Legal Provisions Regarding Partial Partition under Hindu Law – Explained!

Under Hindu Law partition may be either total or partial. A partial partition may be (i) as regards persons who are members of the family or (ii) as regards properties which belongs to it. Where there has been a partition, it is presumed that it was a total one both as to the parties and property but when there is a parti­tion between brothers, there is no presumption that there has been partition between one of them and his descendants.

It is; however, open to a party who alleges that the partition has been partial either as to persons or as to property, to establish it. The decision on that question depends on proof of what the parties intended- whether they intended to partition to be partial either as to per­sons or as to properties or as to both.

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When there is partial parti­tion as to property, the family ceases to be undivided as regards properties in respect of which such partition has taken place but continues to be undivided with regard to the remaining family property.

After such partial partition the right of inheritance and alienation differ according as to property in question belongs to the members in their divided or undivided capacity. Partition can be brought about (1) by a father during his lifetime between himself and his sons by dividing equally amongst them, (2) by agreement or (3) by a suit or arbitration”. (Kalloomal Tapeswari Prasad v. Commr of Income Tax, A.I.R. 1982 SC 760).

In case of partial partition in respect of property, a part of the property is partitioned and the rest is held joint by the members without any intention of giving up their status as members of the joint family and holding the undivided property as joint tenants.

In respect of divided property the rule of survivorship will not apply but in respect of undivided property the rule of survivorship will apply. If the partial partition of property is by way of more convenience then the rule of survivorship will apply in respect of the whole property. Once partition is proved or admitted the pre­sumption is that the whole property was divided and nothing was left joint.

When father can bring about a complete partition of joint family properties between himself and his minor sons even against the will of the minor sons and when partial partition under the Hindu Law is now accepted, it cannot be said that the father who can bring about a complete partition of the joint family properties between himself and his minor sons will not be entitled to effect a partial partition of joint family properties between himself and his minor sons, if the father in the interest of the joint family and its members feels that partial partition of the properties will be in the best interest of the joint family and its members including-the minor sons.

If the father does not act bona fide in the matter when he affects partition of joint family properties between himself and his minor sons, whether wholly or partially, the sons on attaining majority may challenge the partition and ask for appropriate re­liefs including a proper partition.

In appropriate cases even during minority, the minor sons through a proper guardian may impeach the validity of the partition brought about by the father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their interests. [Apoorva Shantilal Shah v. l.T. Commr. A.I.R. 1983 SC 409).

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