Property ceases to be joint immediately the shares are defined

In Fatechand Mahesri And Ors. vs State Of West Bengal And Ors, Calcutta High Court[ AIR 1972 Cal 177, 76 CWN 137] held :

 

It is well established rule of law that according to true notion of an undivided Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of the joint property that he — that particular member — has a certain definite share, one-third or one-fourth. Partition according to that law, consists in a numerical division of the property; in other words, it consists in defining the shares of the coparceners in the joint property; an actual division of the property by metes and bounds is not necessary. Once the shares are defined, whether by an agreement between the parties or otherwise, the partition is complete. After the shares are so defined, the parties may. divide the property by metes and bounds, or they may continue to live together and enjoy the property in common as before. But whether they do the one or the other, it affects only the mode of enjoyment, but not the tenure of the property. The property ceases to be joint immediately the shares are defined, and thenceforth the parties hold the property as tenants-in-common (See Mulla’s Hindu Law, 13th Edition. Article 322 page 372).

Partition is a severance of joint status and all that is necessary to constitute partition is a definite and unequivocal indication of the intention of a member of a joint family to separate himself from the family and enjoy his share in severality. But this intention has to be communicated to the other members of the family. In Raghavamma v. Chen-chamma, , the Supreme Court has held that there should be an intention, indication or representation of such intention and that what form that manifestation should take would depend upon the circumstances of each case.

IN CASE OF SALE TO A THIRD PARTY

Supreme Court In Sidheshwar v. Bhubneshwar[1953 AIR 487, 1954 SCR 177] Mukherjea. J. observed as follows:–

“The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.