hindu law, every coparcenary has certain fundamental features. They are:
1. The lineal male descendants of a person, up to third generation (excluding him), acquires
interest on the coparcenary property held by him.
2. Coparcenary is necessarily a creation of law and it can never be created by agreement or
otherwise.
3. In any coparcenary system whenever a coparcener is born acquires an interest by virtue of his
birth.
4. A coparcenary system is a unique example of unity of possession and community of interest.
Till a partition takes place no coparcener can have absolute ownership on the coparcenary
property and hence alienation of such property without required permission and purpose is
invalid.
5. The interest in any coparcenary property is always fluctuating as the amount of interest varies
with the birth and death of coparceners.
6. A coparcenary property involves collective enjoyment only. There is no concept of individual
enjoyment unless there is a partition to the effect.
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7. Every coparcener has a right to be maintained including a right of marriage expenses being
defrayed out of joint family funds.
8. Every coparcener is bound by the alienation made by the Karta for legal necessity or benefit of
estate and by the legitimate acts of management of the Karta.
9. Every coparcener has a right to object and challenge alienations made without his consent or
made without legal necessity.
10. In a Mitakshara coparcenary any major coparcener can ask for partition any time. Such right
for the asking for partition is an inherent right by virtue of his birth in that very coparcenary
property and such right cannot be taken away by any contract in contrary.
11. Every coparcener has a right of survivorship.1
12. If a property is a coparcenary property then alienation of interest is of any kind with respect
to that property is null and void since every coparcener gets a birth right on that property hence
without giving their due interests.
Difference between a Co-parcener and a Member of HUF:
A HUF, as such, can consist of a very large number of members including female members as
well as distant blood relatives in the male line. However, out of this, coparceners are only those
males who are within 4 degrees in lineal descendent from the common male ancestor. The
relevance of concept of coparcenary is that only coparceners can ask for partition. The other
male family members; i.e, other than coparceners in a HUF, have no direct claim over HUF
property, but can claim only through the coparceners.2

1 (Survivorship now has been abrogated by Amendment Act of 2005).

2 Dr.Paras Diwan, Family Law, Allahabad Law Agency: Faridabad, 2011, p. 234
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AIMS AND OBJECTIVES

The prime objective of the researcher is to:

To acquaint him with the meaning of coparcenary.

To know various aspects related to partition.
To know various aspects related to partial partition.
To know when and how partiton effected.
To know the partial partiton- Tax consideration.
To know how sample deed of partial partition made.
To know various case laws related to partial partition.

HYPOTHESIS
The hypothesis taken by the researcher is tha the partiton under mitakshara school and
dayabhaga school are similar.

RESEARCH METHODLOGY
The various books, various articles, websites, Law journals, Acts, Treatises, are referred for this
topic. The sources from which the material for this research collected are primary & secondary.
The methodology used in the research has been Doctrinal. No non-doctrinal method has been
used by the researcher in this project work.

SOURCES OF DATA

Secondary Sources: - Books on Hindu Law, Websites, and Journals, Magazine, Article
etc.

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PARTITION : THE CONCEPT

The Mitakshara says that Partition is the adjustment of diverse rights regarding the whole, by
distributing them or particular portions of the aggregate. Thus, according to Mitakshara Law
partition has two distinct meanings.
In the first place it means the adjustment into specific shares the diverse rights of different
members according to the whole of family property.
In the second place, it means the severance of the joint status with the legal consequences
resulting therefrom. 3
Partition under Mitakshara law may be defined as, the crystalization of the fluctuating interest
of a coparcenary into a specific share in the joint-family estate. It, therefore, follows that each
co-owner is deemed to be the owner of the whole, in the same manner as other co-owners are
also owners of the whole, the ownership of the one without excluding the co-ownership of the
others. This doctrine is known as the doctrine of ownership in the whole of estate.
Partition is a matter of individual volition, and reduces the members to the position of tenant-incommon requiring only a definite, unequivocal intention on the part of member to separate and
enjoy his share in absolute severalty. As soon the shares of the coparceners are defined, the
partition is deemed effected. It is not necessary that there should be an actual division of the
property by metes and bounds. Once the shares are defined, there is severance of the joint status.
The parties may then 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 henceforth the parties hold as tenants-in-common.
It was held by the Supreme Court in Sarin v. Ajit Kumar 4,. that having regard to the basic
character of the joint Hindu family property, each coparcener has an antecedent title to the said
property, though its extent is not determined until partition takes place. That being so, partition
really means that whereas initially all the coparceners had subsisting title to the totality of the
3 (Katyayana Cited in Mitak Shara-I, 27)
4 AIR 1966 SC 435
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property of the family jointly, that title is transformed by partition into separate titles of the
individual coparceners in respect of several items of properties allotted to them respectively. As
this is the true nature of partition, the contention that partition of an undivided Hindu family
necessarily means transfer of the property to the individual coparceners, cannot be accepted. In
the case of a property which was enjoyed by the members of a coparcenary and which they
divided among themselves in a partition there is no transfer of the property from coparcener as a
unit to individual coparceners who divide it.8 It is only a case of converting what had been
enjoyed by them with separate rights. There is no element of transfer in such a division.
The Supreme Court in Kalyani v. Narayanan5 has laid down in detail the essential ingredients of
partition. It says that the first requirement of partition is that any of the male members of the
joint Hindu family should express his clear and definite will about partition. The medium of
expressing the desire to this effect may be according to the circumstances. The desire of this
effect must be known to all other members of joint family who are likely to be affected by it.
This could be done by notice or by filing a suit. Partition is the severance of the joint status.
Every coparcener has the right of claiming partition. In such circumstances a clear declaration to
this effect would be sufficient. By partition the joint status comes to an end resulting in putting
the coparcenary to an end.
Partition and Family ArrangementDistinguished.A partition must be distinguished from a
family arrangement, setting the mode of enjoyment of the family property, as such, an
arrangement does not put an end to the joint status. It is possible for members of a joint family to
divide property among themselves for the purposes of convenient enjoyment or management
without the intention of making a partition.
A family settlement can be made orally also and the court will not ignore such oral settlement
on the ground that it is not permissible in law. A family settlement among Hindus is a wellknown and recognized mode of division of joint-family property.
The following may be mentioned as the points of difference between the two

