Tuesday, 6 May 2014


In India, the Joint Family System is gradually disappearing.The reason attributable for this could be many. But migration of people to cities in search of employment, attraction to hi-fi Life Style of Cities and the gradual increase of unproductive Dependents on the Family leading to financial and other constraints have forced the members of the Joint Families to free themselves from its clutches and in formation of nucleus families. The net effect of all these is the Division or Partition of Joint and Ancestral Properties.

Partition is the severance of Joint Status. All that is necessary to constitute a partition is a definite and unanimous indication of intention by a Member of the Joint Family to separate himself from the Family and enjoy his share severally. Such an intention may be expressed by serving a notice on the other Coparceners.Thus, the Joint Family property gets split into two or more divisions and is transferred to be held by such Coparceners as their Individual Property. When a Property is divided, each Party to the Partition derives absolute Ownership over the Property allocated to him and thereby the remaining persons of the Family would lose their Right over Portion of the Property so allocated to any one individual upon such Partition. Thus, partition is a mixture of release and transfer of certain rights in the estate, except those which are easements in nature.  Partition is neither a gift nor a transfer of Property, but merely a division of Joint Rights into Several Rights.

Nature of Joint Hindu Family Property:
The concept of Joint Hindu Family is that each Member, who is otherwise called as Coparcener, will acquire a right over the Joint Family Property by birth and each of them share Joint Ownership and enjoyment over the Entire Joint Family Property.

Division of Joint Family Property:
Upon a partition, the Joint Family Properties are divided by metes and bounds amongst its Members.However, certain Properties cannot physically be divided for obvious reasons.  In certain cases, the division of a Property is considered to be impracticable and unreasonable since such division would diminish the inherent value or utility of the property. In such a case, Partition can still be effected by giving monetary compensation or by allocating some other asset of equal value   to a sharer in lieu of his or her share in the property.

Instrument of Partition:
The instrument of Partition is a document by which the Co-owners of a Joint Property mutually divide the property among themselves. Partition may be of different types:
1. Oral Partition.
2. Arbitration.
3. Partition by Court Decree.
4. Partition Deed.

1.Oral Partition or Family arrangement:
Oral Partition refers to Family Arrangement arrived at by the parties before the Panchayath or as  the case may be or before their well wishers. Oral Partition, which is commonly referred to us, Panchayath Palupatti, does possess Legal Sanctity.  Generally, when the relationships amongst members are cordial, this method could be adopted.  Indian Registration Act makes it mandatory for Registration of Instruments which assigns, convey or transfer right, interest and ownership over the Immovable Property.However, the Memorandum of Partition, which merely records the event of an Oral Partition having taken place to which all the concerned parties to the Partition who have affixed their signature, does not require any Registration.Therefore, the necessity of Registration of Partition Deed depends upon the content and nature of the document along with the surrounding circumstances.Supreme Court has held that even a family arrangement is enough to effectuate a Partition among Coparceners.

The members of a Joint Family may decide to appoint an Arbitrator for Apportionment of the Joint Family Property among themselves.Where an Arbitrator is appointed as a result of Agreement between the parties, the Arbitration Award passed by him is binding on all the Parties.So, as long as the Arbitrator acts within the Scope of his Authority, his Award must be accepted as valid and binding.The Partition so effected based on the Arbitration Award needs Registration. 

3.Partition by Court Decree:
If any of the members of the Joint Family files a Petition before the Competent Court seeking Partition of the Joint Family and for grant of other consequential reliefs, the same shall be Adjudicated and a Decree is drawn up by such Court dividing the Properties of the Joint Family by metes and bounds.This method of Partitioning the Joint Family Property is generally adopted when there is no Cohesion amongst its members.The Partition effected based on such Decrees shall also require Registration.

In a Partition Suit, the Competent Court might have Decreed the Partition of the Property in the interest of the Co-owners. But, if it is found that the Sale of the Property and Distribution of the Proceeds amongst the Co-owners is more beneficial, the Court at the request of the parties, the Court may Direct Sale of the Property and Distribution of the Proceeds amongst them. In case, a minor gets on a Partition, lesser share than what he/she is entitled to, According to Law, then the partition is considered to be defective and the minor is at liberty to get the matter reopened on their attaining majority.

4.Partition Deed:
Joint Family Property can be Partitioned through a Partition Deed.Such Partition Deed needs Registration with the concerned Sub-Registrar upon payment of required Stamp Duty and Registration fee.

It is very imsportant that every Partition is effected duly supported by Legal Sanction.Otherwise, it may lead to litigations amongst the members of the family.


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