Overview

A partition deed for a property is executed to divide the property among different people usually among the family members. A partition is a division of a property held jointly by several persons, so that each person gets a share and becomes the owner of the share allotted to him. It is done by dividing the property according to the shares to which each of the parties is entitled to in law as applicable to them. Each divided property gets a new title and each sharer gives up his 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 transferee can then further deal with the property in any manner as he may so desire. He can sell, transfer, exchange, or gift the property as its absolute owner. In case a partition is by mutual consent, a partition deed is executed by the co-owners. The partition deed is required to be registered at the office of the sub-registrar of the place where the property is situated as in case of any other registration. The stamp duty payable in such a case is 2% of the value of the property partitioned, which is calculated as per the circle rate of the area.

More than one person may jointly own a property. All such persons will have either equal or certain percentage of the rights to possess and use the property. One 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. The shares of co-owners of a property need not necessarily be equal. It depends on their 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 the property in the purchase document, it is presumed in law, that all the co owners have equal undivided share of interest, right and title in the property.

A co-owner’s share in a property is inheritable and transferable. The share of investment of each co-owner in the property and the undivided share in right, interest, and title of the property should be clearly and explicitly identified. This helps avoid problems in transfer, alienation, inheritance and taxation. In case the co-owners are not agreeable to a partition a property and only one or more of the co-owners want the property to be partitioned, the mode of partition is a bit different. In such a case, a partition suit is required to be filed in the appropriate court of law.

A partition deed should be executed on a stamp paper and drafted in a clear and unambiguous manner. The share of each person should be clearly and explicitly specified. A partition deed creates new owners of a property and needs to be registered at the office of the sub-registrar to give it a legal and binding effect. The deed should in particular mention the date from which the partition is effective. The names of the parties and their respective shares should be specifically mentioned.

Partition of property is also subject to the laws of inheritance applicable to a particular person. Different laws can apply. An interest in a concessionary property can also be Willed away. This share goes out of the purview of ancestral property. If a father dies leaving behind self-acquired property, his son will inherit it absolutely. The grandson cannot claim it as ancestral because it was inherited under the Hindu Succession Act.

Name : Mahesh Joshi

Law Firm Name : J B & ASSOCIATES -SOLICITORS & ADVOCATES

Country : India

City : Kolkata

State : WEST BENGAL

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