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 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 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.
What is Partition?
Partition is division
of property held jointly by co-owners.When a property is divided each member becomes
the 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 ca e, the members are divided according to their 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 according to his status and
share and the rest jointly held by 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 that oral partition
should be reduced into 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 given to others.
Partition of joint property is not an exchange.If it is reduced into writing, it must be
registered in the 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.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 Karnataka, it depends on nature of property.In case of partition of movable property, it is Rupees Two Hundred and Fifty
for each share.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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