5 AIR 1980 SC 1173

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(i) A family arrangement is concluded with the object of settling a bona fide dispute arising out
of conflicting claims to property. Partition is not necessarily a compromise of conflicting claims.
(ii) A widow or a limited owner or a manager can enter into a family arrangement with persons
who are not coparceners: whereas coparceners alone can effect partition.
(iii) Family arrangement can never be an unilateral act. Partition may be effected by an
unilateral declaration.
Agreement not to Partition.Agreement between coparceners not to partition coparenary
property does not bind even the parties thereto, according to the Bombay High Court, any party
may, notwithstanding the agreement, sue the other parties for partition. The High Court of
Calcutta, Allahabad and Nagpur have held that such an agreement does bind the actual parties
though it cannot bind their assigns or the persons to whom they transfer their shares,9 unless
there is a stipulation not to assign.
the Partition as a subject under the following heads :
(a)subject-matter of partition, i.e., the property to be divided;
(b)

persons who have a right to partition, and who are entitled to a share on partition;

(c)

how partition is effected and mode of partition;

(d)

rules relating to the allotment of shares;

(e)

reopening of partition; and reunion.

Subject-matter of Partition :- As a general rule, the entire joint family property is, and the
separate property of coparceners is not, subject of partition. A plaintiff seeking partition must
prove the existence of joint family property. But where existence of joint family is not disputed,
every coparcener is entitled to equal share.2 However, some properties may be held jointly by
two or more coparceners, such as when there exists a coparcenary within a coparcenaries, and if
a general partition takes place, these properties may also be divided among such coparceners,
though other coparceners might claim a share in them. If the joint family is in possession of
property held by it as a permanent lease, such property is also available for partition even though
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lease may be liable to cancellation in certain circumstances. The impartibly estates which
constitute joint family property are not liable to partition.
Properties which are not capable of division by their very nature :- Although the general rule is
that the entire joint family property is available for partition, yet there may be certain species of
joint family property which are, by their very nature, incapable of division, then such properties
cannot be divided. Manu ordained : A dress, a vehicle, ornaments, cooked food, water and
female slaves, property destined for pious use and sacrifices, and a pasture ground, they declare
to be indivisible.6
In respect of those properties, three methods of adjustment are available
(1) Some of these properties may be enjoyed by coparceners jointly, or by turns, (under this head
will fall properties like wells and bridges, temples and idols),
(2) Some of these properties may be allotted to the share of coparcener and its value adjusted
with the other property allotted to other coparceners, or
(3) Some of these properties may be sold and sale proceeds distributed among the coparceners.
We may discuss the subject with particular reference to :
(a) the dwelling house, and
(b) the family temples and idols, and
(c) the staircases and wells.
Dwelling house.The Smritikars were of the view that the dwelling house should not be
partitioned. It was understandable in a predominantly agricultural society. It is understandable
even in our modern times when the dwelling house is too small. But the modern law does not
consider the rule as sacrosanct. Ordinarily, in a partition, the court will, if possible, try to effect
an arrangement which will leave the dwelling house entirely in the hands of one or more
coparceners. If no arrangement which is agreeable to the parties, or which is equitable can be
possibly made, the dwelling house may be sold and sale proceeds divided among the
6 Manu Cha. XI v. 43
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coparceners. This alternative is available with respect to any property, the division of which
cannot be made equitably and coparceners fail to arrive at a satisfactory arrangement among
themselves. This has been facilitated by the Partition Act, 1893.

Family shrines, temples and idols.The family shrines, temples and idols constitute such
species of joint family property which can neither be divided nor sold. The same may apply to
certain sentimental and rare items of property which the family cherishes and which may not be
easily subject to any valuation 7, The courts have adopted the following courses in respect of
family shrines, temples and idols
(a) The possession of idols or temples or shrines may be given to the senior coparcener (or to a
junior member, if he happens to be the most religious and suitable among the others ,with the
liberty to other coparcensors to have an access to them for the purpose of worship at all
reasonable times.
(b) In case the family consists of pujaris who make a living out of the offerings, the court may
settle a scheme under which each coparcener worships and takes the offerings by turns.3 The
court may also devise a scheme under which it may entrust the worship to one of the coparceners
with the direction that offering may periodically be distributed among the coparceners in
accordance with their shares.
Staircases, wells, etc.Staircases,4 courtyards, wells, tanks, pastures, roads, right of way and the
like things are species of property which are, by their nature, incapable of division or valuation.
In respect of them, an arrangement has to be devised so that they remain in the common use of
all coparceners. Yajmans cannot be said to be property much less movable property, hence it
cannot be partitioned.

7 Pedasubhajya v Akanamma (AIR 1958 SC 1042)

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MODES OF PARTITION (PARTITION HOW EFFECTED)

(1) Partition by mere declaration to separate.Partition under the Mitakhara Law is a severance
of joint status and as such it is a matter of individual volition. All that is necessary to constitute
partition is a definite and unequivocal indication of his intention by a member of joint-family to
separate himself from the joint family and enjoy his share in severalty. A division in status takes
place when he expresses his intention to become separate unequivocally and unambiguously and
the tiling of a suit for partition is a clear expression of such an intention.

