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 possession 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, as long as 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 the 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.
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 favour of individuals. And therefore it can be
effected 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.
There are three types of Co-Owners; Joint tenants or
tenants-in-common; Hindu Joint Family owners or Co-Parceners; 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.
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 given 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 the 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
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.
The Stamp Duty payable on partition varies from State to
State. In Karnataka, it depends on nature of property.
In case of partition of movable property, it is Rupees Two
Hundred and Fifty for each share.
If the property is converted for non-agricultural purpose or
meant for non-agricultural use, it is Rupees One Thousand for each share within
jurisdiction of Municipal Corporation, Urban Development Authority, Municipal Councils
or Town Panchayats and Rupees Five Hundred per share in other areas.
The partition of agricultural land attracts Stamp Duty of Rs.
Two Hundred Fifty for each share. If the property involved in partition is
combination of any categories mentioned above, the Stamp Duty is maximum of the
duties prescribed. In case an Agreement of partition is executed and the
partition follows in pursuance of such Agreement, the Stamp Duty payable on
partition deed is reduced to the extent of duty paid on Agreement; but shall
not be less than Rupees Fifty. The partition should not be mistaken with
partnership. Partnership is coming together of persons, whereas partition is
parting of persons.
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