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Partition is a division or splitting of a Hindu Joint family which brings the life of a coparcener to an end. According to mitakshara school separation means two things, 1. Severance of status or interest. According to Dayabhaga School of Hindu law it means only division of property by meets and bounds. For partition to take place at least to coparceners are required. Partition is a term used in the law of real property to describe an act by court order or otherwise to divide up a concrete estate into separate portions representing the proportionate interest of the owners of property.
A co-owners share in the property is inheritable and transferable. Share of investment of each co-owner in the property and the undivided share in rights, interest, title of the property should be clear and explicitly identified.
Any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue-authority or any Civil Court and an award by an arbitrator directing a partition.
means putting an end to joint ownership. It is effected by destruction of unities. In India, there are three types of joint estate 1. Joint tenancy, 2. Tenancy in common, 3. Co-parcenary. Mitakshara co-parcenars resemble in some respects joint tenancy of England’s and Dayabhaga co-sharers resemble tenants in common, never the less, on minute analysis there is not much difference between the two systems.
A partition is not a transfer or property within the meaning of section 5 of transfer of property of Act nor an exchange within the meaning of section 118 of the said act but a mixture of the surrender and conveyance of rights in the property.
The person who gets the largest share is entitled to the custody of the title deeds subject to a covenant for production and also to the original deed. It is often desirable to execute a partition deed in duplicates according to the number of the parties, one party keeping the original and others getting the copies.
A suit for partition must be in respect of the entire estate and the entire joint family must be represented expressly or by implication. The Income Tax Act, 1961 requires certain conditions to give effect to partition under section 171 of the Act, mere severance of status is not partition. The members of a joint family can make a division and severance of interest in respect of joint estate, but they will be presumed to hold the rest as tenancy common in the absence of clear intention to the contrary.