By Samrat Bandopadhyay
‘Metes and Bounds’ consists of ‘division of the property’ by which all the coparceners with respect to all the joint property is fixed and defined; whereby it is shared from the ‘joint fund’ or ‘joint account’ which is created and then is equally divided between the members of Joint Hindu Family for effecting the partition. It also necessarily means to take all type of properties into consideration while going for partition via. metes and bounds. It is a form of ‘de facto partition’ and arrived at by conclusion of agreement or arbitration or by civil suit of partition. It follows from the coparcener’s intention to sever as to ‘status’ of Joint Hindu Family as well as ‘joint Hindu Property’ in question or notice is being given for ‘filing of partition suit’. For example, the market valuation of say the following is being done:
Immovable properties such as ancestral home, land.
Movable property of the nature of jewellery, Car (vehicle), Utensils and furniture.
Cash in the common joint account or fund maintained for the Joint Family (which may be maintained by ‘Karta’ or any other coparcener prior to the partition)
It is vital to note that the properties which are subjected to “partition” has to be assessed based on ‘Market value’ or ‘depending on the position’ that the members of the Hindu Joint family who agree by some ‘agreement’ or ‘understanding’ by a registration of ‘partition deed’ or decree of the Court.
The ‘Partition suit’ involves the following steps:
The Court passing a ‘Preliminary decree’, where the legitimate claimants are identified
Followed by assessment in field by ‘Advocate Commissioner’ appointed by Court, who would go to the field and see the status of the property which is the subject matter of partition
The ‘final decree of the Court’ is then implemented via executory order of the Court.
The Steps followed for apportionment in Partition by ‘Metes and Bound’
Step 1: First identify the ‘Net Property’ amount which could be divided during partition
Step 2: Thereafter allocate proper share to the members
Step 3: While dividing follow the Process/Procedure with ‘due cognizance of the factors’ mentioned below
The following factors have to be provided ‘due cognizance of’ in case of Partition by ‘Metes and Bound’
While dividing the property it has to be considered that
The family members of the Joint Hindu Property have sentimental attachment to the ancestral property. While dividing the property, it is being alluded that ‘Ancestral House or Building’ have an ‘intrinsic value’ and it provides an identity to the family, so it may be divided with the senior Coparceners.
The consideration to the likely timeline or till the ‘last Karta is alive’ – A religious ceremony could continue likewise, which also have to be considered.
It is vital to note that a ‘Trust’ considered for the ‘Religious Property’ and for the ‘litigation expenses related to the family’ can be created and it is vital to note that ‘Trust’ may be run by the family members with due consideration by family members keeping the expenses for administration/running of the trust for ‘certain number of years’.
Hindu Marriage of family members or marrying another person of another religion has a ‘bearing’ on the severance of the status and estate and such a person may be told to go with his share and subsequently for him or her branch the property may not be subject matter of consideration for partition as per Mitakshara partition done by Coparcenary family members.
How much excess remains to be provided to the other generations is another vital point to be taken care of? Jewellery is being sold and the subsequently the amount which is pooled into the ‘Joint account of the family’ is to be taken care of the ‘balance’.
Potential amount generated from an encumbered property or from property matter in sub judice or property matter which is ‘lis pendens’ is also not considered for division. As such expenses should be considered for certain number of years and the expenses would form part of ‘Liability’.
Jewellery as an ensemble for the family’s tradition and culture is divided among the young generation, generally which is take due care of.
The young generation generally have the ‘movable property’ being liquidated and the amount is being paid and hence accordingly balanced.
The recurring Liabilities are considered for certain number of years and hence it has to be provided weightage in the calculation of the ‘net amount’.
Thus, to arrive at the NET Amount to be quantified, an equation as this follows, NET Amount (which could be divided for the purpose of partition by ‘metes and bounds’) = Amount generated from the set of assets and from movable and Immovable property – (Minus) the Liabilities calculated taking aforesaid parameters.
Scenario generated for Marriage with another religion (other than Hindu religion)
Coparcenary would decide the share of the person who has opted to marriage with another partner of other religion. In such case, it totally the discretion of the other members of the family including the coparcener and the ‘Karta’ to decide the share and as such it would not be via Partition by ‘Metes and Bound’ as decided as per Mitakshara Coparcenary when it comes to partition. This also because ‘severance’ happens at the time the person married the other (who is from other religion). The person who severed is not given anything. It is vital to note that there is no need to continue with share allocation in case of the branch of that coparcener also.
