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 possessions reared its head in the inquisitive mind of the Stone Age man. Thus women, children came to be his first 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 personal asset of the human being. So long 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:
Partition is division of property held jointly by co-owners. When a property is divided each member becomes sole owner of his portion of the property. Each divided property gets a new title and each sharer gives up his or her interest in the estate in favor 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 or exchange of property. It is a combination of release and conveyance of the rights of the property in favor of individuals. And therefore it can be affected 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 each member 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, but transformation of joint property.
There are some properties, which cannot be divided physically. If physical division is not possible, partition can still be affected 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 for division.
The instrument of partition is a document by which the co-owners of a property agree to divide the property among themselves by oral agreement 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 of the 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 the property 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 coparceners; 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 unknown to Indian law, there is not much difference between joint tenancy owners and tenants-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 family property. In the former case, the members are divided according to heir standing in the joint family and in the latter case division of joint family property into 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 share in 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 one according to his status and share and the rest jointly for the others. Though oral partition is allowed under Hindu Law, it is not preferable as it may give rise to disputes particularly with respect to immovable properties. It is advisable oral partition should be reduced in writing (palu patti). 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 give 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 case of immovable properties. Deed of partition requires registration. Mere writing of previous partition does not require registration. Mere list of properties allotted to different co-owners does not require registration. Unregistered deed of partition though not admissible in evidence to prove the fact of partition, cannot 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.
FORMORE
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