The term partition is legally defined as the process of dividing real or personal property between co-owners; it simply implies that partition results in individual ownership of the interests of each co-owner. More often than not, a partition deed is permitted and executed when there is discord among the co-owners and when they are not able to agree on the use, management, improvisation or disposition of the property. In such situations, partition is often considered as the most practical solution.
Having said the above, partition is an intricate subject and one needs to know the inside out of the involved legalities before taking the plunge into it. Given below is a brief insight on how to partition a property between co-owners.
Determine if you have the right to partition
So, you are one of the co-owners of a property that is in dispute and you want your share, but do you have the right to partition? In order to know, you must gather all the documents and records of the property such as title deed, tax records and maintenance records, and check with the lawyer if you can initiate a partition.
Different types of partition
There are two types of partition in India – voluntary and compulsory.
In voluntary partition, the co-tenants consider the individual property needs of each other and accordingly divide the property among themselves. In this type of partition, all co-owners gets the ownership of a part of property and then ceases to have interest in other parts of the partitioned property. The co-tenants can even agree and sell the property to share the proceeds of the sale. A voluntary partition is legal and effective, unless one of the co-tenants challenge the contract and make allegations of fraud.
Conversely, in compulsory partition, also known as judicial partition, co-tenants disagree on their individual rightful shares or on the value of the property. In such cases, an appraiser or an arbitrator (typically, a disinterested third person) to partition the property and to allot property shares accordingly to the co-tenants. More often than not, the shares of co-owners are not equal, especially as the allotment of property share depends on their investment which is mentioned in the purchase document.
How to partition?
In the case of partition by mutual consent, the co-tenants must execute a partition deed. Ideally the deed should be registered in the office of the sub-registrar of the locality in which the property lies. Each co-tenant needs to pay a stamp duty of Rs 1,000 for getting their share of property registered. The registration fee for each share is Rs 500. In the case of a judicial or compulsory partition where one of the co-tenants is disagreeing, a partition suit is to be initiated in a court of law by the co-tenant who is demanding the partition. The partition deed can be then executed depending on the decision of the court. In any case, the partition deed should be drafted in a clear and unambiguous manner.
Needless to mention that irrespective of the type of partition, a partition deed creates new owners of individual shares of property, and the registration of the property gives the deed a legally binding effect.