In a Hindu Undivided Family (HUF) governed by the Mitakshara law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of the family. The shares of the coparceners get defined only when there is partition, on severance of joint family status. While partition defines the shares of the coparceners, actual division of the property by metes and bounds is not necessary to bring about partition. Once the shares are defined, partition is complete.

The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property[1]. Thus, the factum of partition is distinct from the de facto division of the property held until then jointly into specific shares.

A member can unilaterally severe joint family status by unequivocally evincing an intention to do so. Commencement of suit for partition is one of the ways to unequivocally evince an intention to and results in, severance of joint family[2]. An agreement or a decree may however be necessary to work out the result of the severance and for allotting definite shares.[3]

Severance of joint status converts joint tenancy into tenants-in-common

A 3-Judge Bench of Supreme Court in M.N. Aryamurthy and anr. v. M.D. Subbaraya Setty[4] (Aryamurthy), considered if after severance of joint family status, if one of the family members remains in possession of properties of the family and acquires some property with the funds in his possession, whether other members could claim share in that property.

The bench held that on partition by severance of joint status, the members of family became tenants in common of the family property and if one of the members remained in possession of the entire property of the family, there was no presumption that the property acquired by him after severance of status was for the family; that the funds in the hands of a divided member did not become impressed with any trust in favour of other members though if rents / profits were received by such member, he would be liable to account for the same; however, other members could not claim share in the property acquired by a divided member out of family funds that remained in his possession. This principle was reiterated in another 3-Judge Bench of Supreme Court in Kondiram Bhiku Kirdat v. Krishna Bhiku Kirdat[5] (Kondiram), by declining share in properties purchased by a member of HUF, after severance of status in his individual name, to other members.

The position is captured in following words of Supreme Court in Kalyanaswamy v. Bakthavatsalam[6]:

156.1. In a coparcenary, there is joint tenancy. A Hindu coparcenary can be disrupted or a division is caused by a unilateral declaration by a coparcener to put an end to the joint family. What the coparcener has before the division is produced, is an interest. Upon a declaration being made, expressing intent to separate without anything more but no doubt on communication of the same to the other coparcener/coparceners, partition in the above sense viz. causing a division of title takes place.

As already noticed, the partition in the aforesaid sense has far-reaching consequences. The joint tenancy, which includes the concept of right to inherit by survivorship, is terminated with the partition being effected in the first sense.
If the coparcener dies after causing such a partition, as the right on the basis of doctrine of survivorship is annihilated, his death, after such partition, would result in his heirs becoming entitled to succeed. In that sense, joint tenancy would be replaced by tenancy-in-common but that is not the same as saying that the properties of the family, where there has been a partition in the first sense, will without anything more stand transformed into the separate and exclusive properties of the divided members.

Thus, upon severance of joint family status on filing of suit for partition, joint tenancy gives way to tenancy in common, with each member having a defined share. As a result, subsequent events like acquisition of additional properties by a member in his individual name (including by using proceeds from property held as tenant in common), or drawing of preliminary or final decrees, have no impact on shares of each member which is already defined.

Legislative Provisions
The Hindu Succession Act, 1956 (HSA) amended and codified law relating to intestate succession among Hindus.

State of Andhra Pradesh introduced Hindu Succession (Andhra Pradesh Amendment) Act,1986 ("Andhra Pradesh Amendment"). Sec.29A thereof provided that in a joint Hindu family governed by Mitakshara law the daughter of a co-parcener by birth will become a co-parcener in her own right; and at a partition of coparcenary property the daughter was entitled to same share as allottable to a son. However, the benefit was not available to a daughter in a partition which had been effected before commencement of said amendment.

By Hindu Succession (Karnataka Amendment) Act, 1990, amendment to HSA similar to those in Andhra Pradesh was introduced (Karnataka Amendment).

In 2005, Parliament amended HSA[7] (2005 Amendment), to make the daughter of a co-parcener, by birth, a co-parcener in her own right. However, it was provided that a disposition or alienation including any partition that took place before 20/12/2004 could not be impacted.

Neither HSA or its amendments, altered the settled position that the actual partition occurs on severance of joint family status and upon such partition if the members of family do not divide the HUF properties by metes and bounds, they continue as tenants in common.

Problematic judicial interpretations
Before a Division Bench of Supreme Court in S. Sai Reddy v. S. Narayana Reddy & Ors.[8] ("Sai Reddy") a question arose whether passing of a preliminary decree in a partition suit, before coming into effect of Andhra Pradesh Amendment precluded a daughter from the benefit conferred by the said amendment. Without adverting to the position settled by larger bench in Aryamurthy, the Bench proceeded on the premise that unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete.

It held that the preliminary decree which determines shares, does not bring about final partition; and pending final decree the shares are required to be varied on account of intervening events. The Bench further held that the Andhra Pradesh Amendment being a beneficial legislation, it required liberal construction and therefore partition envisaged in the amendment could not be equated with mere severance of status of joint family; the Andhra Pradesh amendment contemplated partition complete in all respects which brought about an irreversible situation. Another Division Bench in Ganduri Koteshwaramma and another v. Chakiri Yanadi and another[9] (Ganduri Koteshwaramma) followed the decision in Sai Reddy.

In Prema v. Nanjegowda and Ors.[10] (Prema), following the decision in Sai Reddy regarding Karnataka Amendment, again without referring to the decision of larger Bench in Aryamurthy, it was reiterated that preliminary decree only determines the shares of the Parties, but actual partition did not take place.

