Partition vs Inheritance: Know Your Property Rights in Joint Families

In India, usually families live together as a joint family. This means that property is shared among the joint family owners. However, when it comes down to division of the property, people often get confused between partition and inheritance. Both deal with how property is passed down, or divided, but the ultimate meanings are vastly different. As discussed above, understanding the difference is crucial to minimize the potential for legal disputes and to allow for a fair distribution of assets. This article will try to explain these concepts in simpler terms, with a mix of examples and laws such as Hindu Succession Act, 1956

Understanding Joint Family and Coparcenary

In the context of Indian society and under Hindu law, a Joint Family is a set of people who are lineal descendants of a common ancestor typically living together and sharing food, worship and property. It encompasses basically parents and their sons, daughters and their children, all members of the Joint Family live under the same roof and own the Joint Family property together.

A Hindu Undivided Family (HUF):

A Hindu Undivided Family (HUF) is a legal term that applies to such a joint family under the Hindu law. It has been given a definition under the Hindu Succession Act, 1956 and is recognised under the Income Tax Act. An HUF is not created by any arrangement, it comes into existence automatically in families that practice Hinduism, Buddhism, Jainism or Sikhism.

Who is a coparcener?

A coparcener is an individual who, by birth, has the right to demand a partition in the family property. Traditionally only sons were coparceners, but following the 2005 Amendment to the Hindu Succession Act, daughters have equal coparcener rights. In essence, now the sons and daughters of a coparcener also have equal rights in joint family property from birth.

Key Features of a Coparcenary:

• It consists of four generations: father, son, grandson, great-grandson.
• All Coparceners have equal rights.
• Any coparcener can demand partition of the property.
• On partition, a coparcener receives own share.

Important Laws:

• Hindu Succession Act, 1956 (in particular Section 6)
• Hindu Succession (Amendment) Act 2005

Understanding this basic concept is important to identify who has a right to claim property and if the claim is by partition or inheritance.

What is partition?

Partition refers to the division of property of a joint family among its members whereby all members of a joint family receive their share and thereby they own an independent share in the property. A partition does not rely on someone dying. It can be demanded while a member of the family is very much alive. The partition would sever the joint nature of the Hindu Undivided Family and signify the termination of shared ownership over property.

Types of Partition

1. Total Partition: All the property of the joint family is completely divided among the members, which marks the termination of Hindu Undivided Family.
2. Partial Partition: Only some assets or some members are set apart, but the joint family continues to own the property and remains legally a joint family, but has severed shared ownership of property dividing the assets of the family members.

How is Partition Done?

There can be many ways for a partition to occur.

1. By Mutual Agreement: All coparceners agree to divide property by mutual agreement;
2. By Filing a Partition Suit: In a family setting, if members disagree about the division of an asset or joint family property, any member can simply file a case in a civil court representing an unavoidable family dispute and request the court to determine his or her rightful share;
3. By A Registered Partition Deed: This is a legal representative document to say how property has gone to each coparcener or family member and must be stamped and registered.
4. By Notice of Partition: A member can issue Notice to all other members, that a partition to the joint family property is inevitable and it is a mutual decision to divide.

Legal Effects of Partition

• Each member gets their partition and share.
• HUF status terminates (in the case of a total partition).
• Each separated property becomes self-acquired for each member.
• Members are free to sell, gift, or will their share.

Key Legal provisions and Laws

Section 6, Hindu Succession Act 1956 – This section explains coparcenary rights and possession of HUF property related to partition.

Civil Procedure Code (CPC) – The CPC deals with how a partition suit will be dealt with in a court of law.

Income Tax Act – Partition done in the HUF is recognised under section 171 of the Income Tax Act.

Example

In a joint family of a father and his two children (a son & a daughter) live together, and have joint family property. The son or daughter has the right to demand their share at any time, by making a request for partition. If they agree then HUF property is partitioned, and they will get a share of the property which they can own separately.

In summary, a partition is about division of property among living members of a Joint Family (HUF), and with proper legal documentation or court order, if there is disagreement.

What is Inheritance?

Inheritance refers to passing on the property after someone’s death to the legal heirs of his or her estate. Inheritance typically arises in cases of a person’s death without a will (or intestate). If a person dies intestate, the law determines to whom the deceased’s property will go and the share each heir will get.  While partition is a division among living joint family members, inheritance comes into play only after the death of a person, and is most often regulated by personal laws according to the religion of the deceased.

