Property Plus Chennai Hyderabad
Demands of PARTITION
SRINATH SRIDEVAN
| If a partition is effected orally, it can be subsequently recorded by a memorandum. If effected in writing, then, it requires registration. |
In India, until recently the term "partition" had come to be synonymous with the wrenching separation of near and dear, with wailing mothers and weeping wives, with stone faced men carrying trunks of belongings into a waiting vehicle.
More recently, however, a partition has come to be recognised as a very effective means of dividing properties amongst siblings or cousins who no longer feel the need to remain/reside in close proximity to one another.
By metes and bounds
A partition is a means by which several joint owners of a piece of property divide that property as between themselves into separate demarcated and delineated extents. Such partitions are known as partitions "by metes and bounds".
A partition of the properties of a joint family may be effected either orally or in writing. If a partition is effected orally, it can be subsequently recorded by means of a memorandum. If a partition is effected in writing, then, it requires registration.
An instrument of partition is defined by the law as any instrument whereby co-owners of any property divide or agree to divide such property in severalty. The definition of this term is very wide and has been taken to include within its fold even a partition decree passed by a civil court, or an award of partition by an arbitrator. It would be useful to remember here that the memorandum or record of a pre-existing oral partition would not fall within the scope of the term "instrument of partition", and would not therefore be liable for incidence of stamp duty.
An instrument of partition is required by law to be stamped. The stamp duty payable on an instrument of partition would depend upon the value of the largest of the separated shares involved at the partition.
For the sake of those readers who are interested in legal niceties and abstruse expositions of law, I add a footnote here that the Madras High Court has in one judgment held that the stamp duty payable as above is not upon the market value of the property suffering partition, but is upon the value set forth in the instrument itself. I also add that the correctness or otherwise of this judgment is awaiting a final decision by a Division Bench (this is the term used to refer to a Court having two Judges, and therefore, superior adjudicatory power to that of a Court having one Judge alone).
Partition through Court
Now, all of the above can be effected if the co-owners agree amongst themselves to partition the properties. What is to be done if one or more co-owners simply refuses to acquiesce in any kind of process for partitioning the properties?
The answer lies in the Courts. If you are being deprived of your lawful share in your father's or mother's property, and if your siblings are taking your share as well, or even a portion of your lawful entitlement, then, if all avenues and means of amicable resolution have failed, then, you can approach the Courts for redressal.
In such cases, you would file a suit for partition and separate possession of your share. The Government has, in its wisdom, granted a concessional court fee tariff for partition suits filed by persons who are in possession of the properties sought to be partitioned. Since a co-owner of properties is deemed to be in joint possession of all properties in which he or she has a co-ownership right, most people approaching the Court for the relief of partition would be entitled to the benefit of the concessional fee tariff.
While filing such a suit for partition, you would also be entitled to ask the persons who had been denying you of your lawful share, to compensate you for the period that you had been deprived of your lawful share. This compensation will be determined by the Court separately, once your lawful share has been ascertained. The name given for such compensation is "mesne profits" (pronounced as mean).
If you succeed in having your share ascertained, then, the Court will either carve your share out of the joint properties, or if such carving out cannot reasonably be done, then, the Court will sell the properties and give you your share in cash.
There are some exceptions to the above:
First, if the property in question is the sole dwelling house of the family and a male co-owner is in possession thereof, then, a female co-owner cannot seek partition of this dwelling house, but can instead seek a right of residence therein.
Second, when the property is being sold, the right of first refusal would be given to the co-owners.
These then, briefly put, are the rules governing partitions.
However, such demands for partition should, as I have said earlier, be a last resort and never the first option. Always keep any disputes within your family and resolve it internally. Remember - The less you spend on Courts and lawyers, the more there is for you to divide amongst yourselves!
(The author holds a Masters degree in Corporate Law from New York University and is a partner in the firm HSB Partners, Chennai)
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http://www.hindu.com/pp/2005/05/14/stories/2005051400300800.htm
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