Partition
ajay kumar mishra
(Querist) 19 September 2011
This query is : Resolved
may grand son ask for partition from the ancestral property from his father and gran father when both are alive ?
R.Ramachandran
(Expert) 19 September 2011
If he is a major coparcener, and of a sound mind, yes, he can ask for partition at any point of time. It is one of his inherent rights. He does not have to give any reason or explanation or justification for seeking partition. When such a demand for partition is made, the other coparcenars have no choice but to comply with his demand. The presence of the grand father or father will not be a bar for making such a demand. If the partition is not done as demanded, he will approach the court of law for partition.
Any such demand, in order to bring a severance of status, must comprise three essentials viz.,
(1) formation of an intention to separate from the joint family;
(2) a declaration of this intention; and
(3) communication of this intention to the Karta and if he is unavailable, to other coparcenars.
Once the demand is made and the above ingredients are complied with, the severane of status will take place. the actual shares can be worked out at a later stage, but as far as the status is concerned, that is demarcated immediately and from an undivided coparcener, he will take the label of a separate member. Once such a communication is received, no alienation of the coparcenary property can take place to the detriment of the said coparcenar.
prabhakar singh
(Expert) 19 September 2011
yes you can,i am in complete agreement of Mr.Ramachandran view.
Raj Kumar Makkad
(Expert) 19 September 2011
Can you please provide case law in support of your opinion Ramachandran ji?
I am asking this question because the provision seeking partition of coparcenary properties in Mitakshra and Dayabhaga sect under Hindu Law are different.
R.Ramachandran
(Expert) 20 September 2011
Dear Mr. Makkad,
I fully agree with you that the rules are different for Mitakshara and Dayabhaga. The main difference, while in Mitakshara a male born in the family has a right in the coparcenary property, in Dayabhaga the son has no right by birth.
That is why, a son does not hava a right to ask for any partition from his father.
As regards the case laws to support the view that a coparcenar can demand partition: D. Tuklya v. Shivagya AIR 1973 Mys. 4; Digambar v. Dhanraj AIR 1922 Pat. 96.
prabhakar singh
(Expert) 20 September 2011
I further agree with expert Ramachandran,the two schools are quite different,it does not demand any case law.Dayabhagains do not recognize concept of coparcenary,the grand son there has only chance of succession.Succession there devolves from father to son and at each stage the sharers right are absolute against his heirs.
ajay kumar mishra
(Querist) 22 September 2011
Dear Mr.Ramachandran,
In spite of your useful reply I am still confuse on the point that is there any deviation in context to my question after codified Hindu succession act 1956 ? please clarify section 4 of Hindu succession act 1956 . is the ancestral property be inherited as per codified law or previously uncodified law.
R.Ramachandran
(Expert) 22 September 2011
According to Sec. 4 of the HSA, 1956, (a) any text, rule or interpretation of Hindu law or any custom orusage as part of that law in force immediately before the commencementof the HSA Act, 1956 shall cease to have effect WITH RESPECT FO ANY MATTER FOR WHICH PROVISION IS MADE in the HSA Act, 1956.
Even after coming into force of HSA 1956, the law relating to a Hindu Joint Family remains unaffected except to the extent covered by Section proviso and Section 30 of the Act.
Therefore, a major coparcenar in a joint hindu family, with a sound mind, can demand partition at any point of time. The presence of his father or his grand father will not come in his way of demanding such a partition.
If you have any other view please feel free to come back.
In the alternative, please indicate which provision of the HSA 1956 contains any provision regarding partition of Joint Hindu Family property. If such a provisionis there in HSA 1956, and if any of the provisions of the classical Hindu Law is inconsistent with such a provision, then and then alone the inconsistent Classical Hindu Law provision will stand abrogated by virtue of Section 4 of the HSA, 1956 and not otherwise.
