Partition of jointly held property

Who may seek partition

Any co-owner may. It does not matter that the others are content with the arrangement, that the property has been held jointly for generations, or that the person seeking division holds a small share. What matters is that a share exists and that its holder wishes to hold it separately.

Two situations are commonly confused. Where property is held by tenants-in-common — the ordinary position where several people have inherited or purchased together — each holds a defined undivided share which is his own, which he may sell, and which devolves on his own heirs. Where property is coparcenary property in a Hindu joint family, the position is governed by the law of coparcenary, and the shares are worked out on notional partition. The distinction affects who is entitled, in what proportion, and what has to be pleaded.

By the amendment of 2005 to the Hindu Succession Act, 1956, a daughter became a coparcener in her own right, on the same footing as a son. In Vineeta Sharma v. Rakesh Sharma (2020) the Supreme Court held that this right arises by birth and does not depend on the father having been alive on the date the amendment came into force. A partition of Hindu joint family property that omits the daughters is open to challenge, and a purchaser of such property takes the challenge with it.

Partition by deed

Where the co-owners agree, division is effected by a registered deed of partition, which allots to each a defined portion in severalty. It is quicker and very much cheaper than a suit, and it produces a document that a subsequent purchaser can read.

Two things are worth doing properly at that stage. The portions allotted should be described by dag, area and boundaries, and should be capable of being identified on the ground, not merely on paper. And where the shares divided are unequal in value, the arrangement by which the difference is made up should appear on the face of the deed, because an unexplained inequality invites a later allegation that the deed was not what it appears to be.

A family settlement is a related but distinct instrument, recording an arrangement among family members about existing claims. It is not a transfer, and where it merely records what each was already entitled to it is treated differently. Whether a particular arrangement is a partition, a settlement or a transfer is a question of substance, and it affects both the duty payable (see the guide to stamp duty and registration fees) and how the document is later construed.

Partition by suit

A suit for partition proceeds in two stages, which is the single most useful thing to understand about it.

The preliminary decree determines who the co-owners are and what share each holds. This is where the contest usually is: whether a person is a co-owner at all, whether an earlier partition already took place, whether a deed relied on by one party is genuine, and what the shares are.

Between the two decrees the court ordinarily appoints a commissioner to go to the property, measure it, and propose a division on the ground. Where the property cannot be divided conveniently — a single flat, a small structure, a plot that would be rendered useless by division — the court may allot it to one party on payment of compensation to the others, or direct a sale and division of the proceeds.

The final decree allots the divided portions. Only at that point does each party hold a separate property.

A plaintiff out of possession may also claim mesne profits — the value of the use of his share by the co-owner who has had the benefit of it.

Limitation, and the question of ouster

Possession by one co-owner is presumed in law to be possession on behalf of all. Time therefore does not begin to run against the others merely because one of them has occupied the property, collected the rents or paid the rates for many years.

What starts time running is ouster: an open denial of the other co-owners’ title, brought to their knowledge. A refusal to give a share when it is demanded, a sale of the whole property as though it belonged to one, a mutation obtained on an assertion of sole ownership — these are the events from which time runs, and the date of such an event is very often the decisive fact in the case. It is worth establishing that date before anything is filed.

What tends to make a partition long

Partitions take longer than other property suits for reasons that are structural rather than legal: the number of parties, the difficulty of serving those who are abroad or untraceable, the death of parties during the suit and the substitution of their heirs, and the two-stage decree. A partition among four heirs of one property is a different undertaking from a partition among twenty-six heirs of nine properties, and the difference is not one of law.

Frequently asked questions