PRESIDENCY UNIVERSITY

SUBJECT: PROPERTY LAW

RESEARCH PAPER

TOPIC: AN ANALYSIS OF PARTITION, FAMILY SETTLEMENT

AND COMPROMISE UNDER TRANSFER OF PROPERTY ACT,

1882.

SUBMITTED BY SUBMITTED TO

SAI HASITHA PROF. SAJAL SHARMA

2016BBL024 SCHOOL OF LAW

TABLE OF CONTENTS
 INTRODUCTION

The word ‘transfer’ is defined under Section 51 of Transfer of Property Act, 1882.
This term has a wider sense which only includes the transfers between living
persons i.e. intervivos. It excludes transfers by Wills as Will only operate after the
death of the testator. For the purpose of Transfer of Property it is necessary that the
property must be conveyed i.e., it must be handed over to the other person. This
term refers to the creation of new title and interest towards the transferee. If new
title or interest has not created in favor of transferee, the property cannot be said to
be conveyed, thus no transfer of property.

It is also not necessary that all the rights or interests in the property must be
conveyed to the other person. It implies that the person conveying property is
entitled to the property sough to be conveyed and it is being conveyed to a person
who has no title to it otherwise.2

In addition to this the term future is used to define the future interest in the
property and not the future property itself. Therefore, the word future property
itself must be transferred. Therefore, the word future is for the conveyance.

In Sunil Sidharthbai v. Commissioner of Income Tax3, the Supreme Court rightly

observed that in general, transfer of property means passing of a right in the
property from one person to another. In one case there may be passing of entire

1
“Transfer of property” defined.—In the following sections “transfer of property” means an act by which a living
person conveys property, in present or in future, to one or more other living persons, or to himself, 1[or to himself]
and one or more other living persons; and “to transfer property” is to perform such act. 1[In this section “living
person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein
contained shall affect any law for the time being in force relating to transfer of property to or by companies,
associations or bodies of individuals.
2
Lionel Edwards Ltd. vs. State of West Bengal, AIR 1967 Cal 191.
3
AIR 1986 SC 368
bundle of rights from transferor to transferee, but in another case there may be
transfer only some of such rights.
 DEFINITIONS

 PARTITION:
It is a re-distribution or adjustment of pre-existing rights, co-owners/coparceners, resulting in
a division of land or other properties jointly held by them, into different lots or portions and
delivery thereof to the respective allottees. The effect of such division is that the joint
ownership is terminated and the respective shares vest in them in severalty. A partition of a
property can be only among those having a share or interest in it. A person who does not
have a share in such property cannot obviously be a party to a partition.4
`Separation of share' is a species of 'partition'. When all co-owners get separated, it is a
partition. Separation of share/s refers to a division where only one or only a few among
several co-owners/coparceners get separated, and others continue to be joint or continue to
hold the remaining property jointly without division by metes and bounds.
 FAMILY SETTLEMENT:
A family arrangement is an agreement between members of the same family, intended to be
generally and reasonably for the benefit of the family either by compromising doubtful or
disputed right or by preserving the family property or the peace and security of the family by
avoiding litigation or by saving its honour.
The agreement may be implied from a long course of dealing, but it is more usual to embody
or to effectuate the agreement in a deed to which the term family agreement is applied.5
 COMPROMISE:

4
Shub Karan Bubna vs. Sita Saran Bubna & Ors., JT 2009 (11) SC 583
5
Halsbury’s Laws of England, Volume 18, Fourth Edition,
 NATURE

PARTITION:
 PARTITION IS NOT A TRANSFER UNDER SECTION 5 OF TRANSFER OF PROPERTY
ACT, 1882

A Partition of the joint family property takes place by the act of the parties; it is not a transfer
within the meaning of Section 5 of T.P. Act. In a partition, no one transfers title which he
possesses in the favour of a person who does not possess a title. Everyone has an antecedent title.
Therefore, no conveyance is involved, in the process as conferment of new title is not necessary.
It does not amount to transfer. Therefore, partition is not a transfer and by partition nobody
acquires title to any property for the first time.

The partition deed only recognizes an existing right, which each party to the deed has in the joint
property and no right spring from the deed of partition.6 It is only renouncement of existing
rights in common properties in consideration of getting exclusive right and possession over the
specific plots. Partition is only a process of mutual renunciation by which common unspecified
rights in large extents are located into exclusive right over specific plots.7

Initially, all the coparceners have subsisting title to the totality of the property of the family
jointly, that joint title is by partition transformed into separate titles of the individual coparceners
in respect of several items of properties allotted to them respectively. It cannot be said that
partition of an undivided Hindu family property must necessarily mean transfer of the property to
the individual coparceners.8

6
Aralapa vs. Jagannath, AIR 2007 Kar 91.
7
V.P.R. Prabhu vs. S.P.S. Prabhu, AIR 1985 Ker 265
8
V.N. Sarin vs. Ajit Kumar, AIR 1966 SC 432