What is a partition suit? When is it filed?

In cases where an asset is held jointly by several owners, the need for partition arises to divide it among the owners. Division of joint property or land is a common example. The question arises, is it necessary to file a partition suit for the division of property? Can property be divided among co-owners without filing a suit? When does it become necessary to file a partition suit? This guide provides answers to all these questions..

See also: When is partition deed used for property division?

 

What is partition?

Partition is the division of a common property among eligible co-owners, who have a share in the property by law. After the partition, the property can’t be called a joint property and turns into an exclusive asset of the beneficiaries. The property does not necessarily have to be divided for partition. In fact, sometimes, co-owners can ask for monetary compensation in lieu of their share in the joint property.

Only joint owners or coparceners can effectuate partition. Someone without a share in the property is not eligible to demand it.

 

What are the various ways of property partition?

There are three legally accepted methods of dividing the joint property in India.

Partition with a partition deed

If there is a consensus among family members about the decision on to divide the property, they can draft and execute a partition deed and proceed with the partition. To make this legally valid, they will have to register the deed in the sub-register’s office after paying the due stamp duty and registration fee.

Partition with a family settlement agreement

Another way to divide a commonly held property is through executing a family settlement deed. Using a settlement deed, members of a family can clearly divide an asset among themselves, leaving no scope for confusion over ownership in future. Settlement deed can also be used to gift your share in a property to a non-member of the family.

Partition by filing a partition suit

In case joint members of the family have varying opinions about the partition or feels they are being short-changed by others in terms of their fair share, they have the option to file a civil suit.

 

Laws governing partition in India

The main laws governing partition in India include:

The Hindu Succession Act, 1956

Indian Succession Act, 1925

Muslim Personal Law (Shariat) Act, 1937

Code of Civil Procedure, 1908 (CPC)

 

Types of property that can be divided

Both self-acquired and family properties can be divided in India.

Self-acquired properties

When a person buys a property using his private wealth, this acquisition is known as his self-acquired property. The owner has an exclusive right in this property, purchased without any help from family or family members. Even if the person has taken a mortgage to fund the purchase, the property will still be counted as his self-acquired property as he/she would be repaying this loan using his/her own funds. Property received as a gift from non-relatives is also a person’s self-acquired property and so is property granted by the government.

Similarly, property inherited from your mother, grandmother, or uncle is not ancestral properties, neither are properties inherited by way of ‘Will’.

Family properties

Various kinds of properties can be classified as a person’s family property.

Ancestral property

An ancestral property is a common, undivided property in which four generations of a single family have their share. Basically, the father, the grandfather, the great grandfather, and the great-great grandfather have inheritance rights over an undivided ancestral property. A person’s right in an ancestral property starts from his/her birth.

Jointly acquired property

When the members of a Hindu Undivided Family (HUF) join forces to invest in a property keeping in view the future of the family, it is known as the jointly acquired property.

Property given to HUF stock

Properties of a member of the HUF will become a joint property in case the member decides to throw his personal asset in the family stock.

Property acquired using HUF funds

Hindu Undivided Families have joint accounts. When money from this account is used to purchase a property, the property will be considered as the joint family property even if it gets registered in the name of only, say, the Karta, for instance.

 

How to file a suit for partition?

At the outset, it must be clarified that if a family property can be divided through a partition deed, or family settlement deed, it would be advisable to take the route. This is because the judiciary in India is overburdened, with the general timeline to get a relief going into decades in property matters. However, if filing a partition suit is your only option, here is the stepwise process of doing it.

Approach a lawyer

The first step in this direction is finding a lawyer with expertise in property disputes. Be extremely honest with him when discussing the case, and he/she will be able to tell you the best possible option available. If the lawyer is of the view that your case has merit, he/she would decide to be your counsel.

The lawyer will draft the partition suit

Based on the facts, the lawyer will draft a partition suit. The suit will clearly mention all details about the property in question and the share you want to claim lawfully.

The lawyer will file the suit

In the next stage, the lawyer will file this suit in a court, which has the jurisdiction. At this step, you will have to submit the court fee.

Court will decide if the suit is maintainable

Once a date is fixed for the hearing of the case, the judges will have a look at the suit. Only if they are of the view that the suit is maintainable, they will agree to continue the case. In case they are convinced the suit is not maintainable, they will reject the appeal and dismiss the case.

Defendants given time to respond

In case the court takes up the case, it will send notices to the defendants, giving them time to respond.

Court to verify proofs submitted by all parties

The court will look into the merits of the suit and verify the evidence presented by the plaintiff and the defendants.

Examination and cross examination of witnesses

The lawyers from both sides will present their own witnesses. Each side will also get the opportunity to cross-examine the witness from the other side.

Final arguments

Once all the evidence and witnesses are presented, lawyers from both the sides will present their final argument.

Decree by the court

Based on the merits of the arguments and considering the evidence and witnesses presented, the court will grant a decree.

Execution of the decree

The court in its order will also specify a period within which the order of the court must be executed.

Appeal

If any party is not satisfied with the judgement, they have the option to approach the high court and subsequently the Supreme Court.

 

Documents required for filing a partition suit

• Original title deed
• Copies of the title deed
• Property valuation
• Death certificate of the original owner
• Residence certificate of the original owner
• Documents proving the relationship of the legal heirs with the original owner

 

FAQs

What is partition of property?

Under the Hindu law, partition is the division of property of a joint Hindu family to give separate conferment of status to coparceners.

Who can demand a partition of a joint family property?

Co-sharer, coparcener, co-owner, or joint owner can demand a partition of a joint family property.

Which section of the Code of Civil Procedure talks about partition of property?

Section 54 of the Code of Civil Procedure talks about the partition of property.

Who is a coparcener?

A coparcener is one who inherits estate as coheir with others.

How do I find out about my exact share in the family property?

In case of an undivided property, all coparceners have a joint share. Till the partition takes place, none of the coparceners can tell the exact amount of share that he/she owns in the property.

What are the essentials of a valid partition?

The following essentials must be established to effectuate a valid partition:

(1) There must be an intention to separate the joint family.

(2) There must be a clear, unequivocal, and unilateral declaration which conveys the intention to separate from the joint family.

(3) The intention must be communicated to the Karta or to the other coparcener in his absence.

Can a coparcener demand partition at any time?

A coparcener has the right to demand partition at any time without the consent of the other coparceners.

Got any questions or point of view on our article? We would love to hear from you. Write to our Editor-in-Chief Jhumur Ghosh at jhumur.ghosh1@housing.com