Partition’ is a division of the property between co- parceners/co-tenants resulting in individual ownership/tenancy of interest of each co-parceners/co-tenants; while transfer’ is an act of a party by which the title of the property is conveyed from one person to another. ‘Partition’ under the Hindu Law, puts an end to the unity of the title, ownership and possession of the property between the co-parceners. In the partition there is a severance of joint status and of unity of possession between the co-owners/co-tenants. Partition neither creates any new title in a co-owner/co-tenant in the property nor is there any fresh acquisition of the property. It only enables the parties to know which particular property or portion thereof is their individual exclusive-share in the property. By partition the subsisting joint title of the co-owner/co-tenant in the joint property transforms into their separate title in respect of the property which came to their share. In a transfer, the transferee acquires the right and title in the property which did not vest in him earlier. Thus, ‘partition’ of the joint property cannot be treated as a ‘transfer of the property’ between individual co- parceners or co-tenants. Partition of co-parcenary property, therefore, cannot be regarded as a ‘transfer of the property’ because the co-parceners have an antecedent right in the entire co-parcenary property.
Amb Singh and Anr. vs. Sub-Divisional Officer and Ors., 1996 (3) WLC 431, High Court of Rajasthan, decided on 17.07.1996, para 10