What is a will?
According to Indian succession act, 1925, ‘will’ means the legal declaration of the intention of a testator with regard to his property which he desires to be carried into effect after his death. Making a will helps ensure one person that after his dissolution his property goes to the right heir and receives their equal share. There are some parties involved in execution of the will, they are:
i. Testator: The person who writes the will.
ii. Beneficiary: These are the people to whom the will is written. They will receive all the assets of property.
iii. Executor: the person named by the testator who is given responsibility to carry our testators wish as prescribed in the will.
In Ganambal amal vs. T.Raju Iyer, the court held that while constructing a will the main thing to observe is the intention of the testator and this intention can be primarily observed from language of the document.
What is partition?
A partition is a deed of property executed to divide the property among different people, usually the family members. A partition is a division of property held jointly by several persons, in order that everyone gets a share and becomes the owner of the share allotted to him. The legal document which is used to attend the partition is called as partition deed. A partition deed is mostly used by families to divide shares in inherent properties.
By the above explanation the terms Will and Partition may sound the same, but they are not. Let us analyze the difference between the two through following points:
- The first and most important difference between the two is that it will come into force after the death of a person. Whereas partition is made between living persons.
- A will is intended to dispose of property. There must be some property which is being given to others after the death of the testator. And partition may be a combination of surrender and transfer of certain rights within the estate except those which are easement in nature.
- The beneficiary of the will enjoys the right of ownership of the property after it is passed to him, whereas co-owners in partition enjoy limited rights over a property. They are not liberal to rent, sell or give the property on their own accord. All the co-owners must agree to the same.
- A testator (the person who makes the will) can change his Will at any time. There is no restriction on how many times a will can be made but only the last will made before the death of a person is enforceable. A Will which is made by a person of unsound mind, minor or made under intoxication, coercion and force is not enforceable and is void. On the other hand, in case of partition, it is made by mutual consent of the parties. The partition deed has to be registered at the office of sub registrar of the place where the property is situated.
- The registration of will is not compulsory, it can be registered with the sub registrar. It can also be sealed and kept in custody. Whereas, the partition deed has to be registered and the stamp duty amount is payable.
- On death of the testator, an executor of the will or heir of the deceased testator can apply for probate. A probate may be a legal term which determines if a will is valid and authentic. While in partition there is no such thing as probate, if one of the co-owner does not agree to a partition property then a suit can be filled in appropriate court, the deed must contain all the clauses in a clear and unambiguous manner.
In Rukmani and others vs. H.N.T. Chetteir, it was held that a co-owner cannot be prejudiced and create difficulty in another co-owners work during a pendency of a suit for partition filled by another co-owner.
In Hazara Singh v. Faqiria where a co-owner contended that he had, by adverse possession, a peaceful undisturbed possession by the opposite co-owners had become the only owner of a land, held that the possession of a co-owner is possession of all the co-owners. It can’t be adverse to them unless there’s a denial of their right to knowledge by the person in possession. If a co-sharer is in possession of the whole property, his possession can’t be deemed to be adverse he possesses the property on behalf of all others.
Everybody likes to make sure that the life they have led has been meaningful and that whatsoever asset he has gained in his lifetime should be in the right hands during the span of his life and even after his death. Through will, a person can ensure as to how his property will devolve after his death. If a person dies before making his will, his property will devolve by the process of law. Hence, it is important that one should make a will to ensure the safety of its property. Partition of property is additionally subject to the laws of inheritance applicable to a specific person. Different laws can apply. An interest during a coparcenary property also can be Willed away. This share goes out of the purview of ancestral property.
S.R.Myneni, D. (2018). law of property. hyderabad: Asia law house.