A partition can also be effected under a settlement or oral understanding - partition between parties as early as on 1989 - daughter not entitled to partition

Citation

AIR 2023 SC 3873

AIR Online 2023 SC 632

2023(5) CTC 79

The Supreme Court observed that a partition can also be effected under a settlement or oral understanding. 

There is no prohibition to effect a partition otherwise than through an instrument in writing by duly complying with the requirement of law, the bench of Justices Bela Trivedi and SV Bhatti said.

In this case, the plaintiff, a woman, filed a suit praying for a declaration that she is a coparcener by amended Section 29A of the Hindu Succession Act, 1956. She also prayed for partition and separate possession of one-third in the plaint schedule. The Trial Court dismissed the suit and later the Madras High Court dismissed her appeal on a finding that the property is not available partition as of thedate of coming into force of Section 29A

Before the Apex Court, the issue was whether the plaint schedule has the colour of coparcenary as of 25.03.1989 and is available for partition.

In this context, the bench observed:

"We are alive to the principle that there is no prohibition to effect a partition otherwise than through an instrument in writing by duly complying with the requirement of law. In other words, the division may also be effected under a settlement or oral understanding."

The bench observed that the fact that the plaintiff has earned the legal standing of a coparcener cannot, by itself, would be a reason to accept the prayer for partition unless the plaintiff discharges the burden that the partial partition did not affect the coparcenary rights. The court, while dismissing the concluded that the plaintiff still failed to demonstrate that the plaint schedule continued to be a coparcenary available for partition.

H Vasanthi vs A. Santha (D) | 2023 LiveLaw (SC) 655 | 2023 INSC 731

Partition - There is no prohibition to effect a partition otherwise than through an instrument in writing by duly complying with the requirement of law. In other words, the division may also be effected under a settlement or oral understanding.

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