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.
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 property 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.
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