Family law - Partition

Family law - Partition

1. What is partition according to hindu law. Kashyap Thakkar | Danish Kanungo | Dhvani Gajjar | Raj Amreliya SEM VI | Family Law - II

2. PARTITION Partition, is an act by which a coparcener severs his relations with joint family and loses his status of coparcener and becomes an independent individual from the joint family. An important consequence of such partition is that the share of coparcener seeking partition which is till partition uncertain, fluctuating and unpredictable, becomes specific and definite, as a result of partition, and thus allotted to the respective members.

3. PARTITION The adjustment into specific shares the diverse rights of the different members according to the whole family property;

4. PARTITION Under the Dayabhaga law, it means division of property in accordance with the specific share of the coparcener. It means, splitting up joint possession i.e. parting or dividing the share among coparcener according to metes and bound. Division of property in accordance with the specific share of the coparceners. Under the Dayabhaga the essence of coparcenary is unity of possession, while in Mitakshara it is unity of ownership

5. PARTITION Persons not entitled to enforce partition under the Dayabhaga Law are: Sons, Grandsons and great grandsons have no birth interest in ancestor property against their father, so there is no right for partition. It consider the illegitimate son of shudra becomes a coparcener with legitimate sons when they inherit the property after the death of the father. Father’s wife-no such right Childless step mother no entitle to a share after partition

6. PROPERTY LIABLE FOR PARTITION 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. Similarly, the following properties are not liable to partition: Impartible estate i.e., property which descends to one member only, either by custom or under any provision of law or by terms of grant. Property indivisible by nature, e.g., ponds, staircase, passage Family idols and relies which are object of warship

7. PROPERTY LIABLE FOR PARTITION Separate property of a member The places of worship and sacrifice or the property which has been dedicated to religious and charitable purposes. The well and the rights to draw water from the well The ornaments and the dress materials given to the wives of the coparceners The headship of a Math

8. DEDUCTIONS AND PROVISIONS Some provisions must be made out of the property liable to partition before any partition is affected. Debts incurred for joint family. Personal debts of the father not incurred for illegal or immoral purposes. Maintenance of dependent female members and disqualified heirs. Marriage expenses of unmarried daughters of the last male holder but not of the collaterals. Expenses for the funeral ceremony of the widow and the mother of the last male holder.

9. Modes of partition Severance of Joint Status or interest-expression of intention- one member of joint family can express his intention to partition by Notice by Will Conversion to another Religion. Marriage under special marriage act. by agreement by arbitration by father by suit

10. Discuss the powers and duties of karta Kashyap Thakkar | Danish Kanungo | Dhvani Gajjar | Raj Amreliya SEM VI | Family Law - II

11. KARTA The joint Hindu family is a patriarchal organization and the head of the family is known as Karta. He is the senior most male member of the family and as a head or manager of the family, he is the representative of the family and acts for or on behalf of the family. A Karta is a person in whom, others in the family repose confidence, so between the Karta and the family members there is a fiduciary relation because there is always a need for a manager to look after the welfare of minor members and females in a joint Hindu family.

12. POWERs Power over income and expenditure Power to manage joint family business Power to contract debt for family purposes Power to enter into contracts Power to refer to arbitration any matter involving the interest of joint Hindu family and the other members of the family including minors Power to enter into compromise in any matter relating to joint Hindu family property

13. POWERs Power to give discharge to the debt due to joint family Power to acknowledge debts or make a part payment of it, so as to extend the period of limitation. Power to represent in suits Power of alienation of joint Hindu family property

14. DUTIES AND LIABILITIES He has the duty to render accounts to the other coparceners regarding the income from joint family property and expenditure thereon He has the duty to realize the debt due to the family He has the duty to spend the joint family funds only for the purposes of the family and should spend reasonably

15. DUTIES AND LIABILITIES It is the duty of the Karta not to start a new business without the consent of other coparceners. It is the duty of Karta not to alienate the coparcenary property without legal necessity or benefit to the estate.

16. Discuss the pious obligation of hindu son to pay debt of his father. Kashyap Thakkar | Danish Kanungo | Dhvani Gajjar | Raj Amreliya SEM VI | Family Law - II

17. pious obligation of hindu son to pay debt of his father Under the Hindu Law, a son is under a pious obligation to discharge his father's debts out of his ancestral property even if he had not been benefited by the debts, provided the debts are not avyavaharika (impractical). The sons get exonerated from their obligation to discharge the debt of their father from the family assets only if the debt was one tainted with immorality or illegality.

18. pious obligation of hindu son to pay debt of his father The ancient doctrine of pious obligation was governed by Smriti law. There is a pious obligation on the sons and grandsons to pay the debts contracted by the father and grandfather. The concept of pious obligation has its origin in Dharmashastras, according to which non-payment of debt is a sin which results in unbearable sufferings in the next world.

19. pious obligation of hindu son to pay debt of his father Hence the debts must be paid off in all circumstances provided it was not for immoral and illegal purposes. Vrihaspati has said, “If the father is no longer alive the debt must be paid by his sons. The father’s debt must be paid first of all, and after that a man’s own debts, but a debt contracted by the paternal grandfather must always be paid before these two events.

20. pious obligation of hindu son to pay debt of his father Yajyavalkya says, “A son has not to pay in this world father’s debt incurred for spirituous liquor, for gratification of lust or gambling, nor a fine, nor what remains unpaid of a toll; nor idle gifts.” But in case of debts for purposes other than the above, on the death of the father, or on his going abroad, or suffering from some incurable disease, the debt contracted by him would be payable by his sons and grandsons.

21. pious obligation of hindu son to pay debt of his father The Mitakshara has presented the entire proposition in stronger words. According to it when the father has gone abroad or is suffering from some incurable disease, the liability to pay the debt contracted by him would lie on the sons and grandsons irrespective of the fact that the father had no property.

22. pious obligation of hindu son to pay debt of his father The Hindu Undivided Family system is a unique feature of the Indian society and the concept of pious obligation acts as a thread which binds the family together and prevents it from disintegration. Pious obligation includes both spiritual as well as material aspects and makes the heir(s) responsible/liable for spiritual duties, like performing the last rites of the deceased, paying back debts accrued by the deceased and also fulfilling other responsibilities left incomplete in respect of the joint family.