The Supreme Court laid down in, Puitorangamma v. Rangamma 8, that it is now well-settled
doctrine of Hindu law that a member of joint 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 severalty. It is not necessary that there be an agreement between all
the coparceners for the disruption of the joint status. It is immaterial whether the other
coparceners in such a case give their assent to the separation or not.
(2) Partition by notice.A severance of joint status may be effected by serving a notice by a
coparcener on the other coparceners, including his intention to separate and enjoy the property in
severalty or demanding partition of the property. The notice may be subsequently withdrawn
with the consent of the other coparceners and if it is withdrawn, there will be no partition.
(3) Partition by will.Partition may be effected by a coparcener by making a will containing a
clear and unequivocal intimation to his coparceners of his desire to sever himself from the joint
family or containing an assertion of his right to separate. But where there is nothing in the will
executed by a member of Hindu coparcenary to unmistakably show that the intention of the
8 AIR 1968 SC 1018
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testator was to separate from the joint family the will does not affect severance of status. The
father in joint family cannot impose any family settlement by saying that he is exercising the
right of partition. Although he does possess the right. But a will to the above effect could be
effective only if all other adult members have given their consent to it.
(4) Conversion to another faith.Conversion of a coparcener to any other religion operates as
partition of the joint status as between him and other members of the family. Such a convert
takes his share in the family property as it stood at the date of his conversion. Reconversion of
the convert to Hinduism does not ipso facto bring about his coparcenary relationship in the
absence of subsequent act or transactions pointing to a re-union.
(5) Marriage under Special Marriage Act, 1954.Marriage of a Hindu under the Special
Marriage Act causes severance between him and the other members of the family.
(6) Partition by agreement.The true test of partition being the intention of the member of the
joint family to become separate owners, it follows that an agreement between the members of a
joint family to hold and enjoy the property in certain defined shares as separate owner operates
as partition, although the property itself has not been actually divided by metes and bounds. The
two ideasthe severance of joint status and a defacto division of property must be kept distinct.
As partition under the Mitakshara Law is effected on the severance of joint status, the allotment
of shares may be done later. Even it may be by an unregistered partition deed which may be
looked into established severance of status, though it cannot be looked into for terms of partition.
Once the members of the joint family or heads of the different branches of the coparcenary agree
to specification of shares, the same can be treated to result in severance of joint status, though the
division by metes and bounds may take place later on.
(7) Partition by arbitration.An agreement between the members of a joint family whereby
they appoint an arbitrator to arbitrate and divide the property operates as a partition from the date
thereof. The mere fact that no award has been made is no evidence of a renunciation of the
intention to separate. Where an award has been made, the question whether it divided all the
members from one another or only some of them from the others is to be determined by a
construction of the award, and the subsequent conduct of parties is irrelevent. Though a division
by the arbitrators of only part of the joint property under their award is open to question on the
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ground that the award is uncertain in its terms and incomplete, yet it is competent to the parties
to agree to the division being made by the arbitrators step and that each should be final in itself.
(8) Partition by father.The father may also cause the severance of the sons without their
consent. It is remnant of the ancient doctrine of Patria Potestas (Paternal power). The topic will
be dealt with in detail under separate heading. Hindu father under Mitakshara law can demand
for partition along with his sons even in presence of the karta of the family, and thus can bind the
Sons by partition. By this he can get the shares of his Sons fixed and also get them separated. But
he does not have the right to get the Joint family property partitioned through the will. Although
he could do the same with their consent.
(9) Partition by suits.The institution of a suit for partition ipso facto effects severance of the
joint-family status and as such the mere institution of such a suit effects immediate severance of
joint status. A decree may be necessary for working out the resultant severance and for allotting
definite shares but the status of the plaintiff as separate in estate is brought about on his assertion
of his right to separate whether he obtains a consequential judgment or not So even if such a suit
was to be dismissed, that would not effect the division in status which must be held to have taken
place when the action was instituted.
Their Lordships of the Supreme Court held in Girjanandini v. Brijendra 9, that partition may
ordinarily be effected by the institution of suit. In case of suit for partition in joint status, fathers
consent to the suit for partition is no longer necessary. Thus the son is fully eligible to file a suit
for partition even during the life time of his father.
Modes not exhaustive.The nine modes of partition given above are not exhaustive. There may
be other circumstances as well which if indicated unequivocal intention for partition will be
admissible. Partition is a severance of the joint staus. It consists in defining the shares of the
coparceners. Until partition a coparcener cannot say that he has definite share, e.g. one half or
one-third. Partition is a matter of individual volition and all that is necessary to constitute
partition is a definite and unequivocal indication of his intention by a member to separate himself
from the family and enjoy the share in severalty. It is immaterial in such a case whether the other
members assent or not. The intention to separate may be evidenced in different ways either by
9 AIR 1967 SC 1124
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express declaration or by conduct. Thus, it may be expressed by institution of a suit for partition
o by serving a notice on the coparceners.
The institution of a suit is a sufficient unequivocal indication of the intention of the plaintiff
coparcener to separate and there consequently is a severance of the joint status from the date
when it is instituted. A decree may, however, be necessary for working out the result of the
severance in status which is brought about by the assertion of his right to separate whether he
obtains a consequential judgment or not. Partition may ordinarily be effected by institution of a
suit, or by submitting the dispute as to division of the properties to arbitrators, or by a demand
for a share in the properties or by conduct which evinces an intention to sever from the family: it
may also be effected by agreement to divide the property. But in each case the conduct must
evince unequivocally the intention to sever 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 4lttendant circumstances. Where there is severance between
different branches of a joint-family, severance between the members of the branches inter se may
not in absence of an expression of unequivocal intention be inferred. It is the intention to sever
followed by conduct which seeks to effectuate the intention that partition results, mere
specification of shares without intention to sever does not result in partition.
Effect of Partition.On partition of joint family, the joint status comes to an end and also the
coparcenary is put to an end. The share of every branch of coparceners is also determined.
(a)Where the partition is general, the undivided family as a unit comes to an end; where it is
partial, the members of the family who severed themselves from the unit lose the joint status
which they had previously enjoyed as members of that particular group.
(b)

Where partition takes place by conversion, severance is effected between the convert on

one hand and the rest of the family on the other; similarly where partition takes place by
marriage (under the Civil Marriage Act); severance is effected between the persons marrying on
the one hand and the rest of the family on the other.