Scenario for Female Coparcener
Female is the legitimate claimant and post 2005, the ‘daughters’ are the coparceners in the Hindu Joint Family. The female as a legitimate claimant steps into the shoes of the husband and is eligible for the claim of her share in the Hindu Joint Family property.
Scenario for Daughter
As post 2005, the property is vested in her name as the ‘vested interest’ is being created in favour of the daughter and she would be entitled to her claim on property as a ‘Coparcener’
Scenario for Surrogate Child
For surrogate child, as per the recent Act Surrogacy (Regulation) Act, 2021, the assent of which was provided by President Shri Ram Nath Kovind on 25th December 2021, it can be interpreted with assertion that the surrogate baby born has to be construed as that of ‘natural child’ rights which a coparcener would take care of.
Hindu Female as per Special Marriage Act vis-a-vis the Muslim female
It changes the scenario with respect to Partition. Since, severance of the status happens with respect to the purpose of Hindu Succession Act and considering ‘the law in force’ such a person in contravention cannot claim to be taking part of the Mitakshara Coparcenary property.
Looking from the legal lens of “judicial precedents”, the following cases has to be analysed:
In the case of Arshnoor Singh v. Harpal Kaur and Ors.[1], the issue was whether the “sale deed” executed for self-acquired property and coparcener property is valid or not. The Hon'ble Supreme Court held that, the power of Karta to alienate the property should be based on “legal necessity” and as the property transfer via sales deed has no consideration, so it was held to be not necessitated by legal necessity or benefit of the estate. The onus or the burden lies with the 'alienee' when it has to be proved that such transaction was for legal necessity. The vital observation included that of 3-degree rule with respect to ancestral property where the property inherited by the coparceners would be remaining as ancestral property as per Mitakshara Law.
In Lakshmi Chand Khajuria and Ors. v. Ishroo Devi[2], the factum of the case pertained to land attached to the property was gifted by from the Maharaja to Mani Ram; thereafter the Hon’ble Court reasoned, since Maniram executed a 'Will' and the legal facet is whereby a male Hindu under Mitakshara Law can dispose of his share in a joint property through testamentary succession only to the extent of his share was the judgment in the case
In Govindbhai Chhotabhai Patel v Patel Ramanbhai Mathurbhai[3], the issue was right, title and interest with respect to “self acquired property in Mitakshara Hindu Joint family”. It was held that, “The self acquired property comes in the hands of sons as not a Coparcenary property and rather it via individual capacity. The Court also relied on CN Arunachala Mudaliar case.”
While in another case of CN Arunachala Mudaliar v CA Murugannatha Mudaliar and Ors.[4], the matter involved gifted property given by father to his son, there were two types of properties, firstly, immovable property which was self-acquired property by father and some other movable property in the form of furniture and utensil along with cash which was also self-acquired by father. Though the trial court held that such property bequeathed to his son were ancestral with the Madras High Court observing that only certain property such as jewellery, other coparceners could have a say in it. The judgment of the Apex Court had two vital observation that firstly, if the gift deed has expressly provided that provision that son would acquire the property as 'the gifted property would not be an ancestral property in the hands of the son as gift from father of his self-acquired property'. Secondly, the Hon'ble Court observed that it not in all circumstances that the father has absolute right of disposition over self-acquired property and he is at his free will to bequeath that property to his son with certain terms and conditions and eventually, it may not be classified as ancestral property in which the donee acquire “coordinate interest”.
In Puttarangamma and Ors. v. M.S. Ranganna and Ors.[5], the Court held that, “when it pertains to sever and to separate from his right to property by proclamation, has to be unequivocal and with clarity communicated to all coparceners with his intention to separate”.
The author of this article is Samrat Bandopadhyay, Director, Central Government Civil Services Officer, Group A, Government of India, BE (nformation Science and Engineering), MBA (IIT Kharagpur), and presently pursuing LL.B in 3rd year at RGSOIPL (Law School), IIT Kharagpur.
[1] Arshnoor Singh v. Harpal Kaur and Ors. AIR 2019 SC 3098
[2] Lakshmi Chand Khajuria and Ors. v. Ishroo Devi AIR 1977 SC 1694
[3] Govindbhai Chhotabhai Patel v Patel Ramanbhai Mathurbhai AIR 2019 SC 4822
[4] CN Arunachala Mudaliar v CA Murugannatha Mudaliar and Ors. AIR 1953 SC 495
[5] Puttarangamma and Ors. v. M.S. Ranganna and Ors 1968 SCR (3) 119.
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