What happens if coowners of a jointly- owned property want partition? Each owner then becomes the sole and absolute owner of a separated and clearly identifiable share in the property. In jointly owned properties, though each coowner can identify the proportion of his share, it is not possible to physically identify or precisely distinguish his share from other coowners’ shares. At times, a co-owner may want to sell his share and exit. However, since the share of a coowner in a jointly owned property is undivided, unidentifiable and cannot be clearly distinguished from the share of other coowners, selling one’s share would be difficult. As it is easier to sell one’s share in a property which is clearly identifiable, partition can be done to ascertain and demarcate such share.
Let us take an example of a two-storey building jointly inherited by two siblings. Each sibling would have inherited joint and undivided share equivalent to 50% in the entire property. However, if each sibling wants to have separate and 100% ownership, possession and enjoyment of one floor each, they can go in for partition. Here are a few things you should keep in mind if you are the coowner of a jointly owned property.
Mode of partition: If all co-owners of the jointly owned property mutually agree to and arrive at terms of the partition and distribution of shares in the property, they may execute a partition deed in writing which should clearly capture and identify the separated shares of each coowner by metes and bounds. Also, co-owners must remember that payment of stamp duty and registration fee is compulsory on a partition deed and registration of partition deed is mandatory. Further, though a risky proposition, an oral partition of immovable property is a legally valid and recognised mode of partition under law.
There may also be cases where one or only some coowners might agree to a partition, whereas the others might be against it. It is the right of a co-owner to be entitled to the demarcation as well as separate enjoyment and possession of his share, irrespective of approval or dissent of other co-owners.
As execution of a partition deed may not be possible in cases where other co- owners do not agree, persons going in for partition may file a suit for partition.
Continuing right: So long as one is co-owner of a property, one is entitled to demand the demarcation and separate enjoyment of his or her share at any time. This is because the right to seek partition is continuing in nature and is incidental to the right of ownership of a jointly-owned property. There is always a running cause of action for seeking partition by one of the cosharers and hence no limitation period for filing a suit for partition.
Nature of property: It may not be always possible to carry out physical partition of certain properties. For instance, it might not be possible to carry out physical partition of a flat in a reasonable manner. For some properties, physical partition may not be the best solution if it is likely to reduce market value of the property. In such cases, the best course of action would be to sell the property instead. Upon sale, the sale proceeds can be divided amongst erstwhile co-owners in the ratio of ownership that they had in the property.