This article is written by Amrisha Mitra from Amity University, Kolkata.
Introduction – What is meant by the term Partition?
Partitions in simple words mean something that separates one part of space from another. Black’s Law Dictionary defines Partition as “ the act of dividing real property held jointly or in common by two or more persons into individually owned interests (Partition in kind). It is the segregation of property owned in undivided shares, so as to vest in each co-owner exclusive title to a specific portion in lieu of his undivided interest in the whole.” The term ‘partition’ is generally applied to real estate.
According to the Partition Laws in India, only two kinds of property can be partitioned by the voluntary acts of the owners:
- Self-acquired property
- Ancestral Property
There are various ways in which partition of an ancestral property can take place. It can happen through a partition deed or family settlement or by filing a suit for partition or by partition through will probate. This article will mainly deal with the following points:
- What is a Partition Suit?
- What are the laws that regulate Partition in India?
- Who can file a partition suit?
- What is the procedure required to be followed in filing a suit for partition?
- Limitation Period for Partition Suit.
- Important case laws on Partition Suit.
What is a Partition suit?
A partition suit is a proceeding instituted by a coparcener when a property dispute arises in the family or when there is absence of mutual consent among the multiple owners of the real estate in the sale or division of the property. This suit is initiated only when the legal notice of partition has been disregarded by the other co-owners and the dispute continues.
Laws that regulate Partition in India
- The Partition Act, 1893
Section 2 of The Partition Act 1893 gives power to the court to order sale instead of division in partition suit if such division appears to be unreasonable or inconvenient for all the shareholders. The court in such circumstance, on the interest of any such shareholders may direct a sale or distribution of the proceeds. U/S 9 of this Act the court may also make a decree for distribution of part of the property to which the suit relates and the sale of the remainder.
- The Hindu Succession Act 1956 (Governs the partition in Hindu Joint Family).
- The Hindu Undivided Family [HUF] and The Hindu Partition Act of Property 1892( Governs property partition of jointly owned property by two or more co-owners).
Who can file a partition suit?
Any person who is a legal heir or co-owner of the joint property, in possession of any legal document (will, gift deed,sale deed) can file a suit for partition and claim his individual share. It is advisable to collect the certified documents of the same including the market value and death certificates from the concerned authorities.
Process of Filing Partition suit in India
A specific procedure needs to be maintained while filing any kind of suit to avoid it’s dismissal on any grounds. It involves the following steps which are discussed as follows:
1.Filing of suit/plaint : A plaint is a written formal complaint made by the plaintiff expressing his grievances,claims and cause of action to the court of law. It must be filed within the time period prescribed in The Limitation Act 1963 or it may become time-barred. The document should include the following information i.e.
- Name of the court
- Name, description and of address the parties
- Facts to determine the jurisdiction of the court
- Facts that constitute the cause of action
- Description of the property
- Amount of relief claimed
- Statement of value of the subject matter of the suit
- A declaration stating the genuity of the complaint
- Vakalatnama/ Vakil Patra : Vakalatnama is a written document that entitles an advocate to act and represent matters before any court,tribunal or authority on behalf of his client. The document is usually authorized by an aggrieved person or by anyone who holds the power of attorney for an aggrieved person or represents him in business or trade in that jurisdiction. A Valakatnama may contain the following terms and conditions:
- The advocate shall not be held liable for any decision made by the court.
- The client must bear all the expenses and costs during the court proceedings.
- The advocate can retain all the documents until complete fees are paid.
- Court Fees : Payment appropriate to court fee and processing fee is necessary for filing any kind of suit. A nominal court fee of Rs 200 is usually applicable incase of a joint property. After payment has been made the court shall mention the date of the first hearing to the plaintiff and decide whether to continue with the proceedings or not.
- Hearing : On the first day of hearing, if the court believes there are merits in the case, it will issue a notice to the opposite party to submit their arguments and fix another date of hearing. The plaintiff is then required to file the appropriate amount of procedure fee in the court and two copies of plaint for each defendant within 7 days.
- Written Statement : The defendant shall keep a record of his written statements disproving the allegations made in the plaint else, such allegations would be deemed to be accepted. He must also provide a declaration stating that the contents of the written statement are true to his knowledge. The time period for filing a written statement is 30 days, and can be extended to 90 days if the court agrees.
- Replication by the Plaintiff : Replication is a reply filed by the plaintiff against the written statement of the defendant denying all the allegations made by him. Once, the replication has been filed, the pleadings are considered to be complete.
- Filing of other documents : After the completion of the pleadings, both the parties to the case are provided an opportunity to submit and file the original documents to substantiate their respective claims. Only those documents that are admitted by the parties are recorded by the court and a photocopy of the same must be presented to the opposite party.
