Date: 3 November, 2020
by Divya Menon, UILS, Panjab University
“As between brothers or other relations, absolute equality is now the invariable rule in all States, unless perhaps, where some special family custom to the contrary are made out.” (Siromani v. Hemkumar 1968 S.C. 1299)
A property within a Hindu Joint family is partitioned according to the Hindu Succession Act, 1956. In a partition by metes and bounds the shares are allotted to coparceners on the basis of the following rules:
(Remember: After the amendment of 2005, daughter is an equal coparcener in the Joint Family Property)
Rule No. 1 -Division between father and son:
When partition takes place between father and sons the rule is that each son takes a share equal to the share of the father.
Illustration: A has three sons, B, C and D
Now each of them that is A, B, C, and D take 1/4th share the joint family property.
Rule No. 2 - Division between brothers when a coparcenary consists of brothers and partition takes place between them:
The rule is that they take equal shares in the joint family property.
Illustration: A coparcenary consists of five brothers A, B, C, D and E. Each of them on partition will take 1/5th share.
Rule No. 3 - When division takes place among branches:
When a coparcenary consists of several branches and partition takes place the rule is that each branch takes per stirpes (according to the stock) as regards every other branch and the members of each branch take per capita.
In this example. a coparcenary consists of three generations- father, sons and grandsons if partition takes place among the coparceners according to this rule, the partition will be per stirpes. This means that in a partition where there are branches, there are two steps in partition (1) the division of property would first take place between the father and the sons. That is between the father and the heads of the following branches. And (2) the next step will be to effect partition between sons of the branch. Here in this part of division, it will be given per head.
Therefore, in this illustration, firstly, A, S, S1, S2 will get 1/4th share each. Now A’s share is his individual share but the share of others will further be divided per capita.
Rule No. 4 - Doctrine of Representation: Under the Mitakshara school, coparcener’s interest devolves by survivorship. This is subject to the rule that where a deceased coparcener leaves issues, the latter represent their ancestor in a partition and take his share provided that such issues are within the limit of coparcenary.
Illustration: a family consists of the following members:
This family consists of two brothers (deceased) , B and C. therefore, the branch of each brother will take ½ share. But B being dead, D will represent him and his branch will take 1/2 . C being dead, his ½ share will go to his three sons and E, F, G will get 1/6th each.