Partition of HUF
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Hindu Undivided Family
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The Mitakshara School of Hindu Law
holds sovereign sway in the whole of India, except Bengal. Under
Mitakshara School of Law, the joint and undivided family is the
normal condition of Hindu Society. An undivided Hindu Family is
ordinarily joint in estate, food and worship.
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A joint Hindu family consists of all
persons lineally descended from a common ancestor and includes
their wives and unmarried daughters. A member of a joint family
in Mitakshara School of Law, acquires by birth, an interest in
the joint family property. A joint undivided family is a much
wider body than a Hindu co-parcenary.
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Coparcenary
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The Hindu coparcenary consists only
of those persons, who acquire by birth, an interest in the joint
or coparcenary property. These are sons, grand sons and great
grand sons of the holder of the joint property; (for Maharashtra,
please see para 2.3) for the time being. The holder of the joint
property is the common male ancestor, with the lineal
descendants in the male line, within four degrees, counting from
and inclusive of such ancestor.
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No coparcenary can commence without a
common male ancestor, though after his death, it may consist of
collaterals such as brothers, uncles, nephews, etc. A
coparcenary is purely a creature of law. No female can be a
coparcener (other than in Maharashtra). She can only be a member
of a joint Hindu family. The unity of ownership is the essence
of coparcenary. The ownership is in the whole body of
coparcenary. Every coparcener has a joint interest and joint
possession. A male issue of a coparcenary acquires interest in
the coparcener by birth.
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The Hindu Succession (Maharashtra
Amendment) Act, 1994 has the effect of amending the
applicability of the Hindu Succession Act, 1956 to the persons
residing in the State of Maharashtra. The amendment has come
into effect from 22-06-1994 and its application is restricted to
the State of Maharashtra. After the amendment a daughter is put
on at equal footing as that of a son and she will be a co-parcener
and would enjoy all rights of a member coparcener and would
suffer from all disabilities similar to those suffered by a son.
The amendment however would not apply to those daughters who
have married before the date of 22-06-1994.
Property of a Joint Family
The joint family property consists of the
following :—
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Ancestral property;
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Separate property of copareners
thrown into common stock;
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Property acquired with the aid of
ancestral property.
Ancestral property is the property
inherited by a Hindu from his father, grand father and great
grand father.
Partition
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A partition severs the joint status
of a Hindu family. Severance of joint estate is essential to
constitute a partition. Mere severance of food and worship, does
not operate as a separation.
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It is not necessary that the division
of the joint family properties should be by metes and bounds.
What is essential is to ensure that the severance of the joint
status was a matter of individual decision. There should be a
definite and unequivocal indication of the intention on the part
of a coparcerner to put an end of his status as a coparcener and
acquire a new status of a separate owner and enjoy his share in
severalty. The assent of other members of the family is not
essential.
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An agreement between the members of a
joint family to hold and enjoy the property in defined shares,
as separate owners, operates as partition, although there may
not be any actual division of the properties by metes and
bounds.
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An agreement to separate need not be
in writing. But if there is a writing, which itself effects a
division, the writing will be liable to be registered in
accordance with the provisions of the Indian Registration Act.
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It is only the coparcenary property,
which is liable to be partitioned.
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Before the joint properties are
actually divided, the provisions must be made for the joint
family debts, the maintenance of dependent female members, the
marriage expenses of unmarried daughters and diverse other
liabilities of the joint family.
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Where there are several branches of
the family, every branch of the family takes its share by
stripes; i.e., according to the stock, as regards every other
branch. But the members of every branch take per capita as
regards each other.
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A partition between coparceners may
be partial either in respect of the property or in respect of
the person or in respect of both. When there is a partial
partition, it is open to the members of the family to retain
their status as members of the joint undivided family and hold
the rest of the properties jointly.
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Where joint status of the family is
severed, the partition is total, even though some property may
have remained undivided.
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In case of partition between the co-parceners,
any one or more coparceners may remain joint with their own
descendants. This will form an undivided joint Hindu family
amongst them.
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Every coparcener, entitled to a
share on partition, is entitled to claim a portion, except in
Mumbai, where it is not open to a son to demand partition if his
father is joint with his other coparceners.
Specimen
Partition Deed
This Deed of Partition made at Mumbai this
———— day of ————— 2005—— between (1) Shri A ————————————— of
Mumbai, Indian Inhabitant, the party of the first part, (2) Shri
B ———————— of Mumbai, Indian Inhabitant, the party of the Second
Part, and (3) Shri C ———————— of Mumbai, Indian Inhabitant the
party of the Third Part.
