Properties and human beings are inseparable. With progress
and social change over the ages the urge to own property, wealth has acquired
demonic proportions. In the present day world, immovable properties are the
most valued assets one can possess.
The desire to own material possession reared its head in the
inquisitive mind of the Stone Age man. Thus women, children came to be hisfirst personal assets followed by immovable properties. While literacy and
social outlook have elevated the status of women and children, there has been
no change worth the name as to the status of immovable property as the personalasset of the human being. So long as this state of affairs continues, problems
relating to property transfer will persist. From Stone Age to cement age, it
has been a long haul.
Partition is division of property held jointly by co-owners.
When a property is divided each member becomes the sole owner of his portion ofthe property. Each divided property gets a new title and each sharer gives up
his or her interest in the estate in favour of other sharers. Therefore,
partition is a combination of release and transfer of certain rights in the
estate except those which are easements in nature.
Partition is neither a gift nor a transfer of property. It merely
breaks a joint right into several rights. It is not acquisition of property orexchange of property. It is a combination of release and conveyance of the
rights of the property in favour of individuals. And therefore it can be
effected orally. Partition is not transfer but when it assumes the form of transfer,the intention may be to hoodwink the creditors.
The basic character of joint Hindu family is that eachmember has inherited title to the property by birth. Each member has joint
title to the entire property and that joint enjoyment of the title is converted
by partition into separate title of the individual co-owner for his enjoyment.
Therefore, it is now an established fact that partition is not transfer, buttransformation of joint property.
There are some properties which cannot be dividedphysically. If physical division is not possible, partition can still be
effected by paying cash or other assets to a sharer in lieu of his or her share
in the property. Such situation arises when the division of an estate is
considered to be dangerous and unreasonable and when such division dilutes the inherent
value of the property, or when the immovable property is too small fordivision.
The instrument of partition is a document by which the
co-owners of a property agree to divide the property among themselves by oralagreement or written agreement or by arbitration or through court. If a document
of release shows that the executants are to get cash or other assets, the
document is an instrument of partition. The basis of partition is equality. The
parties shall share the property equally.
If there is no agreement among the co-owners for amicable
division of the property, the only alternative is to sell the property by
mutual consent or by court decree and distribute the sale proceeds among the
co-owners. Any of the co-owners may also enforce partition through Court.
In a partition suit a court may have decreed partition ofthe property in the interest of the co-owners. But if it is found that the sale
of the property and distribution of the proceeds to the co-owners is more
beneficial, the court can at the request of the shareholders direct sale of theproperty and distribution of the proceeds to the co-sharers.
There are three types of co-owners: Joint tenants or tenants-in-common;
Hindu Joint Family owners or co-partners; partners of a partnership firm.
Under the Hindu Law in general everyone being a co-owner in
a joint ownership has a right to claim his share and such right cannot be
denied to him if the property is held as joint tenants. Since joint tenancy is unknownto Indian law, there is not much difference between joint tenancy owners andtenants-in-common.
Christians and Muslims hold properties as tenants- in-common
or as joint tenants and partition of such immovable property can happen by
mutual consent or by partition deed or by court decree or arbitration.
Partition in Hindu law covers two aspects. One is the division
of the status of the members and the other is the division of the joint familyproperty. In the former ca e, the members are divided according to their
standing in the joint family and in the latter case division of joint family propertyinto separate shares. Share of a member depends on the status he enjoys in the
family. These are interlinked.
Partition must be according to law. If a minor gets less
shares than he is entitled to in law, the partition is defective and he can
re-open the same when he attains majority. If a member gets more than his sharein a property, the excess received will be treated as a gift.
It is not necessary that all co-owners agree to partition.
When a member desires partition, the property is divided into two portions one
for the separating according to his status and share and the rest jointly held by
others. Though oral partition is allowed under Hindu Law, it is not preferableas it may give rise to disputes particularly with respect to immovable properties.
It is advisable that oral partition should be reduced into writing. Also, the
Income Tax Act does not recognize oral partition of a Hindu Family property unless
the Income Tax Officer is satisfied with the facts and this is possible only
when it is recorded in partition deed.
Effects of Partition
When a property is divided into more than two parts, the
co-owners of the different portions shall agree to hold their portions
separately as absolute owners and each of them shall make a grant to release
his share from portions given to others.
Necessary covenants in a partition deed are about encumbrances
on the property, quiet enjoyment, custody and production of title deeds,
easements of necessity, payment of rent and taxes and performance of other conditions
of lease, if any, etc. Partition of joint property is not an exchange. If it is
reduced into writing, it must be registered in the case of immovableproperties. Deed of partition requires registration.
Mere writing of previous partition does not require
registration. Mere list of properties allotted to different co-owners does notrequire registration. Unregistered deed of partition though not admissible in
evidence to prove the fact of partition, can be used to prove that a particular
property was allotted to a particular co-owner as his share. Partition means
collapse of joint ownership. It destroys the harmony of joint ownership and of possession.
A large property falls into pieces over a generation or two.
The land is very much there in bits and pieces in the name
of different owners. Stamp duty The Stamp Duty payable on partition varies from
State to State. In Kamataka, it depends on nature of property. In case ofpartition of movable property, it is Rupees Two Hundred and Fifty for eachshare. If the property is converted for non-agricultural purpose or meant for
non-agricultural use, it is Rupees One Thousand for each share within
jurisdiction of Municipal Corporation, Urban Development Authority, Municipal
Councils or Town Panchayats and Rupees Five Hundred per share in other areas.
The partition of agricultural land attracts stamp duty of
Rs. Two Hundred Fifty for each share. In case an agreement of partition is
executed and the partition follows in pursuance of such agreement, the stamp
duty payable on partition deed is reduced to the extent of duty paid on
agreement; but shall not be less than Rupees Fifty. The partition should not be
mistaken with partnership. Partnership is coming together of persons, whereas partition
is parting of persons.
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