Ordinarily, if a member sues his coparceners for partition, the suit must comprise all the joint property which is then capable of partition. The general rule undoubtedly is that there cannot be a partial partition. At any rate, a coparcener cannot, by suit, enforce a partial partition.
Partial partition by private arrangement is, however, allowed.
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A suit for partition should ordinarily embrace all the joint family properties. However, as laid down in Hari v. Ganpatrao (7 Bom. 272), this general rule is subject to certain qualifications..
When a suit for partition is by a coparcener, it need not be for the whole property,
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(1) Where different portions of such property are situated in and out of India (Ramacharya v. Anantcharya, 18 Bom. 389); or
(2) Where a portion of the property is not available for actual partition, as for instance, if it is in a mortgagee’s possession, or if it is inam land requiring Government permission to give jurisdiction to the Court; or
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(3) Where property is held in partnership by the joint family along with strangers, who have no interest in the family partition among the members, and who could not, therefore, be made parties in the family partition (Purshottam v. Atmram, 23 Bom. 597); or
(4) Where property was excluded through mistake, accident or fraud at the time of the previous partition.
In such cases, a suit for partial partition, i.e., partition of such property as is available, will lie.
A partition effected between coparceners by mutual agreement may be partial, either in respect of the property or in respect of the persons making it.
I. Partial as to property:
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It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint property, while retaining their status as a joint family, and holding the rest as the properties of a joint and undivided family. But, once it is shown that the parties intended to sever themselves, the joint status comes to an end, and even the property which remains undivided would lose its joint nature, and the members of the family would hold it as tenants-in-common, unless there is a special agreement to hold it as joint tenants.
II. Partial as regards persons:
Just as a partition may be partial as regards the property, so it may be partial as regards the persons separating. The rules of presumption regarding partial partition or otherwise, as laid down in several important decisions of the Privy Council and the Supreme Court may be summed up as follows:
(i) The general principle is that every Hindu family is presumed to be joint, unless the contrary is proved.
(ii) But once it is proved that one member of the joint family has separated from the others, there is no presumption that the rest continue to live jointly. The Privy Council has observed in Balabux v. Rukmabai, (1903) 30 I.A. 130: “There is no presumption when one coparcener separates from the others, that the latter remain united. An agreement amongst the remaining members of the joint family to remain united or to re-unite must be proved like any other fact.”
But no express agreement is necessary for this purpose. The intention to remain joint may be inferred from their conduct indicating such an intention.
The Supreme Court also has approved these principles in Bhagabati Prasad v. Dulhin Rameshwari, [(1951) S.C.R. 603].
(iii) When there has been a separation between members of a joint family, there is no presumption that there was a separation between one of the members and his descendant. (Haribaksh v. Babulal, (1924) 51 I.A. 153)
(iv) A Hindu father may be separated from his sons, and the sons may remain joint, or he may be separated from his sons by one wife, and remain joint with his sons by another wife.
(v) In a suit for partition, the decree for the partition is the evidence to show whether the separation was only a separation of the plaintiff from his coparceners or was a separation of all the members of the joint family from each other. (Palani Ammal v. Muthuven Katacharla, (1925) 52 I.A. 83)
(vi) A renunciation, by a member, of his interest in the family property does not lead to the presumption that the other members are separated.
Though a partition may be partial by mutual agreement of the parties, no coparceners can enforce a partial partition against the other coparceners.
In K.T. Prasad v. C.I.T. [(1982) 1 S.C.C. 447)], the Supreme Court reiterated following basic principles of partition and partial partition:
(i) When there is a partition, it is presumed that it was a total partition, both as to parties and property.
(ii) When there is a partition between brothers, there is no presumption that there has been a partition between one of them and his descendants.
(iii) However, it is open to any person who alleges that a partition has been partial (either as to persons and as to property), to establish that fact.
(iv) Hindu law does not require that, in every case of partition, the property must be partitioned by metes and bounds. A declaration of intention by a coparcener to become divided brings about a severance of status, and it is open to the parties to thenceforth enjoy their respective shares of the property as tenants-in-common.