Notably, in Prema the Bench also relied on decision of 3-Judge Bench in Phoolchand v. Gopal Lal[11] ("Phoolchand") wherein it was held that in a partition suit, if an event transpires after the preliminary decree which necessitates a change in share, the court can and should pass a second preliminary decree to give effect to such change of shares. In Phoolchand, the plaintiff therein had filed a suit for partition of his 1/5th share against his father, mother, brother and son of pre-deceased brother. After preliminary decree was passed specifying the shares of parties, before final decree could be passed, plaintiff's father and mother died and the parties to the suit claimed having acquired their share on account of Will and sale.

Therefore, a question had arisen whether the shares allotted to the parties to the suit can be varied so as to also provide for distribution of shares of plaintiff's deceased father and mother. Said question was answered in affirmative taking note law did not prohibit passing of more than one preliminary decree; and it may be necessary to do so in partition suit when after the preliminary decree some of the parties died and as a result of which shares of the surviving parties are augmented. With due respect, the decision in Phoolchand did not consider or lay down that preliminary decree only determines the shares of the parties, but actual partition takes place when final decree is passed.

A Division Bench of the Supreme Court in Prakash & Ors. v. Phulavati & Ors.[12], considered the issue whether 2005 Amendment was retrospective. The court held that the rights under the amendment were applicable to living daughters of living co-parceners as on 9/9/2005, irrespective of when such daughters were born; that disposition or alienation including partitions that took place before 20/12/2004 as per law applicable prior to said date including notional partition as per section 6 of unamended HSA, remained unaffected. The Bench though referred to the decisions in Sai Reddy and Prema, it did not follow the same.

Another Co-ordinate Bench in Danamma & anr. v. Amar & Ors[13], following Ganduri Koteshwaramma, opined that when during pendency of a suit for partition, Sec.6 was amended, the rights of daughters in co-parcenary property after amended Sec.6 were not lost because of preliminary decree that had been passed in the partition suit; that partition becomes final only on passing of final decree; that preliminary decree would have to be amended to take into account the change in law brought in by 2005 amendment.

Yet another Co-ordinate Bench in Mangammal & Anr. v. T.B. Raju & Ors.[14] noticing the conflicting view taken in Prakash and Danamma held that Prakash would hold precedent on the issue of death of a co-parcener.

Vineeta Sharma
Delhi High Court in Vineeta Sharma v. Rakesh Sharma[15], noticing the conflicting decision in Prakash, Danamma and Mangammal granted Certificate of Fitness to appeal under Article 133 (1)(a) and 134-A of the Constitution and accordingly the matter was considered by 3-Judge Bench of Supreme Court in Vineeta Sharma v. Prakash Sharma & Ors[16] ("Vineeta Sharma").

The Bench in Vineeta Sharma noted the position that by filing a suit for partition a member of joint family clearly intimates his intention to separate and the same results in severance of joint family status, irrespective of whether consequential judgment is passed or not. The Bench however added a rider that if subsequent to filing of suit / severance of joint family status, law confers a right or such other event takes place, its effect has to be worked out even after passing of preliminary decree.

Without adverting to 3-Judge Bench decisions Aryamurthy and Kondiram and by following 2-Judge Bench decisions in Sai Reddy, Prema and Ganduri Koteshwaramma. the bench opined that mere severance of status on account of filing of a suit does not bring about the partition and till the date of final decree, the changes due to subsequent events, could also become a subject matter of partition. Decision in Vineeta Sharma was followed in Prasantakumar Sahu and others v. Charulata and others[17].

Why revisit Vineeta Sharma
A careful analysis of decisions in Sai Reddy, Prema and Ganduri Koteshwaramma shows that the ratio therein that until final decree is passed the partition is not complete, is contrary to law laid by larger Bench in Aryamurthy and Kondiram. Consequently, view taken by 3-Judge Bench in Vineeta Sharma, following Sai Reddy, Prema and Ganduri Koteshwaramma, without adverting to Co-ordinate Bench decision in Aryamurthy and Kondiram may not be laying down the correct position.

A view that the objective behind 2005 amendment to HSA being to end discrimination against daughters in the matter of inheritance of ancestral properties, the earlier partition that has been saved are only those where division by metes and bounds had already taken place, may be possible. However, to take a view that a preliminary decree does not result in partition and that even after severance of joint family status, effect has to be given to subsequent events, would run contrary to earlier decisions. Therefore, re-visiting Vineeta Sharma to clarify these aspects is necessary.

End-Notes:

1. Girijanandini Devi v. Bijendra Narain Choudhary, (1967) 1 SCR 93
2. Girijanandini Devi v. Bijendra Narain Choudhary, (1967) 1 SCR 93; Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar, (1979) 4 SCC 60
3. Girja Bai v. Sadashiv Dhundiraj, 1916 SCC OnLine PC 31, Kawal Nain v. Budh Singh, 1917 SCC OnLine PC 25, K. Ramalinga Annavi v. Narayana Annavi, 1922 SCC OnLine PC 13
4. (1972) 4 SCC 1, para-19 & 20
5. 1994 Supp (3) SCC 548, para-3
6. (2021) 16 SCC 543
7. by Hindu Succession (Amendment) Act, 2005
8. (1991) 3 SCC 647
9. (2011) 5 SCC 788
10. (2011) 6 SCC 462
11. AIR 1967 SC 1470
12. (2016) 2 SCC 36
13. (2018) 3 SCC 343
14. (2018) 15 SCC 662
15. 2018 SCC OnLine Del 9092
16. (2020) 9 SCC 1
17. (2023) 9 SCC 641