partition of property

Co-owners’ share in property is inheritable and transferable, explains Ashish Gupta

Partition is division of a joint property among several persons, so that each person gets a share and becomes the owner of the share allotted to him. It is generally effected by dividing the property according to the shares to which each of the parties is entitled in law applicable to him or her. Each divided property gets a new title and each sharer gives up his or her interest in the property in favour of other sharers. Therefore, partition is a combination of surrender and transfer of certain rights in the estate except those, which are easement in nature.The new transferee can then further deal with the property in any manner as he or she may so desire.

With nuclear families on the rise, property partition is a painful process attached to it. Partition of property refers to division of property amongst the legal owners/ heirs. The process is quite complicated. It is a common cause of dispute amongst families - irrespective of the fact of which strata of society they belong to. The common disputed issues relate to what can be partitioned - father's property, inherited property, ratio of division, who are eligible, etc. It is to be noted that the partition of property is also subject to the laws of inheritance applicable to a particular person. The laws are different for Hindus and Muslims.

The new owner can further sell, transfer, exchange, gift or deal in any other manner with the property as the absolute owner of the property. More than one person may jointly own the same property. All such persons would have either equal or certain percentage of rights to possess and enjoy the property. An important ingredient of co-ownership is undivided share. Though all the owners own equal or a part of the whole property their respective shares are not physically ascertainable with definitive boundaries. The shares are undivided.

Share of the co-owners' in the property need not necessarily be equal. It depends on their share, investment in the property as detailed in the purchase document. In the absence of any such details as to the share of investments made for acquisition of property in the purchase document,it is presumed in law, that all the coowners' have equal undivided share of interest,right and title in the property. This is provided under section 45 of the Transfer of Property Act. The co-owners' share in the property is inheritable and transferable. The share of investment of each co-owner in the property and their undivided share in right, interest and title in the property should be clearly and explicitly identified. This would help to avoid problems in transfer, alienation, inheritance and taxation.

The partition can be in an agreed ratio or as per the law of inheritance applicable to them. In case the partition is by mutual consent, the co owners execute a partition deed. The partition deed is required to be registered with the office of the subregistrar's office of the place where the property is situated as in case of any other registration.

In case the co-owners' are not agreeable to a partition of the property and only one or more of the coowners' are desirous of partitioning the property, then the mode of partition is a bit different and a case, a partition suit is required to be filed in the appropriate court of law.

(Source: Times Property)