LE­GAL REME­DIES

HT Estates - - Front Page - Su­nil Tyagi

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.

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