I[..4 D..]

JOINT FAMILY

Table of Contents

D) PARTITION

SHORT NOTES

Partition and reunion.

SYNOPSIS

I] PARTITION MEANS

II] RULES AS TO PARTITION

1) Subject matter of partition.

a) Dwelling house.
b) Family shrines, temples and idols
c) Staircases, wells etc.

2) Persons having rights and shares on partition.

3) Modes of partition.

i) By suit.
ii) By agreement.

iii) By arbitration.

iv) By Conduct.
v) By apostasy.

4) Rules relating to the allotment of shares.

(Partition by metes and bounds).

i) Division between father and son
ii) Division Between brothers.

iii) When division takes place among branches

iv) Doctrine of Representation.

Under Dayabhaga School.

I] PARTITION[1] MEANS:-

Partition means bringing the joint status of a family to an end. Partition is the intentional severance of a coparcener property by the joint family members. According to Hindu Law, the true test of partition of property is the intention of family members to become separate owners[2].

Under the Mitakshara School, a partition is “the adjustment into specific portions of diverse rights of different members accruing to the whole family property”. The coparcener’s share in the joint family property is defined and determined in the partition process. However, the actual division of property by metes and bounds[3] is not necessary.

Once the shares of the coparceners are defined either by an agreement or otherwise, the partition is deemed complete. Thus, their living together and enjoying the property in common as before does not alter the position of the partition already made. After determining their share, the property ceases to be joint property, even though parties still enjoy the property in common. The parties in the common possession of the partitioned property are called ‘tenants-in-common’[4].

Under Dayabhaga law, partition means property division by metes and bounds.

II] RULES AS TO PARTITION[5]:-

The topic of the partition is discussed under the following heads-

1) Subject matter of a Partition[6]:-

Generally, the entire joint family property is subject to a partition and not separate property. However, there are some properties which are not capable of division. Viz.-

a) Dwelling House[7]:-

The ancient view was that the dwelling house should not be partitioned. Recently, the court has tried to arrange without partition; however, if it was found that the arrangement was not possible, the court may order the sale of the house and allow the proceeds of the sale among coparceners. The woman (sister) was not allowed to ask for a share in her father’s or brother’s dwelling house; whoever she could now ask for its partition.

b) Family shrines, Temples and Idols[8]:-

Family shrines, temples, and idols constitute such species of joint family property that can neither be divided nor sold. The same is the case with other sentimental[9] and rare items.

c) Staircases, wells etc.[10]:-

Staircases, courtyards, wells, tanks, pasture lands, right of way, etc., are species of property which, by their nature, are incapable of division or sale.

2) Persons having the right to share on the partition[11]:-

The general rule under the Mitakshara and Dayabhaga schools is that every coparcener has a right to partition and is entitled to share. Even minors have the power to ask for a partition. No one other than the coparcener has the power to ask for partition. So far, the rule was that “no female was a coparcener and had no right of partition, but if partition takes place, some female members are entitled to a share in the property”. These females were widow, daughter, mother, pre-deceased son’s daughter and widow, pre-deceased daughter’s daughter, etc. However, now the daughter can file suit for partition.

3) Modes of Partition[12]:-

According to Hindu Law, the true test of partition of property is the intention of family members to become separate owners. The clear and unequivocal expression, by words or Conduct, of an intention for partition is necessary. The partition may be affected by any of the following modes.

i) By suit:-

The suit for partition clearly and unequivocally intimates the intention of the coparcener to sever from Joint Hindu Family and Property. Hence, the severance of status takes place from the date the suit is instituted.

ii) By Agreement[13]:-

Partition may be effected between the parties by an agreement.

iii) By Arbitration[14]:-

A claim for partition and an agreement appointing arbitrators[15] Dividing the property affects a severance of the joint status.

iv) By Conduct[16]:-

The severance of status may also take place by Conduct. Thus, separation in food, worship, dwelling, separate enjoyment[17] of the property, income and expenditure, business transactions[18] and the like are the instances[19] of conduct from which inference of severance may be drawn.

v) By Apostasy[20]:-

Conversion of a coparcener to a non-Hindu religion (e.g., Islam, Christianity, etc.) operates as an automatic severance of that member’s status from others. However, he is entitled to his share in the property by virtue of the Caste Disabilities Removal Act of 1850.

