How co-owners can seek division of jointly held property

Joint property refers to ownership held by two or more individuals simultaneously. The form of ownership commonly includes joint tenancy and tenancy in common.

Joint tenancy involves the right of survivorship, meaning if one owner passes away their share automatically transfers to the surviving co-owners.

Tenancy in common, on the other hand, allows each owner to have a distinct, transferable share that can be inherited or sold independently. Understanding the nuances of joint property is crucial for individuals navigating real estate transactions or estate planning including the partition of property. In addition, partition laws in India also govern different religion and communities like Hindus, Muslims, Christians, etc.

After partition of a property, the co-owners can enjoy exclusive rights over the property.

Which types of property can be partitioned?

Property in which co-owners choose to split the property among themselves can usually be partitioned. This holds true for a variety of property types, including:

  • Residential properties such as homes, apartments, and land held by several people.
  • Retail stores, industrial assets and co-owned office spaces.
  • Agricultural land including farms used for agricultural purposes that are owned jointly by several people.
  • Shared real estate holdings that are inherited by multiple heirs, known as inherited properties.

In order to ensure that each co-owner gets their share, the property is divided into individual shares or pieces during the partitioning procedure. Legal requirements and processes can change based on the kind of property and local laws.

Methods of partition

Partition of a property can be done in following ways:

Through a partition deed. A partition deed is a legal document used in property law to formalize the division of jointly-owned property among co-owners. The partition deed needs to be registered and stamped. The partition deed should specify each person’s shares in the property. Relevant details of all the parties should be mentioned and the partition deed should be registered at a sub-registrar office to be legally binding.

The partition deed can be used to assist with the resolution of any disputes arising on partition.

By way of agreement. A settlement agreement can be prepared by family members through negotiation to avoid a dispute between the members of the family. It does not require stamping or registration like a partition deed but does require all family members to voluntarily sign the agreement.

Partition by filing a partition suit. A partition suit can be filed in a court of law when the owners do not agree with the conditions of the property division. Section 9 of the partition act, 1893 empowers the court to divide the property evenly and distribute the revenues.

When a property is divided without a family agreement or partition deed then a case/suit can be filed with the court.

The legal notice to the partition suit contains all the details of the property and the relevant details of the owners and their shares. The suit should be filed in the proper jurisdiction of the court, and after filing the suit, the court will check that the person has a rightful claim over the property.

The court may require an enquiry to be carried out if it determines that the property cannot be divided solely on the basis of the partition suit. After that, it may make a preliminary decision regarding the appointment of a commissioner who will assess the disputed property and provide a report on it. The court may then divde the property in accordance with the commissioner’s report.

Passing of multiple preliminary decrees in partition suits

Decrees in partition suits typically involve court orders outlining the divisions of the shared property among co-owners. The specifics vary based on jurisdiction and case details.

In a recent landmark judgement, the Supreme Court of India held that in a suit for partition of joint property, every interested party is deemed a plaintiff. This means that each co-sharer has the right to initiate and pursue a partition suit, and one co-sharer can prevent another from doing so.

The Supreme Court also held that there is no bar to passing multiple preliminary decrees in a partition suit. This is important because a partition suit can be complex and time consuming, and it may be necessary to pass multiple decrees to resolve all of the issues involved. The court may issue these decrees based on the specific circumstances and complexities of the partition suit. (See A. Krishna Shenoy v. Ganga Devi G & ORS.)

The term preliminary decree is not defined in the civil procedure code, but the code refers to a preliminary decree, final decree, and partly preliminary decree and final decree. A preliminary decree can be appealed and there may more than one preliminary decree.

When necessary, the preliminary decree will come to an end with a final decree, which helps to determine the parties’ rights. The issue of several preliminary decrees in a partition proceeding is indicative of co-owner disagreement or complexity. It could be a sign of ongoing legal actions, unsolved disputes, or the requirement for more information. Certain parts of the division, like the property appraisal or distribution, can be covered by each decree. A thorough analysis of the decrees and the background of the partition litigation is required in order to reach a definitive conclusion.