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(c)

Partition automatically alters the character of the property of the family, the coparcenary

of the family, the particular joint tenancy known to Hindu Lawgives place to tenancy-incommon of the dividing or separating members.
(d)

But partition does not annul the family or other relation and does not disturb the rights

incidental to such relation, such as, the right to inherit.

Burden of proof.The general principle underlying the burden of proof 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
Mode of partition :- A partition can be made by a definite, unambiguous declaration of intention
by any coparcener to separate himself from the family. If this is done, it would amount to
division of status, whatever mode may be used, partition may be effected by institution of a suit,
by submitting the dispute as to division of the properties to arbitration, by a demand for a share
in the properties, or by conduct which evinces an intention to sever the joint family; it may also
be effected by agreement to divide the property. But separate enjoyment for the sake of
convenience is not a partition. Thus, deepening a well, laying underground pipes, getting loan on
security of portion in ones possession are not adequate proof of partition.
Partition by conduct.The severance of status may also take place by conduct. The conduct, like
a declaration of intention, must be unequivocal, explicit and definite. From what conduct
severance of status may he deduced, will vary from case to case. There can be numerous
circumstances from which such an inference can be drawn. For instance, separation of food,
worship, dwelling, separate enjoyment of the property, separate income and expenditure,
separate business transaction, and the like are instances of conduct from which inference of
severance may be drawn.
Automatic severance of status.Conversion of a coparcener to a : non-Hindu religion (i.e.,
Islam, Christianity, etc.) operates as an automatic 4 severance of status of that member from
others, but it does not amount to severance of status among the other members inter Se. From the
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date of conversion, he ceases to be a coparcener, and, therefore, loses his .right of survivorship.
He is entitled to receive a share in the joint family property as it stood at the date of conversion.
Exactly, the same result follows if a coparcener marries a non-Hindu under the Special Marriage
Act, 1954.
Parties to partition. In a suit for partition, the heads of the branches are essential parties. All
members of the branch need not be made parties to the suit.
Registration of partition deed.It is a well established proposition of Hindu law and when
partition is effected by a deed of immovable property worth Rs. 100 or more, registration is
compulsory But it can be used to show factum of partition.

PARTIAL PARTITION : THE CONCEPT

Ordinarily, if a member sues his coparceners for partition, the suit must comprise all the joint
property which is then capable of partition. The general rule undoubtedly is that there cannot be a
partial partition. At any rate, a coparcener cannot, by suit, enforce a partial partition.
Partial partition by private arrangement is, however, allowed.
A suit for partition should ordinarily embrace all the joint family properties. However, as laid
down in Hari v. Ganpatrao10 ,this general rule is subject to certain qualifications..
When a suit for partition is by a coparcener, it need not be for the whole property,
(1) Where different portions of such property are situated in and out of India (Ramacharya v.
Anantcharya ; 11or

10 (7 Bom. 272)
11 (7 Bom. 272)
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(2) Where a portion of the property is not available for actual partition, as for instance, if it is in a
mortgagees possession, or if it is inam land requiring Government permission to give
jurisdiction to the Court; or
(3) Where property is held in partnership by the joint family along with strangers, who have no
interest in the family partition among the members, and who could not, therefore, be made
parties in the family partition (Purshottam v. Atmram12, or
(4) Where property was excluded through mistake, accident or fraud at the time of the previous
partition.
In such cases, a suit for partial partition, i.e., partition of such property as is available, will lie.
A partition effected between coparceners by mutual agreement may be partial, either in respect of
the property or in respect of the persons making it.
I. Partial as to property:
It is open to the members of a joint family to make a division and severance of interest in respect
of a part of the joint property, while retaining their status as a joint family, and holding the rest as
the properties of a joint and undivided family. But, once it is shown that the parties intended to
sever themselves, the joint status comes to an end, and even the property which remains
undivided would lose its joint nature, and the members of the family would hold it as tenants-incommon, unless there is a special agreement to hold it as joint tenants.
II. Partial as regards persons:
Just as a partition may be partial as regards the property, so it may be partial as regards the
persons separating. The rules of presumption regarding partial partition or otherwise, as laid
down in several important decisions of the Privy Council and the Supreme Court may be
summed up as follows:
(i) The general principle is that every Hindu family is presumed to be joint, unless the contrary is
proved.
12 (23 Bom. 597);
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(ii) But once it is proved that one member of the joint family has separated from the others, there
is no presumption that the rest continue to live jointly. The Privy Council has observed in
Balabux v. Rukmabai13: There is no presumption when one coparcener separates from the
others, that the latter remain united. An agreement amongst the remaining members of the joint
family to remain united or to re-unite must be proved like any other fact.
But no express agreement is necessary for this purpose. The intention to remain joint may be
inferred from their conduct indicating such an intention.
The Supreme Court also has approved these principles in Bhagabati Prasad v. Dulhin
Rameshwari.14
(iii) When there has been a separation between members of a joint family, there is no
presumption that there was a separation between one of the members and his descendant.
(Haribaksh v. Babulal).15
(iv) A Hindu father may be separated from his sons, and the sons may remain joint, or he may be
separated from his sons by one wife, and remain joint with his sons by another wife.
(v) In a suit for partition, the decree for the partition is the evidence to show whether the
separation was only a separation of the plaintiff from his coparceners or was a separation of all
the members of the joint family from each other.16
(vi) A renunciation, by a member, of his interest in the family property does not lead to the
presumption that the other members are separated.

