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
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.