Types of Property in Inheritance

1. Ancestral Property: Property inherited by a person from their father, grandfather, or great-grandfather. Ancestral property shared by all coparceners.
2. Self-acquired Property: Property obtained by a person and paid for, with their own money. The person who has acquired the property has full rights over the property, they must decide if they want to make a will for the property or it will get inherited according to the law.

Who Inherits the Property?

The Hindu Succession Act, 1956 established heirs in 2 classes:

1. Class I Heirs (where priority is given)
2. Son
3. Daughter
4. Wife
5. Mother
6. Children of predeceased son/daughter

All Class I heirs inherit equally. When a man dies without a will his property is divided equally among Class I heirs.

• Class II Heirs (are only considered if no Class I heir is available):
• Father
• Brother
• Sister
• Grandchildren through daughter and etc.

For women, property inherited from her parents will go to her children and husband first. However, if she dies with no children, the property may return to her parental family.

Key Legal Provisions

Hindu Succession Act, 1956

• Sections 8: General rules of succession for males
• Section 15: Rules of succession for females
• Section 6: Coparcenary rights (also applicable for ancestral property)

Inheritance vs Will

• If will is made property passes as per the will (this is called testamentary succession).
• If there is no will, the law will apply to see what happens (this is called intestate succession).

Example

If Mr. Sharma dies without a will and has wife, one son and one daughter, then each of them will get a one-third share of Mr. Sharma’s property as per the Hindu Succession Act.

Inheritance for other religions

Muslims– Governed by the Muslim Personal Law (Shariat) Act, 1937. Shares are already pre-fixed in this case. There is no joint family property or coparcenary.

Christians/Parsis– Governed by the Indian Succession Act, 1925

Others – Governed by Indian Succession Act unless personal law applies.

In summary inheritance is the legal transfer of ownership of property following one’s death whilst partition is the division of property held in common or for the joint benefit of two or more persons, by the members of the ownership during the lifetime of the members.

Key Differences Between Partition and Inheritance

Partition and Inheritance may both deal with transferring, but they are fundamentally different in meaning, timing and the legal process which makes their distinction important to avoid confusion and legal issues, especially in the context of a joint family.

1. Meaning and Purpose

Partition: Division of the joint family property among the living coparceners, each receiving a separate share. A partition destroys the unity of a joint Hindu family.

Inheritance: The transfer of property owned or left by a deceased person to their heirs. Normally occurs upon the death of a person, especially if that person died without a will (intestate).

2. When it Happens

Partition: Can happen at any point in time, with any one of the living coparceners demanding it.

Inheritance:  This only happens after the death of the property owner.

3. Who Is Entitled

Partition: Only the coparceners (sons and daughters as per Hindu law) have a right to ask for partition of joint family property.

Inheritance: All legal heirs (spouse, children, mother) are entitled to the property of the deceased even members who are not the coparceners.

4. Legal Basis

Partition: Regulated by principle of Hindu Law, and Section 6 of the Hindu Succession Act, 1956.

Inheritance: Governed by the Hindu Succession Act, 1956, and the Indian Succession Act, 1925 (for Christians, Parsis, and others).

5. Rights of Daughters

Partition: After the amendment of 2005 in Hindu Succession Act, daughters are now considered as coparceners by birth and therefor have equal rights to file for partition.

Inheritance: Under the Hindu Succession Act, daughters are placed under the category of Class I heirs under and are entitled to the deceased’s property in equal manner, irrespective of their marital status.

6. Role of the Courts

Partition: May involve a suit in civil court if there are disagreements

Inheritance: Generally, is straightforward unless there are disputes.

7. Effect on Property

Partition: The joint family property becomes separate individual property once partitioned.

Inheritance: The property of the deceased transmits to heirs and does not affect or sever the joint family apart from the inherited property, which is certainly ancestral.

Feature	Partition	Inheritance
When it happens	During lifetime	After death
Who can claim	Coparceners only	All legal heirs
Law applicable	Hindu Law & HSA 1956, Sec. 6	Hindu Succession Act, 1956
Involves death?	No	Yes
Court process?	If dispute exists	Mostly mutation unless disputed
Property type	Joint family property	Self-acquired or ancestral property
Daughter’s rights	Equal coparcener (post-2005)	Equal Class I heir

To summarize:

Partition is the live division of shared property.
Inheritance is the transfer of property after death of the owner.

Rights of Daughters: Before the year 2005 only sons had legal right in the ancestral property. But after the Hindu Succession Act, amendment of 2005, daughters were also considered as coparceners in a Hindu Joint Family. They have gained equal rights as sons, and now they can inherit the property even after marriage.

FAQs about Partition vs Inheritance