13 (1903) 30 I.A. 130

14 [(1951) S.C.R. 603].
15 (1924) 51 I.A. 153)
16 (Palani Ammal v. Muthuven Katacharla, (1925) 52 I.A. 83)
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Though a partition may be partial by mutual agreement of the parties, no coparceners can enforce
a partial partition against the other coparceners.
In K.T. Prasad v. C.I.T.17 the Supreme Court reiterated following basic principles of partition and
partial partition:
(i) When there is a partition, it is presumed that it was a total partition, both as to parties and
property.
(ii) When there is a partition between brothers, there is no presumption that there has been a
partition between one of them and his descendants.
(iii) However, it is open to any person who alleges that a partition has been partial (either as to
persons and as to property), to establish that fact.
(iv) Hindu law does not require that, in every case of partition, the property must be partitioned
by metes and bounds. A declaration of intention by a coparcener to become divided brings about
a severance of status, and it is open to the parties to thenceforth enjoy their respective shares of
the property as tenants-in-common.

PARTIAL PARTITION: THE TAX CONSIDERATION

Every person in a Hindu Joint Family must get deed of partition executed on stamp paper and
have it registered
Continuing the discussion on partitions in Hindu Joint Families (governed by the Mitakshara
School of Hindu Law), an oral partition, duly confirmed by a memorandum executed
subsequently, is valid in law and is admissible in evidence. Such a memorandum can have a
nominal stamp duty, as it only confirms an earlier oral partition and does not by itself create a
partition.

17 [(1982) 1 S.C.C. 447)]

