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Introduction.................................................................................... 2
5) Partition By Arbitration............................................................. 6
6) Partition By Conduct...................................................................... 7
Bibliography.................................................................................. 10
Table Of Cases
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Introduction
1
Dr. Paras Diwan, Modern Hindu Law, 22nd ed., Allahabad Law Agency, New Delhi, 2012
2
Mulla, Hindu Law, 18th Ed., 2004, Lexis Nexis, Butterworths, New Delhi, 2006
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mode, it is necessary that intention to server must be communicated to
other coparceners. An uncommunicated expression of intention can
amount to a desire to partition, it cannot amount to severance. What is
essential is that the unequivocal communication of intention must be the
takes place from March 31. It was also held that the notice to the Karta
was enough.
Mode Of Partition
3
1931 Mad. 278.
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1) Partition By Suit
the partition suit were served with the summons and issues were settled,
one of the defendants died whereupon the plaintiff sought to withdraw
the suit, the Madras High Court said that a division of status had already
been brought about by the plaintiff and therefore it was not open to him
partition.
2) Partition By Agreement
The parties may effect a partition agreement. It has been observed
4
Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade, 2007 SC 218.
5
1949 Mad. 173.
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family to hold and enjoy the property in defined shares as separate
owners operates as a partition.6 But where joint family business was
converted in partnership business for income-tax purposes, it was held
that there was no severance of status. The motive behind the partition is
3) Oral Partition
There is a long line of cases holding the view that oral partition
can be validly made. Since partition is not conveyance of property, the
Transfer of Property Act does not apply and there is no other law
requiring a partition to be evidenced by writing. As early as 1846, the
6
Appovier v. Rama, (1866) MIA 75 at 90
7
Dr. B.K. Sharma, Hindu Law, Central Law Publication, Allahabad, 2008
8
Nani v. Gita, 1985 SC 706.
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Privy Council in Rewun Prasad v. Mst. Radha,9 said that it is undisputed
that a division of joint property might be effected without an instrument
in writing. Since then the courts have consistently taken this view. The
rationale behind the principle is that partition does not involve transfer of
4) Unilateral Declaration
consent of the other coparceners is not necessary. But this does not
mean that intention need not be communicated. The communication of
intention is necessary, whatever mode of partition one may use.11
5) Partition By Arbitration
9
(1856) 4 MIA 137.
10
Sarin v. Ajit, 1966 SC 432.
11
Raghavamma v. Chencamma, 1964 SC 136.
12
Dr. Paras Diwan, Modern Hindu Law, 22nd ed., Allahabad Law Agency, New Delhi, 2012
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A partition may be effected by arbitration. If members of joint
family enter into an agreement under which they appoint arbitrators for
dividing the joint family property among themselves, the severance of
status takes place from the date of the agreement. The mere fact that no
award directs partition, severance takes place from the date of the
award.13 If reference to arbitration is made by the guardian of a minor
coparcener, the award will be binding on the minor, only if it is for the
benefit of the minor. In Chandra Kant v. Balkrishna,14 the court passed a
6) Partition By Conduct
13
Shantilal v. Munsi Lal, 1932 Bom. 498.
14
1970 SC 1536.
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and expenditure, separate business transaction, and the like are
instances of conduct from which inference of severance may be drawn.15
metes and bounds means the physical division of joint family property.
After the severance of status takes place the interest of coparceners
becomes fixed and defined and after it they are co-owners and not
coparceners, they may continue to remain jointly or make de facto
division of the property i.e. by metes and bounds. The mere fact that
they carried on the business jointly is not material. After the severance of
status the Karta is bound to keep the accounts for all the receipts and
expenses. Every coparcener is entitled to be put in separate possession
15
Referred in Narada, XIII, 36-43.
16
Section 19 of Special Marriage Act, 1954
17
1982 Del. 520.
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of the properties giving him share by metes and bounds. It does not
mean that every item of the property is to be divided between co-
sharers. It is correct that the only requirement is that property allotted to
each co-sharer should bear approximately the same value as
member of a joint family at the time of effecting partition but for that
necessary adjustments have to be made. It can also happen that some of
the co-sharer on partition may not get any share in immovable property.
No hard and fast rule can be laid. It depends upon the facts of each case.
It depends upon the nature of the immovable property and number of
such properties as also the number of members to whom it is required
to be divided. Properties of a larger value may go to one member.
Property of lesser value may go to another. What is necessary however is
the adjustment of the value by providing for payment by one who gets
18
Dr. B.K. Sharma, Hindu Law, Central Law Publication, Allahabad, 2008
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Bibliography
http://en.wikipedia.org/wiki/Partition_Hindu_
Law_India_5371=6?8tx
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