4) Rules relating to the allotment of Shares (Partition by metes and Bounds)[21]:-

Partition by metes and bounds means the physical division of joint family property. The shares are allotted to the coparcener in the partition by metes and bounds based on the following rules.-

i) Division between Father and Son[22]:-

When partition takes place (in Mitakshara School) between father and sons, the rule is that each son is equal to his father. For example, if A has three sons, B, C, and D, each will take ¼ shares in the joint family property.

ii) Division Between Brothers[23]:-

All brothers share equally in their joint family property. For example, if there are A, B, C, and D, each will take ¼.

iii) When division takes place among Branches[24]:-

When the coparcenary consists of several branches and the partition takes place among them, the rule is that each branch takes per stripe (i.e. according to the stock) as regards every other branch and the members of each branch take per capita (i.e. per head). For example, if a joint family consists of A and his three sons B, C and D. Two grandsons(from B) of BS and BS1, three grandsons (from C) CS, CS1, CS2 and one grandson (from D) DS. Firstly, the partition will occur between A and his three sons, B, C and D; each will get ¼ of the total joint property. Secondly, partition occurs between B, C and D and their sons. Since B has two sons, taking per capita B, BS, and BS1, each will get one-twelfth (i.e. ¼ of B will be equally partitioned between B, BS, and BS1). Since D has only one son, D and his son Ds will each get 1/8 share. Since C has three sons, his one-fourth will be divided into four shares (i.e. each will get 1/16 in joint family property).

iv) Doctrine of Representation[25]:-

Under the Mitakshara School, the coparcener’s interest is devoted to survivorship. However, if the deceased son leaves a male issue (son), that will represent the deceased in partition, and the rule of survivorship will not apply. Thus, if partition takes place in coparcenary wherein A is a father, B (son) died before partition, leaving BS his son and C (second son of A) died, leaving a daughter and widow, D (third son of A). In partition between them, the property will be divided between father and son in the first instance. A, a father, BS (will represent his father B by the rule of representation), and D, in the first instance, are entitled to an equal share, excluding C’s share since C has died without leaving any male issue. However, the amendment in the Hindu Succession Act in 2005 has made women also coparcener, and they cannot represent their fathers. Even a widow could only get her husband’s share by representation. In a true sense, by the amendment, the rule of survivorship is diluted greatly, and the traditional view is made applicable to both Mitakshara and Dayabhaga schools.

Under Dayabhaga School:-

Under Dayabhaga School, there cannot be a partition between father and son since there is no coparcenary between them. The second rule of partition between brothers is equally applicable in Dayabhaga School. However, a female can also represent the male members under the Dayabhaga School; in the above example, had C been governed by the Dayabhaga School, he would have been represented by his widow and daughter in the partition.

[VII] RE-OPENING OF PARTITION[26]

SHORT NOTES

Re-opening

SYNOPSIS

RE-OPENING MEANING
WHEN IT IS RE-OPENED

1) Fraud

2) Son in the womb .

3) Adopted Son.

4) Disqualified coparcener

5) Son conceived and born after partition

6) Absentee coparcener

7) In the interest of a minor

A] RE-OPENING MEANS:-

Manu says, “Once is the partition of inheritance made; once is a damsel (daughter) given in marriage; once does a man say, ‘I give’; these three are by good men done for once and irrevocable.”

B] WHEN IT IS REOPENED:-

Thus, from the above text, it seems that a partition, once made, is final and irrevocable and cannot be reopened. However, it can be reopened in the following circumstances.

1) Fraud[27]:-

When the whole property distribution system is found to be fraudulent, it may be set aside.

2) Son in Womb[28]:-

If a son is in the womb at the time of partition, and no share is reserved for him, he can get the partition re-opened.

3) Adopted Son[29]:-

A son adopted after the partition by the widow of the deceased coparcener is entitled to re-open the partition.

4) Disqualified coparcener:-

A disqualified coparcener, after his recovery, can reopen the partition as if a posthumous son (son born after the death of his father).

5) Son conceived and born after partition[30]:-

The father does not take a share in the partition, and the son borns[31] to him after the partition, and he is entitled to reopen the partition.

6) Absentee Coparcener[32]:-

If the coparcener is absent at the time of the partition (maybe due to unsoundness of mind, his absconding from home, etc.) and no share is allotted to him, he can reopen the partition.

7) In the interest of Minor[33]:-

If the partition is affected during a coarcener’s minority, he can get the partition reopened if he can show that it was unfair, prejudicial, or unjust.

VI] REUNION[34].

SYNOPSIS

A REUNION MEANS.

B REUNION HOW EFFECTED.

C EFFECTS OF REUNION.

A] REUNION MEANS:-

Reunion is the process by which two or more members of the Hindu family, after having become separate, reunite in such a way as to constitute a joint family. Brihaspati states, “He who being once separated dwells again, through affection with his father, brother, or paternal uncle is termed reunited”. In Mitakshara School, Benares and Dayabhaga Schools have taken this text literally and allowed reunion in relations mentioned in it. However, Bombay and Mithila Schools took a different view; according to the views, reunion can occur even in other relations than those mentioned above, e.g., a wife, a paternal grandfather, a brother’s grandson, a paternal uncle’s son and the rest. All schools agree that reunion is only possible for parties to the partition and nobody else.