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To provide more authenticity and credibility, such a memorandum can be duly attested by a
Notary Public. The above mode of partition was utilised mostly because it was simple and easy
to understand and carry out. However, such a partition does not get the immense legal benefits
and consequences available under a deed of partition duly stamped, executed and registered
before the appropriate registration authorities.
In the case of a registered deed of partition, the same is duly entered into and copied in Book-I
maintained by the registration authorities and it will find a place and mention in any of the
encumbrance certificates issued in respect of the immovable properties covered in the deed of
partition.
When there are a number of immovable properties situated in different districts or States and
they are covered in the deed of partition, it is essential to get a certified copy of such a deed of
partition duly registered before the other registration authorities also in whose jurisdictions the
respective immovable properties subject to partitions are located and situated.
In Karnataka, the stamp duty payable on such a deed of partition of a Hindu Joint Family is
Rs.1,000 per share of the members of the joint family and the registration fee is Rs.500 per share.
If stamp duty and registration fee are nominal, it is in the best interests of every person in the
Hindu Joint Family to get such a deed of partition duly executed on a stamp paper (of the
aforesaid nominal value) and have the same duly registered before the competent registering
authority.
Partial partition prior to Hindu succession law
There was a partial partition in a Hindu Undivided Family before December 31, 1978. The
partial partition was recognised under the Income-tax Act.
At the time of partial partition, the HUF (normally identified as bigger/major HUF) consisted of
Karta, wife, a son (S1) and a daughter (D1). In respect of the share received on partial partition
by the Karta, he is assessed in the status of a Hindu Undivided Family (normally identified as
small/minor HUF) consisting of Karta and wife. Please note that no property or amount was
given to daughter (D1) at the time of partial partition.
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After partial partition, another son (S2) and another daughter (D2) were born. Please advise on
the rights of daughters (D1 and D2) in both the HUFs (bigger/major and small/minor) after the
recent amendment of the Hindu Succession Act.
The amendment to the Hindu Succession Act does not have any effect on partition and partial
partition prior to the date on which the present amendment came into effect. The creation of a
larger HUF and a minor HUF as a result of partial partition is recognised under the Hindu Law
and recognised for income-tax purpose only if it had occurred before December 31, 1978. The
income-tax law will have to follow the effect of the amended law without any change in the
status of both larger and smaller families in the facts of the reader's case. There is addition of a
son and a daughter, so that both children born after the partial partition will automatically
become members of both the larger HUF and the father's smaller HUF. In the other case, the
smaller HUF, which had initially only a Karta and his wife on partition with the other coparceners at the relevant time, will have the son or daughter subsequently born after the partial
partition, since both of them will be acquiring rights of a coparcener over the assets of the
smaller HUF. They will also be members of the larger HUF having equal right with their brother
and sister born before the partial partition.
The son, who had already got partially partitioned, will not have coparcener's right in the smaller
joint family, but the daughter prior to partition continues as a member of the smaller and the
larger family as she could not have left the family on partial partition, since she had only
maintenance right over the joint family property at the relevant time. The daughter and son born
later will therefore have a right to partition and equal share in both the smaller family and the
larger joint family.
A partition in a Hindu Joint Family can be total i.e., dealing with every member and co-parcener
of the family and also in respect of each and every property of the Hindu Joint Family18.
A partial partition can take place in respect of some of the properties of the family, which can be
divided among the members of the family and the other properties will be left intact with the
Hindu Joint Family itself. In such a case, the Hindu Joint Family continues to exist in respect of
18CIT v. G.D. Mukim, 118 ITR 930 ( P & H ).
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the remaining properties of the family. A partial partition applicable to only certain members of
the family can take place in the following manner:
Any member or co-parcener or a group of members or co-parceners in their individual capacities
can release themselves from the Hindu Joint Family by executing deeds of release by which such
released persons get a specific property or properties or a specific amount of money from the
Joint Family.
The released members cease to be members of the Hindu Joint Family and the Hindu Joint
Family itself will continue to exist in relation to the other members of the family. In this context,
it is pertinent to note that a Hindu Joint Family, termed and referred to as Hindu Undivided
Family (HUF), is an independent assessable entity in respect of income tax and other direct tax
laws, apart from the members constituting the Hindu Joint Family. When such a recognition is
made, the Income Tax Department should be informed of the partitions and releases in the Hindu
Joint Family and the events recognised/ approved under the direct tax laws.
Certain provisions of the Income Tax Act, 1961, have to be taken note of in respect of tax matters
of a Hindu Joint Family and the partitions which have taken place. In respect of computation of
capital gains, Section 49 of the Income Tax Act, 1961, deals with the mode of ascertaining the
cost with reference to properties acquired through partition in the joint family.
Distribution of properties including immovable properties in partial or total partition of a Hindu
Joint Family will not be regarded as a transfer for the purposes of any tax incidence on capital
gains under Section 49(1)(i) of the Income Tax Act, 1961.
Section 171 deals with the legal necessity of passing a specific order by the Assessing Officer in
relation to any claim being made as to partition in a Hindu Joint Family by the family members.
This matter will be discussed in the subsequent issues.
The legal effects and consequences of a Notional Partition arising on the death of a coparcener
in a Hindu Joint Family as covered by Section 6 of the Hindu Succession Act, 1956, and as per
the provisions of the Hindu Succession (Amendment) Act, 2005, will also be discussed in the
subsequent issues.
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The Constitution Bench of the Supreme Court, has decided the constitutional validity of Section
171(9) of the Income-tax Act which derecognises the concept of partial partition of Hindu
undivided family (HUF) which has take place after December 31, 1978 in Union of India vs MV
Valliappan19.
In its judgment, the Constitution Bench stated that for the purposes of I-T Act partial partitions
taking place on or after January 1, 1979 are not to be recognised. If an enquiry as contemplated
under sub-Section(2) is held and completed after cut off date it would be treated as null and void.
The facts of the case were as follows: A petitioner was karta, of HUF which was partner in a
partnership firm in which its funds were invested. A partial partition of certain assets of
belonging to HUF, by deed of partition was effected on April 13, 1979.
The income-tax officer, on an application made under Section 171(2) of I-T Act by karta of HUF,
passed an order dated December 28, 1979 recognising partialpartition. Thereafter, for the
assessment year 1980-81 a return was submitted on behalf of HUF on April 12, 1980 which did
not include the income from properties which was the subject matter of partial partition.
The income from such properties were declared by the respective individuals in their respective
returns. In accordance with the said return assessment was finalised. Similarly, wealth tax returns
were also filed for assessment year 1980-81 and accepted by income-tax officer. The income-tax
officer on March 4, 1983 send a notice under Section 148 of I-T Act stating that income of the
petitioner had escaped assessment and the income-tax officer proposed to reopen the completed
assessment for the year 1980-81. In spite of the objection by assessee that order of partial
partition not being revoked or cancelled continue to be effective was rejected by officer and a
fresh assessment was made for HUF including the income relating to properties which were
partially partitioned. The reassessment order waschallenged by a writ petition in the high court.
The high court summarised its conclusions as follows: (1) Section 171 (9) of I-T Act cannot be
sustained on the ground that it is a measure to counteract the tendency of tax avoidance and it
suffers from vice of legislative incompetence and it is also void on the ground of violation of
Article 14 of the Constitution of India. (ii) Section 171(9) entrenches upon the charging
19 1999 AIR SCW 2689
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provisions in Section 4 of I-T Act and thus enlarges the scope of Sections 4 & 5 of I-T Act (iii)
The effect of Section 171(9) of the I-T Act 1961 is that it virtually negatives the right of partition
under personal law only in certain cases of partition after December 31, 1978 and there is no
valid basis of justification for treating HUFs separately in a hostile manner with reference to
December 31, 1978, the choice of the date being clearly arbitrary.20
The Supreme Court considered the contentions raised by appellant (revenue) and the argument of
respondent that the high court decisiondeclaring sub-Section (9) of Section 171 to be invalid and
does not call for interference of the Supreme Court examined in detail Section 171 of the Act.
It stated that for the purposes of I-T Act partial partition taking place on or after January 1, 1979
are not to be recognised. The language of the section is very clear and even if enquiry as
contemplated under sub-Section(2) is held and completed in respect of partial partition after cut
off date it would be treated as null and void. Thus such a HUF is to be assessed under the Act as
if no partial partition has taken place.
Supreme Court observed that the Parliament has the authority to delete or amend any provision
of the I-T Act and it cannot be said that it is beyond legislative competence. The relevant item 82
of list I of the Seventh Schedule to the constitution empowers the parliament to enact the
legislation for imposition of taxes on income other than agricultural in come further the concept
of partial partition of HUF was not recognised underI-T Act 1922 and was recognised only under
the I-T Act 1961. All that is done by the amendment is to restore the status quo ante that
prevailed prior to 1961 Act. As per the objects and reasons of the amendment act, it was
introduced because multiple HUFs were created by effecting partial partitions as regards persons
constituting the joint family or as regards the properties belonging to the joint family or both,
which resulted in tax reductions or evasion and with a view to curbing this creating of multiple
HUFs by making partial partitions, it was proposed to derecognise partial partitions of HUF
effected after December 31, 1978 for tax purposes21.

