Partition of property becomes very common in India in a household spirit between family members or co-owners of joint property. It arises when there is a need to divide joint property shares into distinct indivisible shares. Partitioning property enables each co-owner to his or her rightful share, leaving a partition suit when there is no other way to reach an agreement on it. Let’s take a closer look at how partition can be achieved in the different ways in India, the laws on partition, and how one can file a suit for partition in a step-by-step manner.
What is Partition?
In other words, partition means dividing a property into distinct separate portions, shares, or lots. This sharing can be done voluntarily or by intervention of law. When more than one person or organization has a fraction of the ownership in that property and a necessity arises to share that property into several independent shares, then this is called partition of property.
Modes of Partition in India
Basically, in India, partition could take place in three major ways:
Partition Deed A partition deed is an amicable arrangement arrived at between co-owners to divide the property. This method of partition is the most preferred, as it involves mutual consent. The partition deed is to be executed on a stamp paper and registered with the sub-registrar’s office. Once registered, it becomes a legally binding document, ensuring that all the parties adhere to the terms of division. The process, being voluntary, is quicker and avoids the complications of litigation.
Family Settlement An agreement of family settlement pertaining to partition is similar to the agreement of partition but does not require registration or stamping. It is simply an understanding between family members with respect to the mutual division of the property. Although it is not legally required, it is highly advised to have all family members sign the document. This is often used to avoid disputes and amicably settle amongst the family.
Partition Suit When co-owners cannot mutually agree to the division of the property, one or more of them may file a suit for the partition within the walls of the court. This legal process aims at having the court divvy up the property according to the shares entitled to each party. This is a lengthy and costly process; however, where all other methods of partition fail, resorting to a partition suit is the only option left.
Partition Laws in India
The partitioning of property in India may be put under many laws. Among these, the most important ones are:
Hindu Succession Act, 1956 In regard to the partition of the Hindu joint family property. It lays down the rights of co-owners and gives the manner of partition of property in a Hindu Undivided Family.
Hindu Partition Act, 1892 Provides for the partition of the properties, which are owned by joint owners, and for the definition of rights and duties of co-owners during partition.
Other Useful Statutes Other statutes may apply in instances in which properties are the subject of partition and are owned by non-Hindus or are properties that fall under other personal laws, such as the Indian Succession Act, of 1925.
Who can File a Partition Suit?
In India, there are no restrictions relating to who may institute a partition suit. Any co-owner of the property is able to file for partition. This joint tenant may have either a vested or contingent interest in that property. There is no necessity that all or even the majority of such successors be parties in the suit in the case of many successors. When disagreements arise concerning the distribution of properties, one or more of the concerned co-owners can initiate a partition action.
What Are the Required Documents for a Partition Suit?
For initiating a partition suit, the following documents are to be gathered:
Certified Copies of Property Documents: These may be sale deeds, title deeds, or any document establishing ownership.
Death Certificates: If the property owners are deceased, obtain the relevant death certificates of the deceased persons from the municipal authorities.
Market Value Certificate: A certificate obtained from the sub-registrar’s office regarding the property’s market value.
Step-by-Step Process of Filing a Partition Suit
Filing a partition suit consists of a detailed legal process. Below mentioned are the major steps involved;
Filing the Suit/Plaint A partition suit starts with the filing of a plaint (a formal written complaint) before court. This plaint has its formalities that are to be followed as per the instructions by the court and carry things like name of the court, parties to the suit, brief nature of the complaint, and an affidavit affirming the truthfulness of the averments.
Power of Attorney/Vakalatnama The plaintiff must give a vakalatnama or power of attorney so that the lawyer can represent him in the courts. Without it, the lawyer is unable to act on behalf of the client.
Payment of Court Fees The plaintiff will pay the court fees according to the law in his state; it will be different in every state and with the value attached to each property. The court fee is essential for moving that suit to proceed.
Hearing of Argument The court will thereafter bear hearing upon phil filing plaint and court fees. The court will then issue a notice to the other party to appear in court if, during such hearing, merit of the case is found evident.
Filing Written Statement After notice serves to the other side, she shall file written statement, being a reply to the plaint, within thirty days, extending the same to ninety days as may be granted by the court.
Replication The written statement filed by the opposite party is responded to by the plaintiff, which is termed as replication. This stage helps in clearing the issues as well as rejection of the claims made by the defendant.
Framing of Issues They are specific points that must be determined before the case can continue in court in the form of issues framed by the court. These issues are the foundation for the case.
Witnesses and Examination Both sides shall bring their witnesses and evidence. The witnesses will then be tested in court and their declarations will become part of the case.
Final Hearing The last stage of hearing is where both parties submit their arguments, and the decree will be passed by the court on the basis of the issues framed. This decree will indicate how the property will be divided up.
The copies are certified after passing the final order from the court. Then both parties can either avail of the copies from the court registry.
Limitation for Partition Suit
As per the Limitation Act, the period prescribed under it for filing suit under partition is twelve years from the date when the adverse claim exists, and where such a suit is not filed, it is deemed to be barred by limitation.
Time Taken for Conclusion of Partition Suit
Generally, a partition suit takes up to 3 years to complete. This includes the obtaining of preliminary decrees, which usually takes about 2 years, and that of final decrees, which takes 1 year more.
Conclusion
This partitioning property becomes complex, time-consuming, and sometimes takes much longer if both co-owners involved are not on the same page. Solved matters such as mutual partition deed or family settlement may not raise an issue over time. However, sometimes, they resort to partition suits if an internal dispute arises. The co-owner needs to know the process and applicable legal provisions so that the entire partition process can be carried out with ease.