Partition of property under hindu law
PARTITION OF PROPERTY UNDER HINDU LAW = =
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INTRODUCTION === ===
The Hindu personal laws govern the partition of property among Hindu family members as division of property is often a messy task. This process involves complex steps as it involves the division of, not just of family property but also, the property acquired by family members during their lifetime. Founded in ancient Hindu texts such as the Manusmriti, and also formulated by prevailing social norms, this personal law becomes applicable to all Hindus regardless of their caste or religion. The Hindu Succession Act 1956 lays down the rules and regulations for the division of property . Property that is inherited up to three generations in a Hindu Undivided Family is known as Ancestral Property. Prior to 2005, only male members of a family had the right to inheritance, but since the Amendment, equal inheritance rights have been given. This division is a partition of property of a Joint Hindu family so that separate conferment status may be awarded to undivided coparceners. Each co-heir has an equal share in the property and each reserves an inherent title in the property. More than one coparcener in a joint family, are some pre-requisites for partition of property.
MEANING === ===
It is also obvious that partition is only possible on property that is capable of being partitioned, i.e, does not belong to an individual member, or, is not part of the inheritance. Partition marks the end of the joint status of the HUF and property is divided amongst those who have ancestral rights over the property by virtue of their membership in the HUF. After partition the coparceners, including women after the 2005 amendment, become separate individuals and the HUF status is taken away. This partition is an intentional severing of coparcenary property by family members and this is done to gain individual rights to property that are more aligned with an individual’s personal interests. By making themselves the sole-owner of their share of the property, coparceners are able to enjoy full rights of an owner and can transfer property at their instance. Thus, partition is a combination of; deliverance of property shares, and acquisition of these shares by coparceners. The intentional separation of one member for their rights in the property does not automatically amount to division among the remaining members as it is not an interdependent relationship. This places intention at the heart of property division, and even disputes.
LAWS === ===
Property Partition Regulations govern the division of not just movable but also immovable property. The Indian Succession Act 1925 is the primary legislation that governs the partition of property. Eventually, several acts and personal laws were developed such as; the Muslim Personal Law Application Act of 1937, and the Indian Trusts Act of 1882. The HSA applies to Hindus, Buddhists, Jains and Sikhs, as well as any person who does not belong to Muslim, Christian, Parsi or Jew communities. Section 9 provides for partition of property among heirs of a deceased person with accordance to two classes; Class I consists of inheritance divided in equal shares, and Class II involves property inherited in unequal shares. The act also provides for the appointment of a Guardian to manage the property of the deceased person. Partition by mutual agreement is one of the options that is amicable as intention and consent of all members of the family is present. This common consensus to divide property among themselves avoids legal intervention. Partition by a court decree is the option available when the family members are unable to reach an agreement for inheritance division. Partition by Will of the deceased after their death according to their wishes is the third option. Partition may also be by the father who may exercise his right to affect the partition without the consent of the sons. Partition by a mutual decision of arbitration is also acceptable. Partition may also be a result of conversion as this marks separation from the HUF. Partition can be demanded by filing a suit in court as well. If a person marries under the Special Marriage Act 1954, they lose membership of the HUF. Since in partition, intention is the essential element, and this can be manifested by sending a registered notice to other coparceners, it is a valid form of stating interest in partition of property.
INTERPRETATION
The court plays an important role in these cases as it is the body responsible for ensuring a fair and just partition of property. Under this personal legislation, partition is governed by the Mitakshara school that emphasizes the principle that property of a Hindu joint family is indivisible. Thus, the consent of all family members is of utmost importance for partition. The court will determine the nature of the property and the rights of the parties involved and then decide how the division is to occur after considering the demands of each party. Additional points may include; contributions made by parties for the acquisition and maintenance of the property, financial needs of parties, age and health of parties, minors involved, wishes of the deceased, and any other factors that may affect the case. Section 6 of HSA does not govern self-acquired / coparcenary property as individuals only have an "interest" in such property, and thus, the "devolution of interest" is an important concept to get a share of this. According to Section 9 of the act, there are three rules; intestate of window shall take one share each, surviving sons and daughters and the mother shall take one share each, and heir in the branch of each pre-deceased son or daughter shall take one share between them. Further, a ‘cognate’ is any blood relative from the mother's side, while an ‘agnate’ is any blood relative from the father's side . Sections 15 and 16 mention the same / similar rules for women coparceners. A child in their mother’s womb at the time of the partition is treated equally and in case of unequal shares is entitled to reopen the partition after attaining majority. After valid adoption, the child becomes a member of the family and is entitled to the same share and is to be treated like a natural-born. If a coparcener has the right to give their interest, and such interest is bought by an ‘alienee’ via court / private sale, such person can demand shares as he is now in the shoes of a coparcener. Partial partition is an option when; not all family members have the intention to divide, lease or mortgage general partition of property is not possible, different parts of the property are situated in and out of India, joint ownership is with strangers who cannot be made subject to family partition, previous partition happened by mistake or fraud or some property has been missed out, etc .
CONCLUSION === ===
It is also undeniable important to refer to the following cases in order to form a good understanding of this legislation; Mrutunjay Mohapatra v. Prana Krushna Mohapatra, Prafulla Kumar Mohapatra v. Joy Kanta Krushna Mohapatra, Pachi Krishnamma v Kumaram, Danamma Suman Surpur and Anr v Amar and ors, and Bhagwan Dayal v Reoti Devi. Thus, partition of property under Hindu law is an intricate process that requires a detailed understanding of the legislations and regulations governing the same. Since the partition involved the end of HUF, it is also a socially and psychologically complex process. By hiring seasoned legal professionals, partition of property will become an easy process as the procedure is nuanced. HSA provides a reasonable amount of sufficient ways to lead to partition of property as it accommodates for almost all possible scenarios. This also means that court interpretations are very important and the need to amend the laws is constant.