In the Hindu society, there is a presumption that Hindu families are living in a state of union unless the contrary is established. Members of Hindu families are ordinarily joint and undivided in estate, food and worship. The concept of a Hindu Undivided Family (HUF) as understood today, is an integral feature of the Hindu society and is one that has evolved on the basis of customs. the ancient Schools of Hindu laws are believed to be of two types (1)Mitakshara School and (2) Dayabhaga School
Partition in hindu undivided family (HUF) is an act which are coparceners survives his relation with joint family and loses his status of coparcener and become an independent individual from the link of joint family. An important consequences of such partition is that the share of coparcener or coparceners seeking partition which is till partition uncertain, fluctuating and unpredictable, becomes specific and definite, as result of partition, and thus allotment of the respective members.
The existence of joint property is not a prerequisite for constituting a HUF. The concept of HUF is not related to possession of any property by the family. A HUF is a situation which is understood not with reference to the existence of a joint estate as an essential requisite.
A family that does not own any joint property may still have the character of a Hindu joint family. This jointness is understood in terms of faith and food. The reason is that a Hindu is born as a coparcener of the joint family. In the context of the situation, it would follow as a consequence that it is not necessary that at any point of time a HUF must have a connection with the ancestral property. The main requirement is the manifestation of jointness and the very basic foundation that a Hindu is born as a coparcener of the family.
According to the Supreme Court, a partition may be partial or total. Partition could be partial with respect to the members of a joint family or joint family property. When a partition takes place, the presumption is about the total partition.
But where some members contend that the partition was partial with respect to members or property, the onus is on them to prove it. A partition can be affected by the father even during his lifetime among his sons.
A partition could also take place by:
(i) agreement, (ii) institution of a suit to that effect, (iii) arbitration. It is not necessary for a partition that the joint family property is divided by every bit of it. The severance in the joint status could be brought about by any of the above modes and some property could be used by the coparceners as joint tenants.
Partition of Hindu Joint Family Properties
Both under mitakshara and dayabhaga school, every coparcener has a right to partition and is entitled to share.
Every coparcener has a right to partition except in case of
Under Bombay school, sons cannot ask for partition against their father if the later is attached with his own father or collateral.
Before the amendment of 2005, females couldn’t be the coparceners but some females like the mother, father’s wife and grandmother had the right to share at the time of partition.
Section 6 of the Hindu Succession Act, 1956, which deals with coparcener’s right in the HUF property, was amended in 2005 w.e.f September 9, 2005. With this amendment, daughters have been put at par with sons, as far as coparcenary rights in HUF property are concerned. Consequently, the daughter gets all the rights attached to coparcenary, including the right to ask for partition of the property and to become a Karta of the HUF.
However, only the daughters who are born in the family will get the coparcenary rights. Other female members, who come into the family by virtue of marriage, are still treated as members only. Thus, they are not entitled to ask for the partition but are entitled to maintenance and shares as and when partition takes place
It is only the coparcenary property which is subject to the partition. the separate property is not liable to partition at all, as it belongs absolutely to the owner thereof
Secondly, the property to which the law of Primogeniture applies, cannot be divided e.g family idols and place of worship can be divided similarly
In Mulla’s Hindu Law (17th Edn) Article 212(2), 213, it is stated :
“‘ 212. Joint Hindu family:– The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in the estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint.
Where there are joint estates, and the members of the family become separate in an estate, the family ceases to be joint. Mere severance in food and worship does not operate as a separation. Possession of joint family property is not a necessary requisite for the constitution of a joint Hindu family. Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family.
If you want me to write an article on any topic please comment below and visit my website http://mmkotwal.com/ for further details
Note:- We try our level best to avoid any kind of abusive content posted by users. Kindly report to us if you notice any, [email protected]