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:
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.
2.Arbitration:
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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