20 CIT v. Rameshwarlal Sanwarmal 82 ITR 628 (SC).

21 Surjit Lal Chhabda v. CIT, 101 ITR 776 (SC)
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By having multiple partial partitions, it is possible to manipulate the affairs of the HUF for
reduction of tax liability and to prevent such manipulation sub-Section (9) is added. It is for
legislature to decide whether the recognition of partial partition introduced in the I-T Act should
continue or not. The Supreme Court opined that cut off date of December31, 1978 cannot be said
to be arbitrary. It is settled that the choice of a date as a basis for classification cannot always be
dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown
to be capricious or whimsical in the circumstances.
The Supreme Court rejected the argument that addition of new section entrenches upon the
charging Section 4&5 of the I-T Act and enlarges the scope of Sections 4&5 of the act. Even
with regard to total partition, it was required to satisfy all the conditions prescribed in Section
25A and an order was required to be passed for that purpose under Section 25A(1). If the claim
of partition was disallowed after inquiry the HUF was liable to be assessed as such. After the
new act partial partition was not recognised unless it satisfied the conditions laid down in the
explanation.22
Therefore the contention that sub Section (9) entrenches upon charging provision in Sections 485
of the Act is without basis. Supreme Court noted that thelegislature under Section 171 of the I-T
Act has assigned special meaning to the word "Partition" under the explanation which is different
from general principles of Hindu law and it contains the deemed provisions under which
partition of the property of the HUF could be accepted. Relying on above decision Supreme
Court observed "It is for legislatures to recognise or not to recognise partial partition of HUF
property for the purpose of levy and collection of tax.
Further, consideration of hardship is totally irrelevant for deciding the legislative competence. It
is settled law that hardship or equity has no role to play in determining eligibility to tax and it is
for legislature to determine it. Supreme Court allowed the appeals and judgements of high court
holding Section 171(9) of I-T Act 1961 and Section 20-A of the Wealth Tax Act 1957 as
unconstitutional were quashed and set aside the writ petitions filed by respondents in Madras and
Karnataka high court were dismissed23.
22 C. Krishna Prasad v. CIT 97 ITR 493 (SC)
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In the case of Apoorva Shantilal Shah (HUF)/Seth Gopal Dass (HUF) Vs. Commissioner
of Income-tax24, the Hon'ble Supreme Court has recently held that the right of the father to bring
about the disruption of the joint family properties in exercise of his superior right as father or of
his right as patria potestas is recognised in ancient Hindu Law; it is also well settled by judicial
decisions that partial partition of a HUF qua some properties or qua some members is
permissible and valid in law. The Supreme Court also held that, if the father, in exercise of his
superior right or his right as patria potestas. can bring about a complete disruption of joint family
properties of HUF consisting of himself and his minor sons even against the wishes of the minors
and if partial partition is permissible with the consent of the sons when they have all become
majors, there is no reason to limit the power or authority of the father to effect the partition only
if it is total. Thus it has consequently been held by the Hon'ble Supreme Court that partial
partition of properties brought about by the father between himself and his minor sons cannot be
said to be invalid under the Hindu law and must be held to be valid and binding. The Supreme
Court, however, added that such a partition whether effected in exercise of his superior right as
father or his right as patria potestas is subject to the right of the sons to challenge the partition by
way of appropriate proceedings if the partition is not fair and just.25
The said judgement has settled one of the judicial controversies that was pending before
the Supreme Court. The ratio of this judgement will, however, be applicable to assessments upto
the assessment year 1979-80. since the amendment made by the Finance (No. 2) Act, 1980, has
statutorily de-recognised, for the purposes of the Income-tax Act. partial partition effected after
31st December. 1978. This amendment has been made effective from the assessment year 198081 and onwards.26

23 Prem Kumar v. CIT , 121 ITR 347 (All.)

24 Taxman, Part 1, Vol. 13, April, 1983, page 1
25 CIT v. Veerapa Chettiar, 76 ITR 467(SC)
26 (Ins. No. 1521 dated 29-7-83 F. No. 209/2/ P3-ITA II)
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SAMPLE DEED OF PARTIAL PARTITION

This Deed for Partial Partition is made on the .. Day of , BETWEEN SN, son
of ON, resident of . (Hereinafter called the first party) of the first
part, AND PN, son of ON, resident of ., (hereinafter called second party)
of the second part, AND PM, son of ON, resident of . (hereinafter
called the third party) of the third part.
Whereas the said ON and his son the said SN, PN and PM form a Hindu undivided family, of
Bombay and Poona, are desirous to partition the properties referred to in Schedule appointed to
this deed without serving their Hindu undivided family Status.
NOW THIS DEED WITNESSES as follows :
1.

Conveyance

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1.

That the properties which the above parties are desirous to partition without severing
their Hindu undivided family status are three houses in the city of Poona of equal
valuation more fully described in the Scheduled appended with this deed.

2.

That on the advice of the friends of the family the parties agreed to divide the said
property amicably in lots and with this object the said ON prepared four equal lots of
the said joint property and lots were accordingly drawn and the lots mentioned in the
First, Second, Third and Fourth Schedules were drawn by the said ON, SN, PN and
PM respectively.

3.

That in pursuance of the aforesaid agreement the parties hereby agree and declare
that the said ON, SN, PN, PM shall here in forth be separate owners of the properties
mentioned in the each of them shall hold and enjoy the property so allotted to him in
severalty and free and discharged from all claims and demands of the others thereto
or concerning therewith, and all other properties belonging to the Hindu undivided
family shall remain joint and intact as before as no partition of the Hindu undivided
family has taken place amongst the parties.

1.

Conveyance
It is agreed between the parties as follows :
i.

That there is no encumbrance or charge on the property hereby partitioned

and that if any encumbrance or charge is found to attach to any part of such
property, all the parties shall be liable for the same in proportion of their shares in
the joint property.
ii.

That the property hereby allotted to each party shall be entered upon and

henceforth held in severalty by such party without any interruption or disturbance

by the other party or any one claiming through, under or in trust for it.
iii.

That each party will at the cost of the person requiring the same do every

such act or thing or may reasonably be required for further or more perfectly
assuring the property hereby transferred by it to the other.
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iv.

That the said ON shall have the custody of the deed together with the
Schedules annexed thereto and will at the request and cost of the said parties
produce the same for inspection and will produce the same in evidence.

v.

That each of the parties hereto will at the request of the other produce for
inspection by the other and produce in evidence in legal proceedings any titledeed or document in his possession and in any way affecting the title of the party
requiring such production to the property hereby partitioned.

vi.

That whenever such interpretation would be necessary in order to give the

fullest scope and effect legally possible to any covenant or contract herein
contained the expressions, PN and PM hereinbefore used will include
respectively their heirs, successors, representatives and assigns.
2.

Value.-That the properties hereby partitioned are valued at Rs which have

been divided in three equal parts.

