Where property is indivisible by its very nature, e.g., animals, furniture, etc., it may be sold and its value distributed; or it may be valued and retained by one coparcener and the amount credited to his share. In the case of a family well it may be enjoyed by the coparcener in turns or jointly.
Family idols and places of worship are not divisible. They may be held by the members by turns, or the court may direct possession to be given to the senior members with liberty to the other members to have access to them for the purpose of the worship.
If a stranger purchases the share of a coparcener in a common family dwelling house, he is not entitled to joint possession and can bring a suit for partition. If he brings a suit of partition then the Partition Act of 1983 allows that other coparceners can purchase the share in the hands of the stranger on a price to be fixed by the court. This has been done to safeguard the conveniences of the family. If two coparceners are ready to purchase the share separately then the highest bidder will get the share.
In order to determine what property is available for partition, provision must first be made for: (1) joint family debts which are payable out of the joint family property, (2) personal debts of the father not tainted with immorality, (3) maintenance of dependent female and disqualified heirs, and (4) for the marriage expenses of unmarried daughter. When partition takes place between the sons after the death of the father, provision must also be made for the funeral ceremony of the widowed mother.
Every adult coparcener is entitled to demand and sue for partition of the coparcenary at any time. This is the present law. But the Shastric Injunctions are:
1. There should be no partition between the sons during the life-time of the father. 2. There should be no partition till the mother has passed the child bearing age. These are only recommendatory rules now. According to the Bombay High Court without the assent of the father who is joint with his own father and brothers a son cannot demand to partition. If the father is separate, the son can enforce a partition. The other High Courts do not recognise any such exception.
When a suit is brought on behalf of a minor coparcener for partition, only in the case of benefit to the minor the court should pass a decree for partition.
A son in the mother’s womb at the time of partition is entitled to partition when born after the partition when no share was reserved for him at the time of partition.
A son begotten and born after the partition is, however, not entitled to reopen the partition.
When an auras son is born after the adoption of a son, the adoptive son does not take equally to auras son.
A purchaser of the undivided interest of a coparcener can demand partition.
A female cannot demand partition herself but where a partition takes places she is entitled to receive a share according, to Hindu Law.
Where the partition takes place between the father and the son, the wife takes a share equal to that of a son.
Where the partition takes place between the sons at their instance the widowed mother takes a share equal to that of a son.
Where the partition takes place between the grandsons at their instance, the grandmother takes a share equal to that of a grandson.
But according to Dayabhaga law, a father is absolute owner of the property so there cannot take place any partition between the father and the son. So a wife cannot take any share in a Dayabhaga family.
The widow of a deceased Dayabhaga coparcener or his daughter in default of a male issue represents a share of their husband or father at the time of partition. They are entitled to partition though they do not constitute a coparcenary.