B] REUNION HOW EFFECTED:-

To constitute reunion, the intention of the parties to reunite in estate and interest is essential. An agreement to reunite is necessary to revert to their former status. However, such an agreement may be oral or written. However, the fact that the separated parties are living together or trading together after the partition is insufficient to call it a reunion. A minor cannot enter into an agreement of reunion; however, his father or mother can very well agree to a reunion on behalf of the minor[35].

C] EFFECTS OF REUNION:-

The question in case of reunion is whether, after the reunion, parties are restored to their original status, or they are mere ‘tenants in common’, and the severance of status continues?. However, it is now well established under Mitakshara and Dayabhaga Schools that after the reunion, parties’ status is established as if they had not separated (i.e. status quo ante-status as before partition)[36].

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NOTE

FATHER’S DEBTS AND PIOUS OBLIGATION OF SON[37]

QUESTION BANK

Q.1. Explain in detail the doctrine of pious obligations.

SHORT NOTES

Pious obligation.

SYNOPSIS

I] INTRODUCTION

II] ESSENTIALS OF THE SON’S PIOUS OBLIGATION

1) When liability arises.

2) Persons under obligation.

3) What property is bound?

4) Nature of debt.

i) The debt must not be ‘avyavaharika’.
ii) The should be an antecedent.

I] INTRODUCTION:-

Debt occupies an important place in the Hindu system of law. The Hindu scriptures[38] provide that “if the Hindu dies indebted[39], his sons must repay his debts”. This is considered a son’s religious or pious duty to discharge his father from the sin of his debts. The term ‘son’ here includes even sons son and son’s son’s son.

Thus, if a person incurring the debt (in a joint family) is the father, even though there is no legal necessity or legal benefit to the estate (of the joint family), his sons would be bound, and their coparcenary interest is liable to creditors. Even the father himself may alienate the coparcenary property of his and his sons for discharge of antecedent debt incurred by him, even though such debt may not have been incurred for any legal necessity or benefit of the joint family. In other words, the father’s right is called a father’s privilege to alienate joint family property for his personal use. However, the debt incurred should not be ‘avyavaharika debt’ (i.e. the debt incurred for immoral or illegal purposes).

This doctrine of pious obligation to pay a debt is also applicable to Thiyyas of Calicut (Kerala), even though there exists the custom of Polyandry (one wife and more than one husband), and the identity of the father cannot be established. However, the doctrine of pious obligation is not recognised under the Dayabhaga School.

II] ESSENTIALS OF THE SON’S PIOUS OBLIGATION[40]:-

The following essentials must exist to hold the son liable for his father’s debts under the doctrine of ‘pious obligation.

1) When liability Arises[41]:-

According to ancient law, it is only upon the father’s death that the son’s liability to pay his father’s debt arises. But present case law shows that it may even arise in the lifetime of the father14.

2) Persons under Obligation[42]:-

The son, grandson, and great-grandson are all bound to the debt and must pay interest on it.

3) What property is Bound[43]?

Under the old custom, the pious obligation existed independently of property. Instead, it was a personal liability, i.e. to be paid from his self-acquired property. However, it has been held that the son’s interest in coparcenary property can become liable and not his self-acquired property to discharge the pious obligation.

4) Nature of Debt[44]:-

As to the nature of the debt to be discharged under pious obligation, the following conditions are necessary.

i) The debt must not be ‘Avyavaharika’[45]:-

The ‘avyavaharika’ debt is the debt incurred by the father for illegal or immoral purposes. Hence, if the debt is ‘avayavaharika’, no liability of the son under the doctrine of ‘pious obligation’ arises.

Following are some of the instances of ‘avayavaharika’ debts.

(a) For the payment of damages awarded against him for malicious prosecution[46].

(b) To pay the fine imposed as a result of a criminal trial[47].

(d) Debt due for spirituous liquor[49].

(d) Debts due for gambling[51].

(e) Unpaid fines, unpaid tolls etc[52].

ii) The Debt should be Antecedent[53]:-

Antecedent debt is the debt incurred prior to the alienation of property (mortgage, lease, etc.). The debt to be antecedent must be taken prior (in time and fact) to the transaction of alienation of property (i.e. mortgage of property). In other words, antecedent debt means a debt antecedent in fact as well as in time to the alienation in question. But if the debt is not prior (i.e., at the time of alienation or afterwards), it cannot be called antecedent debt; therefore, the son cannot be held liable for that. In other words, the father must have taken a prior loan and failed to pay it; he has alienated (or prepared to alienate) joint family property; all coparceners are bound by such alienation.

Illustration

(i) If the debt is taken on 1.1.72 and properties are alienated on 1.6.72, the debt is prior in time, and, therefore, alienation is binding on all coparceners.