Whereas the parties hereto are members of a
joint and undivided Hindu family and are joint in food, worship
and estate.
And Whereas the party of the First Part is
the Manager and Karta of the said joint and undivided Hindu
family.
And Whereas the party of the Second Part and
the party of the Third Part are the sons of the party of the
First Part.
And Whereas Smt. D ———————————— is the wife
of the party of the First Part.
And Whereas Miss E ———————————— is the
daughter of the party of the First Part.
And Whereas the parties hereto are
coparceners in the said joint undivided Hindu family.
And Whereas the parties hereto hold the
properties of the said joint and undivided Hindu family as
coparcenary properties.
And Whereas the parties hereto, have, by
mutual agreement amongst themselves, agreed to separate in food,
worship and estate.
And Whereas the parties hereto, have, by
mutual agreement amongst themselves, agreed to partition the
coparcenary properties held by them as members of the said joint
and undivided Hindu family.
And Whereas Smt. D. ——————————— being the
wife of the party of the 1st part and the mother of the parties
of 2nd and 3rd part, is entitled to a share equal to the share
of every one of the parties hereto.
And Whereas the said Miss E —————————— being
the minor unmarried daughter of Shri A, the party of the First
Part, is entitled to have her maintenance, upkeep and education
from the said coparcenary properties, during the period of her
minority.
And Whereas the said Miss E —————————— is
also entitled to have her marriage expenses incurred out of the
said coparcenary properties.
And Whereas it is agreed by and between the
parties hereto that a sum of Rs. ——— be set apart for the
maintenance, upkeep and education of the said Miss E
———————————.
And Whereas it is agreed by and between the
parties hereto that a sum of Rs. ————— be set apart for the
marriage expenses of the said Miss E —————————————.
Now This Deed Witnesseth That
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The parties hereto declare that they,
as coparceners of the said joint undivided Hindu family are
joint and absolute owners of and are well and sufficiently
entitled to and are in possession of the immovable
properties set out in part I of the Schedule I hereto and
also of the movable properties set out in part II of the
Schedule I hereto.
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Out of the amount set out in part II
of Schedule I, a sum of Rs. ———— is hereby set apart for the
maintenance, upkeep and education of the said Miss E
———————————— for the period of her minority, which will
expire on ——————————.
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Out of the said part II of Schedule I,
a further sum of Rs. ————— is set apart for the marriage
expenses of the said Miss E.
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The said two sums of Rs. ————— and Rs.
—————, the aggregate amount being
Rs. ————, have been handed over to Shri A ———————————— the
party of the First part hereto, as father and natural
guardian of the said Miss E ————————————. The said Shri A
———————————— the party of the First part hereby admits the
receipt of the said two sums in his capacity as father and
natural guardian of the said Miss E ————.
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Shri A —————————— the party of the
First Part, hereby declares that he shall hold the said two
sums of Rs. —————— and Rs. —————— as Trustee for the benefit
of the said Miss E ———————————.
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Shri A ————————————, the party of the
First part hereby further declares that he shall invest the
said sums of Rs. ————— in appropriate securities and spend
the income therefrom for the maintenance, upkeep, and
education of Miss E ——————— during the period of the
minority of the said Miss E ——————————.
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The said Shri A ——————————— the party
of the First Part hereby declares that he shall invest the
said sum of Rs. ————— in appropriate securities and the
income from the same shall be accumulated until six months
prior to the date that may be fixed for the marriage of the
said Miss E —————————. The party of the First part, further
declares that he shall utilise the said sum of Rs. ———
together with the accumulations, accrued thereto, for the
marriage of the said Miss E ————————.
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The parties hereto hereby put an end
to their joint undivided Hindu family status and separate
themselves from one another in food, worship and estate.
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The parties of the First, Second and
Third parts hereby partition, divide and distribute the
immovable and moveable properties set out in part I and part
II respectively of Schedule I hereto.
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By mutual agreement amongst the
parties of the First, Second and Third parts, the immovable
properties allotted to Shri A ————————— the party of the
First part, by way of his share in the said coparcenary and
joint properties are set out in Schedule II hereto.
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By mutual agreement amongst the
parties of the First, Second and Third parts the immovable
properties allotted to Shri B —————————— the party of the
Second part, by way of his share in the said coparcenary and
joint properties are set out in Schedule III hereto.
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By mutual agreement amongst the
parties of the First, Second and Third parts, the immovable
properties allotted to Shri C ——————— the party of the third
part, by way of his share in the said coparcenary and joint
properties are set out in Schedule IV hereto.
