Usually, joint properties are partitioned between the joint owners which amount to severance of the joint interest in the ownership of the common property. In order to avoid any quarrels between the family members or to maintain the harmony and the dignity of the family, a decision shall be arrived to by the members of the family to partition the common properties and the decision is called family arrangement. If the decision is arrived as a result of quarrel and partition is made as settlement, the decision is called as family settlement. Because of similarity in name, it is often mistaken the partition for settlement.
Joint owners of property by intestate succession or joint purchase shall make partition of property. Each of the co-owners owns equal or unequal shares proportionate to their interest and which are undivided and not physically unascertainable.
The portioned property shall become the self acquired property of each party of the partition. If two or more persons jointly purchase a property, each person shall be a joint owner of the property and owns a undivided share proportionate to his or her investment. A property can be jointly inherited by legal heirs of deceased owner of the property. It may be noted that a grandson can't directly be owner of the property or legal heir of his grandfather, if his father is alive.
The partition deed requires minimum of two persons (parties) whereby the common property is partitioned and the interest of each party is severed from the joint interest. That is to say every party is already owner of his/ her share. As such, partition deed can be made by and between the co-parceners, partners or joint/ co-owners only and it cannot be made in favour of any third person.
Usually, no condition would be made in partition deed as in the case of settlement deed, however section 10 of Transfer of Property Act permits the parties to impose certain type of restriction in family arrangement. A co-owner's share in a property is inheritable and transferable.
The consideration for a family settlement or arrangement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations and after that consideration has been passed by each of the disputants. The courts held that the consideration for the family settlement being compromise between parties.
Partition amounts to severance of joint ownership and hence it has to be registered compulsorily and the stamp duty and registration fee have concession in case of family arrangement.
Family members, in general, means mother, spouse, son, daughter, grand children, wife of predeceased son. However, various state government made different stands in defining and listing the relations in the family members.
Partition and Settlement
Usually partition deed is made between joint owners/ coparceners to divide their share of interest from the common/ joint interest over the property. Thus partition is severance whereas the settlement is conveyance. In partition, each party is already owner of his/ her share as governed by succession or partnership terms, whereas in settlement, the claimant shall own and possess the property and do not have any interest previously.
In both the cases, claimant shall become independent absolute owner.
Release is an act whereby a person relinquishes a claim, interest, title over a specified property which he or she has against another person.
Each of the Joint owners or Co-owners of property by intestate succession or by joint purchase owns equal or unequal share, but a definite share in the property as per succession or proportionate to their investment and which are undivided and not physically unascertainable.
The release must be in written form and the deed is to be compulsorily registered. In a release, both the releaser and releasee are the owners of the property and the release does not create any title, but there is a transfer of share and the hence it must be in written form and the deed has to be registered compulsorily. The release deed is similar to a sale deed. In a release deed, consideration is optional and in a sale deed, consideration is a must. The released property shall become the self acquired property of releasee.
The prop lawyer while scrutinizing the release deed must see that the origin of the interest, claim or right is clearly spelt out, the releaser had knowledge about the nature and quantum of claim or interest which is/ was released and the release is clearly and sufficiently expressed and thus there is no further claim from the releaser against the release.
The prop lawyer may also see the reason behind the relinquishment, it may that the property is impartible nature, releaser is well settled or residing at remote place or the release is on considerable consideration.