- Framing of Issues : Issues are framed by the court on the basis of which arguments and examination of witnesses take place.
- List of Witnesses : All the witnesses the parties intend to produce and to be examined have to be presented before the court after which the date for the final hearing is fixed.
- Final hearing : On the day of the Final Hearing the arguments shall take place between both the parties on the issues framed by the court after which a final order is passed.
- Certified copy of Order : The court provides the parties with a certified copy of order having the seal and stamp of the court. It is useful in the case of appeal or in the execution of order.
Limitation Period for filing partition suit
Article 65 of The Limitation Act 1963 prescribes a time period of 12 years within which a person may file a suit for partition.
In Rachakonda Venkat Rao v. R. Satya Bai (11th September, 2003) , the Supreme Court explained the various steps involved in a suit for partition. Depending on the outcome of the adjudication, or area of agreement between the parties, the suit can be disposed of in one stroke, or by way of two decrees namely the preliminary and final. Where the subject-matter of the partition is a land, being part of estate and assessed to revenue, the steps subsequent to preliminary decree are required to be undertaken by the District Collector under Section 54 C.P.C. In other matters, the Court has to undertake steps to divide the properties by metes and bounds and deliver the same to the parties concerned in accordance with their respective shares. A party can seek delivery of possession in accordance with the final decree only after it is engrossed on a stamp of adequate value and by initiating execution proceedings. Any other step in between a preliminary and final decree is almost impermissible.
In Rajinder Kumar Kapur v. Madan Mohan Lal Kapur (29th July, 2019) the plaintiff who instituted the suit for partition was the son of the defendant’s deceased brother. The property under consideration originally belonged to Kundan Lal Kapur, the father of the defendant. The defendant filed an application for rejection of the suit. The documents that were presented before the court confirmed that the said property was in occupation and possession of the defendant. It was changed in his name after the execution of three general power of attorneys and relinquishment deeds in his favor by remaining heirs of Kundan Lal Kapur including plaintiff’s father. The said documents were executed in the year 1979 i.e. more than thirty six years before filing of partition suit.
The High Court observed that the General Power of Attorneys and the relinquishment deeds were duly registered under section 17 of The Registration Act 1908, with the relevant authorities and hence were not required to be proved by an attesting witness as it is clearly understood from section 68 of The Indian Evidence Act, 1872. It was stated under the provisions of the Registration Act read with the provisions of the Indian Evidence Act, registered documents ought to be read in evidence. The same carries a sanctity in law and are presumed to have been executed.” Further, “The fact that these documents were executed way back in 1979, i.e. almost 40 years ago and 36 years by the time the suit was filed, itself shows that they have enormous sanctity especially in view of Section 90 of the Evidence Act, 1872.” As all the General Power of Attorneys and relinquishment deeds were registered, the same were believed to be legal and valid. Considering all the circumstances and facts of the case the court held that the plaintiff did not have any cause of action and the suit was time-barred. His suit was rejected on the following two grounds. The application made by the defendant under Order 7, Rule 11 of CPC was permitted.
In the case of Uttam v. Subagh Singh and Ors.( March 2, 2016) a partition suit was instituted by the son in Dewas, Madhya Pradesh against his father and his father’s three brothers. He demanded 1/8th share in the suit property on the basis that the suit property was an ancestral property and being a coheir he had a right in the property by birth in compliance with the Mitakshara Law. The Supreme Court held that on the date of the birth of the plaintiff, the said ancestral property was not a joint family property and hence the partition of such a property would not be maintainable. The property that is inherited by a Hindu from his father’s father or father’s fathers’ father is an ancestral property.
In the case of Shashidhar & Ors. v. Ashwini Uma Mathad & Anr.(13th Jan, 2015) It was held that when a suit is filed by a co-owner or co-sharers or a coparcener for partition, it is necessary for the court to analyse the following details in the first instance which are as follows:
- The nature and character of properties in a suit i.e. the real owner of the suit properties, the source through which he/she has acquired the property whether it was his/her self- acquired property or ancestral property, joint property or coparcenary property in his possession and if so, who are/were the coparceners.
- How the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left a testamentary document in favour of any family member to inherit his/her share in properties and if so it’s effect.
- Whether all the properties are involved in the suit and all the coparceners are parties to a suit?
- Whether the properties in the suit are capable of being partitioned and if so, in what manner?
The above details are the material issues that the court needs to go through for proper disposal of the partition suit and the same has to be answered by the Court on the basis of family tree, inter se relations of the family members, evidence adduced and the principles of law applicable in this case.
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