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 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.
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.