What Is Partition Of Property?

Reputation. Respect. Result.

Date: 2021-06-06
Category: Property Law


The assertion and enforcement of property rights have, historically, been essential to the development of society as a sustained, and prosperous, institution. It should, as such, not be surprising to note that human ingenuity, with the march of time, has come up with several nuances, of a judicial flavor, to cater to the efficient enforcement of the same. In the judicial structure of the present day, the partition is one amongst the arsenal of prescribed fixtures available for the resolution of issues pertaining to property management.

What is Partition of Property?

The term “Partition of Property”, in its legal aspect, alludes to the initiation of a court proceeding aimed at enforcing the division of property, owned jointly by two or more coparceners. Such a division can either be through physical delimitation of the immovable asset or through the sale of the same, with subsequent division of the proceeds, from such a sale, amongst the relevant coparceners. Initiation of such an act is through the filing of a partition deed.

Partition of Property In India- THE NUANCES

In India, the possibility of a partition of jointly owned property is afforded legal validity through the provisions outlined in The Partition Act, 1893. A partition amongst coparceners can be mutual. In the absence of such a possibility, the desirous coparcener can seek judicial remedy for enforcement of the same.

In India, following the concept of the Hindu Joint Family, the partition is a process that allows for the termination of the joint family status amongst coparceners. Such a partition of property is governed by the statutes laid down in the Hindu Partition Act of Property, 1892. For a partition within a Hindu joint family, the Hindu Succession Act, 1956, is ascribed to.  Prior to the amendment of the latter is 2005, the partition laws pertaining to a male and a female descendant were different. The amendment sought to dispel this disparity. A female descendant, irrespective of her marital status, now exercises the same rights as a male descendant in a Hindu Undivided Family (HUF), pertaining to the partition of property in India.

Partition assumes possibility only in instances of coparcenary, or ancestral, property. It is only lineal descendants, up to three generations, who can assume coparcenary roles in ancestral property, along with the eldest family member. A coparcener can, however, transfer their claim to a third-party. Also, such an individual can initiate a partition suit aimed at a specified delimitation amongst coparceners, but not the constituent members of the family.

Furthermore, if such a coparcener has acquired any supplementary property through their own enterprises, such an asset cannot be made the subject of a partition deed prior to their death. Post expiration of such an individual, the self-acquired property is incorporated into the ancestral property in the absence of a relevant will. The individual, through their will, can however bequeath such an asset on any person, or body of persons, as they deem appropriate. In the latter scenario, the self-acquired property will not be incorporated into the ancestral property.

The partition of property in India, for the ancestral property of a joint family, is effectuated through the execution of a family partition deed. Given religious and cultural diversity, the Indian legal framework has clearly demarcated provisions pertaining to inheritance and property partition that assume pertinence given the religious identity of the concerned joint family. The laws governing such acts are, in certain aspects and considerations, different for Hindus, Muslims, Sikhs, or Christians. The differences exist to make scope for the variations in the customs and ideals that are immanent to the respective religions.

The court has the right to decide the viability of physical delimitation or sale of the property, in the case of partition, after a critical consideration of the facts and figures that are pertinent to the case. Furthermore, the costs of the proceeding are equitably allotted, for disbursement, among the parties to the dispute, at the discretion of the court.

Partition Suit – A PROCEDURAL OVERVIEW

Property acquired through inheritance usually involves coparcenary. At times, vested interests can result in one coparcener seeking to undermine the rights of the other. Such a scenario can necessitate the legal delimitation of the asset, amongst the credible claimants, in a bid to avoid a further clash of interests. The initial, and preferable, the possibility would be that of a mutual negotiation amongst the coparceners. Failing in this, the intervention of law assumes the necessity for resolution of the said dispute. The latter scenario demands the filing of a lawsuit. Such a lawsuit is referred to as a Partition suit.

A Partition suit involves the assimilation of the pertinent facts and subsequent drafting of a partition deed. The partition deed outlines the terms of the agreement, clearly specifying the delimitation and the resulting constituent shares for every respective claimant to that property. Such a specification, as already mentioned, can be arrived at through amicable negotiation or through the injunction of a court, as and when necessary.

In both the scenarios, however, the partition deed has to be approved by the court and subsequently registered at the office of the relevant Sub-registrar of the area wherein the contested asset is situated. The partition deed assumes legal validity once it is registered after a clear statement, on stamp paper, of the specifics pertaining to each claimant and their shares, and the date of the said partition.

Pertinent Pragmatic Counsel

Reliance on the court machinery for resolution of disputes pertaining to property partition inevitably result in the incurrence of expenses of both monetary, and emotional flavors. As such, the desirable scenario should be the possibility of successful negotiation through mutual compliance. The intervention of the court, though necessary at times, should be considered as a last resort. Such a path of action can, indeed, force a reconsideration of the existent facts for all the concerned parties. However, it also affords the possibility for the straining of familial ties.

It should be kept in mind that the right to partition is an absolute right for a coparcener to a property unless the said individual has expressly denunciated their right. As such, in a scenario where a coparcener is afforded a detrimental stance in the coparcenary, the possibility of partition serves as an instrument to deter the unethical exercising of vested interests.

The right to partition deserves critical analysis as an instrument for property management, not just for the regulating effect it can have on a coparcenary, but also because it can serve as an efficient tool for the assertion of rights, and the pursuit of success in individual endeavors.

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