Partition of Property
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What is a partition suit?
Partition essentially means division of a property owned jointly among its co-owners. In general parlance it is a division of immovable properties such as a house, agricultural land etc., however, at times, a partition suit may involve partition and distribution of personal properties such as stocks, gold, jewels, valuables etc. Thereby allocating exclusive ownership of the property to each person according to their entitlement of share.
A divided property is then recognized as separate properties and new title for each owner is confirmed. Partition thus means both surrendering of certain rights as well as transfer. One must bear in mind that rights to easement are non-transferable in nature and cannot be partitioned. Once the property is transferred vide partition, the new owner is the absolute owner and can deal with the property as per will without having to look upon to anyone for its transfer, sale, will etc.
Various Methods of partition
Deed of Partition
With the mutually consent of the co-owners a deed of partition can be formulated and executed between them thus saving, time, cost, and all legal hassles.
- The deed of partition has to be made on a stamp paper of proper value.
- It must be registered with the sub-registrar of competent jurisdiction (which is the place where the property is situated). Once the registration is effected, the deed becomes legal and binding.
Deed of Family Settlement
A deed of Family Settlement can also divide the property mutually amongst the members of the joint family.
Unlike a deed of partition, a Deed of Family Settlement can be drafted on a piece of paper and does not require registration and stamping to gain legal and binding effect.
- Since a deed of family settlement did not call for procedural compliance to gain legal and binding value, there had been a surge in frivolous family settlements been made and acted upon. In light of the issue, the Hon’ble Supreme court laid out some guidelines in Kale & ors. vs. Deputy Director of Consolidation & Ors. (1976)
“10. In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be reduced into the form of the following propositions.
– The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
– The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
– The family arrangement may be even oral in which case no registration is necessary;
– It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum pre pared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of s. 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
– The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property ‘It which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favor of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
– Even if bona fide disputes, present or possible, which may not involve legal claims, are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
Read the full judgment – Kale & ors. vs. Deputy Director of Consolidation & Ors. (1976).
Thus, it can be construed that even though a family settlement does not require a set of procedural compliance, yet, it requires careful drafting of clauses with equity and fairness woven as its intrinsic fabric. The agreement must not have concealments, falsities and should be based on verifiable specifics.
Contested Partition via Suit for Partition
When co-owners do not agree in fair recognition of one another’s rights and a partition accordingly, and only one or more of the co-owners are aggrieved and desirous of their share being partitioned, in such a case a suit for partition can be led. A partition suit is to be filed before the civil court of competent jurisdiction. If the co-owners in one property are related members of the family and have interest in several other properties coming by way of inheritance, then the partition can be called on metes and bounds and in ratio to their share as per the law of inheritance.
Procedure for filing a suit for Partition
It is mandatory to serve a legal notice upon the other co-owners demanding the partition of the property. At this stage alone, a call for pre-litigation mediation can be made to explore the possibility of amicable resolution. However, if the legal notice is met with silence, or if the mediation fails, then the demanding party can institute a suit for partition supported by relevant annexures pertaining to the ownership and share.
When Property cannot be Partitioned
If the adjudicating Court rules that that the impugned property is of a nature that partition cannot be physically effected without severely affecting the usability of the property, that is to say that the court concludes that although partition is a just right and requirement of the demanding party, yet, could not be granted for it cannot practically be effected without injuring the property and its usability for all the parties, thereby, yielding no good for any party, in such a case, the court may order an inquiry while passing a preliminary decree appointing a Local Commissioner to inspect and evaluate the property and submit a report before the Court for further adjudication of the matter. The principles of moiety and owelty can also come into play – depending on the intellect and caliber of counsels handling the matters.
IF you are a Non-Resident Indian, who has been ousted from the possession of a property which comes to you as a matter of your right of inheritance, you should consider approaching the expert property lawyers of NRI Legal to have your matter evaluated, get the right advice and adopt the right recourse to law.