How to han­dle prop­erty par­ti­tion am­i­ca­bly

Chances of dis­putes are re­duced if a par­ti­tion deed clearly and un­am­bigu­ously lays down the ex­tent and na­ture of an in­di­vid­ual’s share

HT Estates - - HTESTATES - Su­nil Tyagi

Par­ti­tion es­sen­tially refers to the process of sep­a­ra­tion and phys­i­cal de­mar­ca­tion of prop­erty jointly owned by two or more in­di­vid­u­als. To en­sure that the process of par­ti­tion is smooth and free of dis­pute, it is im­por­tant to be fa­mil­iar with the le­gal process.

Mode of par­ti­tion

An in­di­vid­ual who, at present, owns an un­di­vided share in a jointly-owned prop­erty is en­ti­tled to de­mand for sep­a­ra­tion of his/her share, at any time, ir­re­spec­tive of whether or not the other joint owners also agree to a par­ti­tion.

In case the in­di­vid­u­als who jointly own a par­tic­u­lar prop­erty mu­tu­ally agree on an am­i­ca­ble par­ti­tion, a par­ti­tion deed may be ex­e­cuted by all. Ex­e­cu­tion of a writ­ten par­ti­tion deed, which is clear and un­am­bigu­ous in lay­ing down the ex­tent and na­ture of each in­di­vid­ual’s sep­a­rated share, un­doubt­edly re­duces the chances of fu­ture dis­putes. Fur­ther, a par­ti­tion deed is re­quired to be duly stamped and reg­is­tered.

How­ever, in case one/some joint owners refuse to carry out an am­i­ca­ble par­ti­tion, or dis­agree on the na­ture and ex­tent of each in­di­vid­ual’s spe­cific share, one is en­ti­tled to file a suit for par­ti­tion.

In a suit for par­ti­tion, the courts will de­cide on the na­ture and ex­tent of each per­son’s spe­cific share on a case- to- case ba­sis.

Al­though an oral par­ti­tion is valid, it may at times in­crease the chances of lit­i­ga­tion as it be­comes dif­fi­cult to clearly as­cer­tain each in­di­vid­ual’s spe­cific share in the prop­erty. It is dif­fi­cult to es­tab­lish the ti­tle of own­er­ship with pas­sage of time.

Na­ture of prop­erty

One must keep in mind that un­der­tak­ing par­ti­tion may not al­ways be ad­vis­able or even fea­si­ble. De­pend­ing on the unique phys­i­cal char­ac­ter­is­tics of an im­mov­able prop­erty, par­ti­tion by metes and bounds may ac­tu­ally re­duce the mar­ket value of the prop­erty in ques­tion, and hence, may not be a sound fi­nan­cial de­ci­sion. For in­stance, it may not be fea­si­ble to un­der­take par­ti­tion of an apart­ment which was jointly in­her­ited by three sib­lings. In such cases, a bet­ter op­tion for the joint owners may be to sell the en­tire apart­ment and share the sale pro­ceeds amongst them­selves in pro­por­tion to their own­er­ship.

Ad­van­tages of par­ti­tion

By car­ry­ing out par­ti­tion of a prop­erty that is jointly owned with two or more in­di­vid­u­als, one’s pre­vi­ously un­di­vided share be­comes sep­a­rated, dis­tinct and clearly iden­ti­fi­able. Own­er­ship of a sep­a­rated and clearly iden­ti­fi­able share per­mits greater dis­cre­tion over how one wishes to deal with the prop­erty.

To il­lus­trate, let’s take an ex­am­ple of three sib­lings X, Y and Z, who have jointly in­her­ited a three- storeyed house from their fa­ther. Be­fore par­ti­tion, each sib­ling would have an un­di­vided share and in­ter­est in all the floors of this par­tic­u­lar prop­erty. Let’s as­sume that the three sib­lings mu­tu­ally agree that X would oc­cupy the ground floor, Y would oc­cupy the first floor and Z would oc­cupy the sec­ond floor.

Even if all three agree that each shall oc­cupy and re­side on a sep­a­rate floor of the prop­erty, each sib­ling will con­tinue to have one-third un­di­vided own­er­ship and in­ter­est in each of the three floors. So if X wishes to sell his one-third joint and un­di­vided share in the prop­erty, Y and Z may re­sist the sale if prob­lems arise.

It may not be easy for X to find a buyer who is will­ing to pur­chase one- third joint and un­di­vided share in the en­tire prop­erty rather than pur­chase ex­clu­sive and sole own­er­ship of a par­tic­u­lar floor.

In such cases, i f any­one wants sole own­er­ship of a por­tion of a prop­erty rather than un­di­vided and joint own­er­ship of an en­tire prop­erty, he or she can go in for par­ti­tion.

THINKSTOCK

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