(ii) On 31-05-71, F and ‘A (an alienee) reached an agreement or understanding that on 1.6.71, A would give F a loan of Rs 10,000/- and on 1.7.72 (i.e. after one year), F will alienate joint family house to A. A pays Rs. 10,000/- to F on the agreed date, and F also alienates the house on the agreed date. In this case, though the debt is prior in time, it is not prior in fact, being part and parcel of the same transaction entered into on 31.5.71. Debt to S as an antecedent must stand independently of the alienation prior to it.

In Brij Narain V/s Mangal Prasad[54]

Facts:– S and his two minor sons constituted a Mitakshara joint Hindu family. S executed a mortgage on C to pay off his two prior debts (taken from A and B). C was seeking permission from the court to sell the property. Two sons of S defended the claim that the mortgage and (would-be sale order) are not binding on them.

Held: The mortgage to C (and its sale order) is binding on the joint family property since the mortgage was made to pay off the antecedent debt due to A and B. In this case, the first debt from A and B and the mortgage to C are disassociated in time and fact since the debt from A and B was the antecedent debt to pay off, for which the subsequent mortgage was made.

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[1] मालमत्तेचे वाटप [विभाजन]

[2] It was held in Approver v. Ram Subha (11 MIL 75)

[3] Partition by metes and bounds means the physical division of joint family property. ljl&fujl ekukus okVi

[4] Balkrishen Das v. Ram Narain (1930 Cal. 738).

[5] वाटपाचे नियम [विभाजन के नियम]

[6] वाटप विषय [एक विभाजन का विषय]

[7] राहते घर [आवासगृह]

[8] समाधी, मंदिरे आणि देव [पारिवारिक मंदिर, मंदिर और मूर्तियाँ]

[9] भावनिक

[10] जिना, विहरी इ. [सीढ़ियाँ, कुएँ आदि]

[11] व्यक्ती की ज्यांना वाटपात हिस्सा व अधिकार असतो. [विभाजन पर अधिकार और हिस्सा रखने वाले व्यक्ति]

[12] वाटप मार्ग/माध्यम [विभाजन के तरीके]

[13] करार करुन [अनुबंध के अनुसार]

[14] मध्यस्थामार्फत [मध्यस्थता द्वारा]

[15] मध्यस्थ

[16] वर्तनाव्दारे

[17] स्वयंपाक, पूजाअर्चा, राहणे, स्वतंत्र उपभोग घेणेs

[18] स्वतंत्र उत्पन्न व खर्च, स्वतंत्र व्यवसायिक व्यवहार

[19] उदाहरणे

[20] धर्मांतर

[21] सरस-निरस मिळकतीचे वाटप

[22] वडिल-मुलगा यांचेत वाटप

[23] भावांमध्ये वाटप

[24] शाखा मध्ये वाटप

[25] प्रतिनिधीत्वाचे तत्व

[26] पुर्नवाटप करणेs

[27] फसवणूक

[28] आईच्या उदरातील मूल

[29] मुलगा दत्तक

[30] वाटपानंतर मुलाचा जन्म झाल्यास

[31] होणे

[32] हिस्सेदार

[33] लहान मुलाच्या हितासाठी

[34] पुन्हा एकत्र येणे

[35] Babu v. Govinddass AIR 1952 Mad. 1064.

[36] Kristraya v. Venkatromaiah, (1909)

[37] वडिलांचे कर्ज मुलाचे धार्मिक, पवित्र कर्तव्य

[38] धर्मग्रंथ

[39] कर्जबाजारी

[40] मुलाला वडिलांच्या कर्जासाठी जबाबदार धरण्यासाठी आवष्यक गोस्ष्टी

[41] जबाबदारी कधी निर्माण होते

14 Brij v. Mangal Prasad (46 All 951 (PC))

[42] कोण-कोण कर्जासाठी जबाबदार

[43] कोणत्या मालमत्तेतून कर्जफेड

[44] कर्जाचे स्वरुप

[45] बेकायदेषिर व अनैतिक कारणासाठी

[46] एखादयास दृश्ट हेतूने खटल्यात गोतल्याबद्दल झालेली नुकसान भरपाईची आज्ञा

[47] कोर्टाने खटल्यात केलेला दंड

[48] कोणत्याही कारणासाठी लाच देणे

[49] अमली पदार्थ-दारुसाठी काढलेले कर्ज

[50] कोणत्याही हव्यासाठी/व्यभिचारासाठी झालेले कर्ज

[51] जुगारातून झालेले कर्ज

[52] थकित, दंड, टोल इ.

[53] पूर्वीचे कर्ज

[54] (51 I.A 129).

JOINT FAMILY

D) PARTITION