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By mutual agreement amongst the
parties hereto, the movable properties allotted to
Shri A ————————————— by way of his share in the said
coparcenary and joint properties, are set out in Schedule V
hereto.
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By mutual agreement amongst the
parties hereto, the movable properties allotted to
Shri B—————————— by way of his share in the said coparcenary
and joint properties are set out in Schedule VI hereto.
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By mutual agreement amongst the
parties hereto, the movable, properties allotted to Shri C
————————————— by way of his share in the said coparcenary
and joint properties, are set out in Schedule VII hereto.
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By mutual agreement amongst the
parties hereto, the immovable properties and the movable
properties allotted to Smt. D ——————— the wife of A and the
mother of Shri B ——————— and Shri C ———————————— by way of
her share in the said coparcenary and joint properties are
set out in part I and part II respectively of Schedule VIII
hereto.
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The parties hereto declare that the
possession of the properties, both movable and immovable,
allotted to each of the said Shri A ——————————, Shri B
——————————, Shri C ————————— and Smt. D —————————
respectively, has been handed over to the said Shri A
———————————— Shri B ———————————— Shri C ——————————— and Shri
D —————————— respectively.
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The parties hereto declare that the
said Shri A ————————————, Shri B ——————————, Shri C
—————————————— the parties of the First, Second and Third
parts respectively and the said Smt D ———————————— are
hereafter the full and absolute owners of the properties,
both moveables and immovables, allotted to each one of them
respectively by way of their share in the said coparcenary
and joint properties, along with all the easements, profits
and appurtenances hereto. And the parties hereto have no
claim, right, title or interest whatsoever in the
properties, both movables and immovables, not allotted to
them but allotted to other or others of them and allotted to
the said Smt. D. ————————————.
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The parties hereto and the said Smt.
D ———————————— shall be entitled to Have and To Hold the
properties allotted to them respectively, subject to the
payment of all rents, taxes and duties becoming chargeable
hereafter.
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The parties hereto and the said Smt.
D ———————— shall be entitled to peacefully and quietly enter
upon, occupy, possess and enjoy the said properties allotted
to each one of them respectively and receive the rents and
profits thereof to their own use and benefit.
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The parties hereto and each one of
them doth hereby release the others or other of them from
all claims whatever in respect of the properties allotted to
the other or others of them as stated hereinabove.
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The parties of the First, Second and
Third parts hereby agree to sign and execute all deeds and
documents, which may reasonably, be required for the
effectual realisation of these presents.
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The parties hereto shall do, perform
and execute all such further acts, things and deeds as may
be reasonably necessary for the more effectual enjoyment of
the property respectively received by the parties hereto as
aforesaid.
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The parties hereto declare that the
market value of the properties allotted to each one of them
is Rs. ———— for the purposes of stamp duty.
In Witness Whereof The Parties Have Put Their
Hands The Day And The Year Hereinabove Written.
Schedule - I
Part I
List of immovable properties belonging to the
Coparcenary consisting of the parties of the First, Second and
Third part.
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——————
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Part II
List of movable properties belonging to the
Coparcenary consisting of the parties of the First, Second and
Third part.
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——————
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Schedule - II
List of the immovable properties allotted to
Shri A ———————— the party of the First part.
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——————
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Schedule - III
List of the immovable properties allotted to
Shri B ————————— the party of the First part.
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——————
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Schedule - IV
List of the immovable properties allotted to
Shri C —————————— the party of the Second part.
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——————
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Schedule - V
List of the movable properties allotted to
Shri A —————— the party of the First part.
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————
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Schedule VI
List of the movable properties allotted to
Shri B ———————— the party of the Second part.
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—————
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Schedule - VII
List of the movable properties allotted to
Shri C ———— the party of the Third part.
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Schedule - VIII
Part I
List of immovable properties allotted Smt. D
———————
Part II
List of the moveable properties allotted to
Smt. D ——————
Signed and Delivered by the withinnamed party
of the First Part in the presence of
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—————
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Signed and Delivered by the withinnamed party
of the Third Part in the presence of
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—————
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Signed and Confirmed by Smt. D in so far this
deed relates to her in the presence of
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Specimen
Partial Partition Deed
This Partial Deed of Partition made at Mumbai
this —————— day of ————— 200— between (1) Shri A ———————— of
Mumbai, Indian Inhabitant, the party of the First part, (2) Shri
B ———————— of Mumbai, Indian Inhabitant, the party of the Second
Part and (3) Shri C —————————— of Mumbai, Indian Inhabitant, the
party of the Third Part.
Whereas the parties hereto are members of a
joint and undivided Hindu family and are joint in food, worship
and estate.
