The Rules Regarding Partial Partition

In a general partition, all family members separate and divide their joint family property among themselves. However, a partial partition occurs through mutual agreement, leaving some property undivided, typically when certain properties cannot be partitioned, such as leased or mortgaged ones.

Two types of partial partitions exist: partial as to property, where one property is partitioned while the other remains joint family property, and partial as to the person separating, where only certain members opt for partition while others remain joint.

Reunion after partition involves coparceners reuniting to form a joint family again, typically through an agreement expressing the intent to revert to their previous status. Valid reunions must involve parties from the original partition and cannot include new members. Reunion can be effectuated by intention or agreement, even if the partition was registered or oral, but minors cannot participate.

Partition can occur through various means: declaration by any coparcener, by the father's decision, through agreement, arbitration, notice, will, conversion, marriage under the Special Marriage Act, 1954, or by filing a suit for partition in court.

PARTITION UNDER HINDU LAW

In Hindu Undivided Families (HUFs), all members collectively own the assets, with individual shares fluctuating until a partition occurs. A general partition involves complete separation and division of HUF property among all members. Conversely, a partial partition occurs when only some assets are divided, often due to certain properties being ineligible for partition, like leased or mortgaged ones.

Partial partitions can manifest in two ways: partial as to property, where some assets are partitioned while others remain undivided, and partial as to the person separating, where only certain members opt for partition while others remain part of the HUF.

Reunion after partition involves coparceners reuniting, typically through an agreement to revert to their previous joint family status. Valid reunions must include original partition parties and cannot include new members. Partition can be initiated through various means, including declaration, father's decision, agreement, arbitration, notice, will, conversion, marriage under the Special Marriage Act, 1954, or filing a partition suit in court.

Under Income Tax Laws, there's no explicit provision for partial partition, though it's not recognized. In such cases, the income from transferred assets is still taxed under the HUF, even if beneficiaries enjoy it. Even with a full partition, one must request an order from the assessing officer acknowledging the partition.

After a full partition, income from transferred assets no longer falls under clubbing provisions for the transferring member, but it does for their spouse's share. Any coparcener, including sons and daughters, can request partition, with minors potentially represented in court if their interests are compromised. During a full HUF partition, all coparceners receive their respective shares, including daughters since the 2005 amendment. Even unborn children are entitled to shares, distributed per stripe and per capita among the coparceners.

For example, if Mr. A's HUF includes his wife W, sons B and C, and married daughter D, each would receive a 1/5 share upon partition. Sons B and C would further divide their shares equally among themselves and their children, resulting in 1/15 shares per individual, while the daughter's share remains separate property.

CUSTOMARY LAWS APPLICABLE

In terms of customary law, Hindu Law is primarily represented by two major schools: the Mitakshara school and the Dayabhaga school. Additionally, in South India, other systems such as Murumakkattayam, Aliyasantana, and Nambudri Systems are recognized. The Mitakshara school is widely followed across India, while the Dayabhaga school is predominantly found in West Bengal and Assam. Under the Mitakshara school, coparceners are entitled to a share of the property from birth, with partition possible at any time. Upon the death of the Karta, partition occurs according to the will or the Hindu Succession Act, 1956, if intestate. In contrast, the Dayabhaga school grants rights to the property only upon the death of the last owner, with no provision for partition during the Karta's lifetime.

Regarding statutory law, formal codified laws pertaining to partition include:

1. The Partition Act, 1893: Designed to address gaps in existing laws, enabling courts to allocate shares and, if necessary, authorize the sale of property for equitable distribution.

2. Indian Stamp Act, 1899: Imposes stamp duty on instruments or deeds formalizing HUF partition, recorded by court order, revenue authority, or arbitration award, with varying rates across states.

3. Indian Registration Act, 1908: Requires registration of family arrangements affecting property transfers, including partition deeds, with applicable stamp duty payment.

4. Civil Procedure Code, 1908: Governs partition disputes within regular civil court proceedings, including procedures for decree execution.

States may also have specific laws governing partition, such as:

- The Tamil Nadu Aliyasantana Act, 1949, which dealt with partition under the Aliyasantana system, subsequently overruled by the Hindu Succession Act, 1956.

- The Kerala Joint Hindu Family System (Abolition) Act, 1975, abolishing the joint family system and emphasizing individual property rights.

Partition of an HUF can be achieved through family settlements, the Hindu Succession Act provisions upon intestate death, civil suits, or arbitration awards. Formal documentation is necessary, with mere verbal declarations insufficient. Civil suits for partition follow standard legal proceedings, including legal notices, summonses, pleadings, evidence submission, arguments, and judgment and decree issuance, with execution proceedings to enforce decrees. Minor modifications apply to partition suits, with preliminary decrees issued before property division by a court-appointed commissioner. Ultimately, understanding HUF dynamics, rights, and legal procedures is essential for a smooth partition process.

CASE LAWS

1. In Moidin Kutti v. Mariamumma, AIR 1921 Mad 404, it was observed that- "If the property is not joint family property and the parties are not coparceners but only co-owners or tenants-in-common, the rule is not so rigid and partition partition may be allowed.
2. Gangu Bai v. Sadashiv Dhundiraj -  The Bombay High Court determined that the continuation of the joint family status with regard to the properties that remain intact is unaffected by a partial partition. This indicates that the undivided properties maintain their joint family character even following a partial partition.
3.  Ram Dulari v. Banke Lal -  The Allahabad High Court ruled in this case that, if a partial partition is lawfully carried out, it ends the family's joint status with regard to the divided properties. The united properties would nevertheless continue to have their unique character.

CONCLUSION

There are advantages and disadvantages for co-owners contemplating a partition action to divide property.

The drawbacks of such actions are fairly straightforward: they can be costly, time-consuming, and emotionally taxing. However, a partition action can effectively resolve a longstanding real estate dispute when co-owners cannot reach an agreement or certain parties are uncooperative.

On the positive side, a partition action offers the potential for co-owners to not only recover their legal expenses but also receive reimbursement for mortgage payments, taxes, insurance, repairs, renovations, and other property-related costs.

To commence a partition action, co-owners should engage the services of a lawyer once they have determined that it is the most suitable course of action.