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Question: A and his brothers B and C are members of a Joint Family under the Mitakshara School. A sues B and C for Partition. After the suit but before the decree A Dies, leaving a widow. Can the suit be continued, and if so by whom? If not, whether B and C will get A’S Share by Survivorship? Discuss with reasons.
Find the answer only on Legal Bites. [A and his brothers B and C are members of a Joint Family under the Mitakshara School. A sues B and C for Partition. After the suit but before the decree A Dies, leaving a widow. Can the suit be continued, and if so by whom? If not, whether B and C will get A’S Share by Survivorship? Discuss with reasons.]
Answer
In the present factual matrix, A, B and C are all brothers and part of a common Joint Hindu family governed by the tenants of Mitakshara Law. The Partition suit is filed by A against B and C. Under the Mitakshara School of Law, if a person files a suit for partition, it shows an unequivocal and clear intention on his part to partition. This immediately results in the severance of the joint status of the family, even before the actual suit is decided in the court of law. The decree by the court will however bring the formal and actual division of property.
It is clear by the above reasoning that the institution of the suit has resulted in the severance of status. Therefore, A’s share will not pass by survivorship to B and C but it will descend to his widow as his legal heir and thus she will be entitled to the share and for continuing the suit as well.
Case Laws
Rukhma Bai v. Laxmi Narayan, AIR 1960 SC 335
The court had observed in this case that it is a settled principle that any adult coparcener may sever his interest by an equivocal communication of his intention to partition. A coparcener who expresses his intention to sever the status need not give any reason for his intention.
Giraja Nandini v. Bijendra, AIR 1967 SC 1124
The Apex Court in this court held that a partition can be made by a definite unambiguous declaration by any coparcener with the intention of separating himself from the family. Partition may be affected by the institution of a suit by submitting the dispute as to the division of properties.