And Whereas the party of the First Part is
the Manager and Karta of the said joint and undivided Hindu
family.
And Whereas the party of the Second Part and
the party of the Third Part are the sons of the party of the
First part.
And Whereas Smt. D. ——————— is the wife of
the party of the First Part.
And Whereas Miss E ———————— is the daughter
of the party of the First Part.
And Whereas the parties hereto are
coparceners in the said joint and undivided Hindu family as
coparcenary properties.
And Whereas Shri C ——————, the party of the
Third Part has expressed his desire to separate himself from the
said joint and undivided Hindu family.
And Whereas the parties hereto, have, by
mutual agreement amongst themselves, agreed that the said Shri C
——————— may separate in food, worship and estate, from the said
Joint and undivided Hindu family.
And Whereas the parties hereto, have, by
mutual agreement amongst themselves, agreed that the said Shri C
—————————— be allotted properties, both immovable and movable,
coming to his share, after taking into account the debts and
liabilities of the said joint and Undivided Hindu Family and
after taking into account the rights of the said Smt. D ————————
and Miss E ——————— in respect of the joint family properties.
Now This Deed Witnesseth That
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The parties hereto declare that they,
as coparceners of the said joint undivided Hindu family are
joint and absolute owners of and are well and sufficiently
entitled to and are in possession of certain properties,
both moveables and immovables.
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The parties hereto hereby declare that
the said Shri C —————————, the party of the Third part has
separated in food, worship and estate from the said Joint
Undivided Hindu Family and is no longer a member of the said
Joint and Undivided Hindu Family.
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By mutual agreement amongst the
parties of the First, Second and Third Parts, the immovable
properties allotted to Shri C by way of his share in the
said Coparcenary and joint properties are set out in part I
of the Schedule hereto.
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By mutual agreement amongst the
parties hereto, the movable properties allotted to
Shri C ————————— by way of his share in the said Coparcenary
and joint properties, are set out in part II of the Schedule
hereto.
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The parties hereto declare that the
possession of the properties, both movables and immovables,
allotted to Shri C —————— are handed over to the said Shri C
—————— who declares that he has received the possession of
the said properties, both movables and immovables, mentioned
in the Schedule hereto.
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The parties hereto declare that the
said Shri C ——————— the party of the Third part will
hereafter be the full and absolute owner of the said
properties, both movables and immovables, allotted to him by
way of his share in the said Coparcenary and joint
properties, along with the easements, profits and
appurtenances thereto and the said
Shri A and Shri B, the parties of the First and Second part
have no claim, right, title or interest whatsoever in the
said properties, both movables and immovables, allotted to
the said Shri C ———————————.
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The said Shri C ——————— the party of
the Third part shall be entitled to Have And To Hold the
properties allotted to him subject to the payment of all
rents, taxes and duties becoming chargeable thereon
hereafter.
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The said Shri C ————————— the party of
the Third part shall be entitled to peacefully and quietly
enter upon, occupy, possess and enjoy the said properties
allotted to him and receive the rents and profits thereof to
his own use and benefit.
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The said Shri A and Shri B, the
parties of the First and Second parts hereby release the
said Shri C from all claims whatever in respect of the
properties allotted to the said
Shri C ———— the party of the Third part.
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The said Shri C ————————— the party
of the Third part hereby releases the said Shri A ———————
and Shri B ————————— from all claims, rights, titles and
interests whatsoever in respect of the properties, which
continue to be held as properties of the said Joint and
Undivided Hindu Family.
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The parties of the First, Second and
Third parts hereby agree to sign and execute all deeds and
documents, which may reasonably, be required for the
effectual realisation of these presents.
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The parties hereto shall do, perform
and execute all such further acts, things and deeds as may
be reasonably necessary for the more effectual enjoyment of
the said joint properties belonging to the said joint and
Undivided Hindu Family by the said Joint Family and the said
properties allotted to Shri C ———— by him.
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The parties hereto declare that the
market value of the properties allotted to the said Shri C
—————— is Rs. ————— for the purposes of stamp duty.
In Witness Whereof The Parties Have Put Their
Hands The Day and The Year Hereinabove Written.
Schedule
Part - I
List of the immovable properties allotted to
Shri C ————————— the party of the Third part.
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Part - II
List of the movable properties allotted to
Shri C —————————— the party of the Third part.
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—————
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Signed and Delivered by the withinnamed party
of the First Part in the presence of
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Signed and Delivered by the withinnamed party
of the Second Part in the presence of
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Signed and Confirmed by the withinnamed party
of the Third Part in the presence of
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