Partition and Reunion - Religious and Charitable Endowment | Family Law - CLAT PG PDF Download

Partition under Hindu Law

• Partition is the process of  dividing family property  among its members, marking the end of their joint status and transforming the joint family into a nuclear family.
• Successful partition allows coparceners to receive their designated shares, signifying a severance of their joint interest.
• The Mitakshara school views partition as a  severance of status  , where mere division of property does not constitute partition unless there is a complete separation of joint family status.

Methods of Partition 

•  Total Partition  : Involves dividing the entire family property among all coparceners.
•  Partial Partition  : Occurs when only some members of the joint family partition their shares while others remain joint.

Conditions for Partition 

• Intention to Separate  : Members must have a clear intention to separate from the joint family.
• External Declaration  : This intention must be communicated explicitly, either verbally or in writing.

Modes of Partition under Hindu Law 

• Partition by Father during His Lifetime  : The Karta of the family can initiate a partition while the family is still intact.
• Partition by Suit  : The moment a suit is filed indicating the intention to sever, the partition is considered effective from that point.
• Partition by Agreement  : Severance of status begins from the date of signing the agreement. This can also include arbitration agreements where all members agree to appoint an arbitrator for property division.
• Partition by Notice  : A formal notice can initiate partition.
• Partition by Will  : A will can dictate the terms of partition after the testator's death.
• Oral Partition  : Partition can occur through verbal agreement.
• Partition by One Coparcener  : A unilateral declaration by one coparcener can initiate partition.
• By Conduct  : Changes in food, worship, and business practices can indicate partition.
• Partition on Death  : Also known as notional partition, it occurs upon the death of a coparcener.
• Partition on Conversion or Marriage  : Conversion to a non-Hindu religion or marriage under the Special Marriage Act 1954 can lead to severance of interest from the date of conversion or marriage, although the individual remains entitled to their share

Re-opening of Partition 

• Fraudulent Partition  : If a coparcener has gained an advantage through fraudulent means, such as misrepresenting assets or hiding property, the partition can be contested. The affected coparcener has the right to seek a re-opening of the partition.
• Person in the Womb  : If a son was conceived at the time of partition but born later, he has the right to claim his share as a coparcener. If the family members are aware of the pregnancy, the partition must be delayed until the child's birth, or his share must be reserved. If no reservation is made, the child can demand a re-opening of the partition after birth.
• Existence of Adopted Son or Sons  : According to Section 12 of the Hindu Adoption and Maintenance Act, 1956, adopted sons have the right to be considered coparceners at the time of partition. The birth of a biological son after adoption does not negate the rights of the adopted son. If the adopted son does not receive his share after partition, he can request a re-opening of the partition.
• Coparcener Disqualified  : If a coparcener is disqualified from receiving his share at the time of partition due to certain technical reasons, he can re-open the partition once the disqualification is lifted.
• Absence of Valid Coparcener  : If a coparcener entitled to a share is absent at the time of partition and no share is allocated in his name, he has the right to demand a re-opening of the partition.
• Coparcener in Minority  : If a coparcener who is a minor does not have his interests considered at the time of partition, he has the option to re-open the partition. There is no need for fraud, misrepresentation, or undue influence for a minor coparcener to re-open the partition if it is proven to be unfair to his interests.
• Additon of Property after Partition  : If some property is inadvertently or intentionally excluded, lost, or seized at the time of partition, the partition can be re-opened if such properties resurface. However, if these properties can be distributed among coparceners without re-opening the partition, there is no need to disturb the previous arrangement\

Reunion in Hindu Law

• Definition  : Reunion in Hindu Law refers to the process where family members regain their status as a joint family after having previously partitioned. It is the only means through which the joint-status of a family can be restored.
• Eligibility  : Only those family members who originally had joint status in the property at the time of partition are eligible to reunite. This typically includes parties such as father and sons, brothers, or paternal uncles and nephews.
• Intent and Communication  : A key requirement for reunion is the mutual intention of the parties to reunite in both estate and interest. Merely living together without the intention of regaining joint status does not constitute a valid reunion. The intention must be clearly communicated, with each coparcener giving individual consent to the reunion.
• Effects of Reunion  : Upon reunion, the members revert to their previous status as members of a joint family under Hindu Law. This means that the property previously divided among individual coparceners is reclaimed as collective property of the joint family. The members also regain their status as undivided coparceners. The reunion effectively restores the family and its members, along with their legal status, to the state prior to partition.
• Property Consideration  : It is not necessary for the reunited parties to have identical property as that which was separated at the time of partition. The essence of reunion lies in the love and affection of family members and the desire to live together, rather than the specific properties involved.