Name and address of

Area of the property

Market

value

of

the

property

property

IN WITNESS WHEREOF the said parties have set their hands to this deed of partial
partition on the day and year first above mentioned.
Witnesses :

(Sd)

1..

( First Party)

IN WITNESS WHEREOF the said parties have set their hands to this deed of partial partition on
the day and year first above mentioned.
1

Sd)..

(First Part)
2
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(Second Party)
3

Sd)..

(Third Party)

CONCLUDING REMARKS
Partial partition :- There is a presumption that every partition is a total partition. The burden of
proof that the partition is partial, or that there has been a prior partition is on the party who
asserts that it is so. On partial partition, the family does not cease to be joint family and the joint
business continues to be joint. It is open for parties to make partial partition. A partition is a
question of fact. A partial partition may be
(i) Partial as to property, or
(ii) Partial as to persons,
Partial as to property,The Privy Council in Romalinga v. Narayan, said that it is open to the
coparceners to sever their interest in respect of part of joint estate, while retaining their status of
a joint family in respect of the rest of the properties. As a general rule, no one can impose on
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others a partial partition. Similarly, no one can impose (except the father) a total partition on
others. Thus, if some coparceners want partition, while the others do not, those who want
partition may take away their share and the rest will continue to remain joint.
Sometimes a partition may be partial under compulsion of circumstances. Such will be the case
when properties are in several districts. A District Court is competent to effect partition only of
those properties which are within its jurisdiction.
Partial as to cop arcenerIf one coparcener or a group of coparceners want to separate, they
cannot impose separation on others inter Se. Nor is there any presumption in law to this effect.
No express agreement to remain joint on the part of the remaining coparceners is necessary. That
they remained joint may be inferred from conduct, such as the way they carried on their joint
business after the separation of the other coparceners. lb is 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
among the other coparceners or they remained joint, and the burden is on the party who asserts
the existance of a partcular state of things, on the basis of which lie claims the relief. Father has
power to effect a partial partition between himself and his minor sons.
Sec. 20A of the WT Act provides that if a partial partition takes place after 31st Dec., 1978,
among the members of an HUF, which was assessed till then as undivided, such family shall
continue to be liable to be assessed under the Act as if no such partial partition had taken place. It
is not necessary to go into the other provisions of that section for the purpose of this case. The
Explanation to that section reads that for the purposes of the section, partial partition shall have
the meaning assigned to it in cl. (b) of the Explanation to s. 171 of the IT Act. Sub-s. (9) of s. 171
of the IT Act contains a similar provision for the purpose of the IT Act. Under that sub-section
also, if a partial partition takes place after 31st Dec., 1978, among the members of an HUF,
which was assessed till then as undivided, such family would continue to be liable to be assessed
under the Act as if no such partial partition had taken place. Partial partition has been defined in
that section, as a partition, which is partial as regards the persons constituting the HUF, or the
properties belonging to the HUF, or both.

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The validity of s. 171(9) of the IT Act came up for consideration before a Division Bench of this
Court in M.V. Valliappan vs. ITO27 The Bench held that the section cannot be upheld on the
ground that it is a measure to counteract the tendency to tax avoidance and, consequently,
inasmuch as the income which does not belong to the HUF but in fact and in law belongs to a
member of the HUF, on a partial partition is brought to tax in the hands of the HUF, the provision
in the section necessarily suffers from legislative incompetence. The section is also held to be
void on the ground of violation of Art. 14 of the Constitution of India, inasmuch as it is vitiated
by discrimination and arbitrariness. The Bench said that the section entrenches upon the charging
provision in s. 4 of the IT Act and purports to bring to charge the income, which does not belong
to the HUF to be assessed in the hands of the family and, thus, the provision enlarges the scope
of ss. 4 and 5 of the said Act and is, therefore, invalid. It also said that the section has the effect
of fastening a penal liability on the HUF when in fact in the case of a partial partition, the
liability for concealment of income is that of the member of the HUF who earned the income in
his own right and not of the HUF and the provision of law, which has the effect of fastening such
a penal liability in respect of something over which the HUF has no control, cannot but be
construed as arbitrary. Ultimately, the Bench has said that the effect of the section is that it
virtually negatives the right of partition under the personal law only in certain cases of partition
after 31st Dec., 1978, and there is no valid basis or justification for treating HUFs separately in a
hostile manner with reference to the date 31st Dec., 1978, the choice of the date being clearly
arbitrary.

27 (1988) 67 CTR (Mad) 289 : (1988) 170 ITR 238 (Mad).

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BIBLIOGRAPHY
BOOKS
1) Agrawals Family Law in India, Kluwer Law International, 2010
2) Archana Parashar, Amita Dhanda, Redefining Family Law in India, Routledge, 29-Dec3)
4)
5)
6)
7)
8)

2008.
Werner Menski, Modern Indian Family Law, Curzon Press, 01-Jan-2001
G. C. Venkata Subbarao, Family law in India, C. Subbiah Chetty, 1979
Chibli Mallat, Jane Frances Connors, Islamic Family Law, BRILL, 1990
Articles on Indian Family Law, Hephaestus Books, 29-Aug-2011.
Dr.Paras Diwan, Family Law, Allahabad Law Agency: Faridabad, 2011
Kusum, Family Law Lectures - Family Law I, Lexis Nexis Butterworth: Nagpur, 2010

WEBSITES
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1) http://www.scribd.com/doc/79008504/Partition
2)http://advocatebharatchugh.wordpress.com/2012/10/13/concept-of-joint-hindufamilycoparcenorypartition-succession-under-hindu-succession-act/
3)http://taxguru.in/income-tax/partial-and-full-partition-of-hindu-undivided-family-huf-andincome-tax-provisions.html
4) http://www.advocatekhoj.com/library/agreements/partition/7.php
5)http://www.shareyouressays.com/117189/legal-provisions-regarding-partial-partition-of-jointfamily-property-under-hindu-law

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