Q. I belong to a Hindu family having acres of ancestral property. Now we have decided to divide the property among the persons who are alive and eligible for the respective shares. How can we divide the shares?
Ancestral property is a property that has been inherited upto 4 generations of male lineage. By birth itself a right to share in the property occurs under this kind of property. Any property that has been inherited from mother, grandmother, uncle or brother is not considered as ancestral property. C. Krishna Prasad vs C. I. T. Bangalore on (12 November, 1974) it was held that a coparcener obtains a share on partition of ancestral property will be considered as ancestral property as regard his male issue.
Partition brings the joint status to an end and joint family ceases to be joint anymore. Mitakshara School explains that “partition is an adjustment of diverse rights regarding the whole by distributing them of the aggregate”. When the shares of each coparceners are given the partition is said to have had effect. Supreme Court in Sarin v. Ajit Kumar (1 March, 1965) held that when each coparcener gets a title to the said property partition takes place. But there are certain properties that cannot be divisible which are by nature not capable of division like dress, vehicle, ornaments, cooked food, female slaves, property used for pious purpose.
By way of partition you can divide the property. Partition can be made by mere declaration to separate, Partition by Notice, Partition by Will, Conversion to Another Faith, marriage under Special Marriage Act 1954, Partition by Agreement, Partition by Arbitration, Partition by Father, and Partition by Suits. Girjanandini v. Brijendra (11 August, 1966) it was held by Supreme Court that partition can ordinarily take effect by instituting a suit. These 9 modes of partition are not exhaustive and there can be other circumstances as well that can be admissible for partition.
When a division takes between brothers after partition they will take equal shares in the joint family property. If there are 5 brothers then each one will take 1/5th share in the property. Coparcener’s interest devolves by survivorship under Mitakshara School. When partition is between father and sons each son will take a share equal to share of his father. Under Hindu law every coparcener has a right to partition and entitled to a share on partition. Under Hindu Succession (Amendment) Act 2005 even daughter are entitled to a share in the property. Section 6 gives daughters right to be entitled to a share as per amendment. Share inherited by mother and daughter will go as a coparcener property.
by Sushma Javare.