Religious and Charitable Endowments under Hindu Law

• Definition of Endowment  : An endowment is the dedication of property for specific purposes, particularly religious or charitable purposes. It involves the setting apart of property for the benefit of the public or a section of the public in the advancement of religion, knowledge, commerce, health, safety, or any other beneficial object.
• Legal Framework  : The legal literature on religious and charitable endowments is limited, as they were primarily regulated by customs. Much of the law in this area is judge-made. Gifts for religious or charitable purposes were motivated by the desire for religious merit and fall into two categories: Ishta (sacrifices and sacrificial gifts) and Purtta (charities). Charity is considered to have a higher status than religious ceremonies and sacrifices.
• Types of Endowments  : The courts recognize endowments as the setting apart or dedication of properties for the worship of a deity, maintenance of a religious or charitable institution, or for the benefit of the public or a section of the public in the advancement of religion, knowledge, commerce, health, safety, or other beneficial purposes. Examples include hospitals, schools, universities, alms houses, and establishment of idols.
• Public Trusts  : A public trust in Hindu Law must be made with the purpose of advancing religion, knowledge, commerce, health, safety, or other objects beneficial to mankind. Endowments are dedicated for purposes of religion or charity, with both the subject and object being certain and capable of ascertainment. Unlike English Law, the concept of a simple public trust is not recognized in Hindu Law. Dedication for the establishment and maintenance of a deity's image is recognized, and the property dedicated for a pious purpose is placed out of commerce and entitled to special protection from the sovereign.
• Creation of Endowments  : A Hindu of sound mind and not a minor may dispose of property by gift or will for religious and charitable purposes such as the establishment and worship of an idol, feeding Brahmins and the poor, performance of religious ceremonies, and the endowment of a university or hospital. There is no exhaustive list of what constitutes religious merit, but any purpose claimed for perpetual dedication on the grounds of religious merit must have a Shastric basis. Endowments for religious purposes can be made either by executing a trust in the English sense or by dedication according to Hindu custom. No acceptance is required for the completion of dedication to a Hindu deity, and no writing is necessary unless the endowment is created by a will. The essential requirements for creating a legally enforceable endowment include a valid religious or charitable object, unambiguous dedication, capacity of the founder, clear indication of purpose, compliance with legal requirements, and complete dedication of property.

Hindu Religious and Charitable Endowments Act, 1951 

• Objective  : The Act aims to regulate the administration of Hindu religious and charitable endowments, ensuring their proper management and accountability.
• Constitutional Basis  : The Constitution guarantees religious freedom, allowing individuals to manage their religious affairs, including temples and endowments, subject to reasonable restrictions.
• Historical Context  : Temples and endowments have deep historical roots, with temples evolving from simple fire altars in the Vedic period to complex structures accommodating deities. Charitable endowments became prominent in later periods, driven by the desire for religious merit. The state intervenes to protect these institutions and prevent misuse.
• Endowment Types  : Endowments can be Public or Private, Real or Apparent, Absolute or Partial, Religious or Charitable, and Valid or Invalid. Public endowments are open to all, while private ones are restricted to specific families or individuals.
• Public Endowment Criteria  : To determine if an endowment is public, evidence of public access and participation in worship or festivals is considered. If the public can freely access and participate in the endowment's activities, it is deemed public.
• Private Endowment Characteristics  : Private endowments are for family deities and restrict public access. If property is set aside for the exclusive worship of a family deity, it is a private endowment.

Public and Private Endowment

• To determine whether an endowment is public or private, one must consider the subsequent actions of the settler and the evidence of how the property is designated for use by the public.
• When a temple is opened for public worship, it strongly indicates the intention to create a public trust. If individuals outside the settler's family, along with family members, participate in worship and festivals at the temple, this further demonstrates the public nature of the endowment.
• In contrast, a private endowment restricts public access, such as when the property is set aside exclusively for the worship of the settler's family deity. If the property is securely separated for the sole use of family members in worship, with no public involvement, it constitutes a private endowment.

Inheritance and Succession 
1.  Historical perspective of traditional Hindu Law relating to Inheritance
2.  Hindu Succession Act, 1956
3.  Stridhana- Woman's Property
4.  Amendments to Hindu Succession Act
5.  Gifts and Testamentary Succession
6.  Wills

Hindu Succession Act, 1956

• Introduction:  The Hindu Succession Act, 1956, addresses property rights and inheritance within Hindu families. It outlines who is eligible to inherit property and the rights associated with property acquisition for both males and females.
• Section 2:  This section specifies the applicability of the law. It applies to individuals who are Hindus, Jains, Buddhists, or Sikhs by religion. It also extends to those who are not Muslims, Christians, Parsis, or Jews, unless proven otherwise by law.