Partition

A partition is a term used in the law of real property to describe an act, by a court order or otherwise, to divide up a joint ownership into separate portions representing the proportionate interests of the holder of the property.

The property of person who dies interstate is passed on to his legal heirs as the joint holders. "Joint holders" means holders or occupants who hold property as co-sharers, and whose shares are not divided by metres and bounds. Each holder has equal rights to the property, except to the extent they have modified these rights through an agreement among themselves. Each holders has an unrestricted right of access to the property. Where one co-sharer wrongfully excludes another from making use of the property, the excluded co-sharers can bring a cause of action for ouster, and may receive the fair value of the property for the time that he was dispossessed.

Each co-sharer has a right to an accounting of profits made from the property. If the property generates income such as rent, each co-sharer is entitled to a proportion of that income.  Co-sharers do not have any obligation to contribute to any costs of repairing or improving the property. If one co-sharer adds a feature that enhances the value of the property, that co-sharers has no right to demand that any others share the cost of adding that feature - even if other co-sharers reap greater profits from the property because of it. However, at partition, a co-sharer is entitled to recover the value added by his or her improvements of the property. Conversely, if the co-sharers "improvements" decrease the value of the property, the co-sharers is responsible for those decreases as well.

Where co-sharers wish to destroy the joint interest, they can do so through a partition of the property - a division of the land into distinctly owned plots if such division is legally permitted based upon zoning and other land use restrictions or, where such division is not permitted, a forced sale of the property followed by a division of proceeds.

If the parties are unable to agree to a partition, any or all of them may seek the ruling of a court to determine how the land should be divided up, physically divide it between the joint owners (partition in kind), leaving each with ownership of a portion of the property representing their share. Courts may also order a partition by sale in which the property is sold and the proceeds are distributed to the owners. Where law does not permit physical division, the court must order a partition by sale.

Each co-owner is entitled to partition as a matter of right, meaning that the court will order a partition at the request of any of the co-owners. The only exception to this general rule is where the co-owners have agreed, either expressly or impliedly, to waive the right of partition. The right may be waived under certain conditions.

In the Maharashtra the provision of partition of the land is made under Section 85 of the MLR Code 1966.