Partition - Meaning and When Registration Necessary

A partition does not involve transfer of property. A partition with unequal shares does not amount to a gift. Partition can be effected orally. When a partition is reduced to a document stating the division has taken place as narrated in the document, it is not compulsorily registrable. But if the document proposes to divide the properties as narrated in the document, it is compulsorily registrable.

In Sri Jagatram Ahuja vs The Commissioner Of Gift Tax ( link http://indiankanoon.org/doc/46064/): Supreme Court approved the definition of partition laid in Radhakrishnayya v. Sarasamma AIR 1959 Mad. 213 where it was laid as under :

"Partition, therefore, is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharers had an antecedent title and therefore, no conveyance is involved in the process as a conferment of a new title is not necessary."

The Indian Stamp Act, Section 2(15) defines, (15) "Instrument of Partition ".--"Instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severally, 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.

In Radhakrishnayya v. Sarasamma @ Para 2 HC held "It is now fairly well settled that the co-owners can partition the immovable properties orally. But, however where a document is employed to effectuate a partition or any of the transactions specified in Section 17 of the Registration Act such document must be registered, notwithstanding with the transaction is one which the law does not require to be put into writing. Such unregistered document cannot be looked into to prove the terms of the partition. But, however the same if inadmissible in evidence for the purpose of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The expression "collateral purposes" is no doubt a very vague one and the Court must decide in each case whether the parties who seek to use the unregistered document for a purpose which is really a collateral one or as is to establish the title to the immovable property conveyed by the document. But by the simple devise of calling it "collateral purpose", a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if it were registered."

In CIT Madras vs Getti Chettiar 1971 AIR 2410, 1972 SCR (1) 736 (http://indiankanoon.org/doc/466149/) Supreme Court held "we do not think that  a partition in a Hindu Undivided Family can be considered either as "disposition" or "conveyance" or "assignment" or "settlement" or "delivery" or "payment" or "alienation" within the meaning of those words in s. 2 (xxiv). The court explained salient terms in Gift Tax Act, 1958, S. 2 (xxiv) - "transfer of property" means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes .... 

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"the word "disposition" in the context means giving away or giving up by a person of something which was his own, "conveyance" means transfer of ownership, "assignment" means the transfer of the claim, right or property to another, "settlement" means settling the property, right or claim conveyance or disposition of property for the benefit of another, "delivery" contemplated therein is the delivery of one's property to another for no consideration and "payment" implies gift of money by someone to another."

Supreme Court held in Sri Jagatram Ahuja vs The Commissioner Of Gift Tax (link http://indiankanoon.org/doc/46064/) "the common holding of property by the coparcener is converted into separate title of each coparcener as tenant-in-common. Nor does subsequent partition by metes and bounds amount to a transfer"

In A.C. Lakshmipathy And Another vs A.M. Chakrapani Reddiar & Ors AIR 2001 Mad 135, (2001) 1 MLJ 1, (http://indiankanoon.org/doc/836133/), Madras HC held @ Para 25  "A memorandum or a Chit or a list written and signed by the parties referring to an earlier oral partition which parties intended to be only a record of earlier partition and not a proof of what they have partitioned and how they have partitioned and consequently to claim their rights/title, under the agreement need not be registered."