Partition of property

Partition

Usually, joint properties are partitioned between the joint owners which amount to severance of the joint interest in the ownership of the common property. In order to avoid any quarrels between the family members or to maintain the harmony and the dignity of the family, a decision shall be arrived to by the members of the family to partition the common properties and the decision is called family arrangement. If the decision is arrived as a result of quarrel and partition is made as settlement, the decision is called as family settlement. Because of similarity in name, it is often mistaken the partition for settlement.

Joint owners of property by intestate succession or joint purchase shall make partition of property. Each of the co-owners owns equal or unequal shares proportionate to their interest and which are undivided and not physically unascertainable.

The portioned property shall become the self acquired property of each party of the partition. If two or more persons jointly purchase a property, each person shall be a joint owner of the property and owns a undivided share proportionate to his or her investment. A property can be jointly inherited by legal heirs of deceased owner of the property. It may be noted that a grandson can’t directly be owner of the property or legal heir of his grandfather, if his father is alive.

The partition deed requires minimum of two persons (parties) whereby the common property is partitioned and the interest of each party is severed from the joint interest. That is to say every party is already owner of his/ her share. As such, partition deed can be made by and between the co-parceners, partners or joint/ co-owners only and it cannot be made in favour of any third person.

Usually, no condition would be made in partition deed as in the case of settlement deed, however section 10 of Transfer of Property Act permits the parties to impose certain type of restriction in family arrangement. A co-owner’s share in a property is inheritable and transferable.

The consideration for a family settlement or arrangement is the expectation  that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations and after that consideration has been passed by each of the disputants. The courts held that the consideration for the family settlement being compromise between parties.

Partition amounts to severance of joint ownership and hence it has to be registered compulsorily and the stamp duty and registration fee have concession in case of family arrangement.

Family members, in general, means mother, spouse, son, daughter, grand children, wife of predeceased son. However, various state government made different stands in defining and listing the relations in the family members.

Partition and Settlement

Usually partition deed is made between joint owners/ coparceners to divide their share of interest from the common/ joint interest over the property. Thus partition is severance whereas the settlement is conveyance.

In partition, each party is already owner of his/ her share as governed by succession or partnership terms, whereas in settlement, the claimant shall own and possess the property and do not have any interest previously.

In both the cases, claimant shall become independent absolute owner.