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This article is written by Zeeshan Ahmad pursuing Certificate Course in Advanced Civil Litigation from LawSikho.

What does partition mean?

Partition refers to the process by which jointly held property, along with associated rights and interests therein are divided into shares to which each party gets exclusively entitled to. The partition concludes with the end of joint ownership and each party gets their eligible share.

In another sense, a partition entitles the parties of partition to their respective share of the property and end the joint ownership or title. It is a redistribution of property among the joint owners/coparceners leading to the termination of joint possession and parties get the exclusive rights of their share of the property. The partition can be done among the sharers of the property provided they have a valid interest in the property. A person with no bonafide interest in the property cannot participate in the partition nor can claim any share. The article talks about the important points which are to be considered while filing a petition suit. The article also discusses the laws which govern the partition of property in India. In the end, a model partition suit has also been shared for reference.

What are the ways of partitioning?

Partition deed

In the case of a partition by mutual consent, where parties agree to the terms of division, a partition can be effected through a deed.  A partition deed is a legal document that divides the jointly held property according to the respective shares of the co-owners. It clearly defines the shares of the property to which every party is entitled. The deed can be executed through registration in the office of the registrar/sub-registrar of the place the property is situated. After registration, the partition deed becomes legal and binding.

Family settlement agreement

The family settlement agreement is another way of partitioning. The difference between a family settlement agreement and a partition deed is that while a partition deed necessarily requires stamp duty and registration, a family settlement agreement doesn’t necessarily require so. The Supreme Court laid down valid essentials of a settlement agreement in the case of Kale and others vs. Deputy Director of Consolidation and ors. 1976. Those are:

  • It must be a bona fide one and made in a manner that it resolves family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
  • It should be made voluntarily (no element of fraud, coercion or undue influence)
  • The arrangement can be oral and unregistered.
  • However, if it is reduced to writing, it must be registered.
  • The parties to the arrangement must be family members having some antecedent title, claim or interest even a possible claim in the property ‘It which is acknowledged by the parties to the settlement.
  • If all the elements are fulfilled, such an arrangement is final and binding on the parties to the settlement.

Partition suit

In case the co-owners are not agreeable to a partition of the property and only one or more of the co-owners want the partition or there is any dispute in partition, any co-owner can reach the court to institute a partition suit. A partition suit is a proceeding instituted in a competent court for the purpose of dividing the jointly held property by legal means. This suit is initiated only after a legal notice regarding the division of a property preceded by a sharer is disregarded by other co-owners of the property.

Laws governing partition

Hindu Succession Act, 1956

The Hindu Succession Act, 1956 is a post-independence Act enacted to codify the succession and inheritance of Hindus, Buddhists, Sikhs, and Jains and any other person who is not Muslim, Christian, Parsi or a Jew. It deals with the intestate succession of both self-acquired property and ancestral property. The Act provides separate rules and provisions for both male and female and grants them their inheritance rights

Muslim Law of inheritance

The personal subjects of Muslims in India which include the affairs of marriage, succession, inheritance, adoption and like matters are governed by their personal law which is called Sharia or Muslim personal law in general. Sharia is applicable in the personal affairs of Muslims in India through the Muslim Personal Law (Shariat) Application Act, 1937 and the major and primary source of Sharia is the Holy Quran and the Hadith. The Muslim Law of inheritance is a part of Sharia and it governs the succession and inheritance of Muslims. Both males and females have been duly provided with their inheritance rights under the scheme of Muslim Law of inheritance. There is no differentiation of self-acquired and ancestral property in Muslim Law and a basic feature of Muslim Law of inheritance is that the inheritance rights are devolved upon heirs only after the death of the ancestor of the previous heir. This is in contrast to the Hindu Succession Act where property rights have been granted in the form of coparceners and heirs possess property rights even when the ancestor or the previous heir is alive.

Indian Succession Act, 1925

The Indian Succession Act provides for both testamentary and intestate succession. The Act applies to all the communities in case of testamentary succession except Muslims. In the case of intestate succession, it applies to Christian and Parsis of India. Part V of the Act which deals with intestate succession does not apply to the property of any Hindus, Buddhists, Muslims, Sikhs or Jains (Section 29, Indian Succession Act).

Partition Act, 1893

The Partition Act was enacted in 1893 to provide for the sale of property in cases where the court finds out that it is difficult to divide the property in suit reasonably and conveniently and it is more beneficial to sell the property and distribute the proceeds among the share-holders. The Act provided that the court may direct the sale of property and distribution of proceeds in such cases.

Code of Civil Procedure, 1908

The procedural part is governed by the Code of Civil Procedure, 1908 under its various provisions. Some of the important ones are Section 54, Order XX Rule 18, and Order XXVI Rule 13 & 14). Order XXVI Rule 13 provides for the issuance of a commission to make the partition or separation according to the established rights. Rule 14 provides for the division of property by such appointed commissioner and its allotment to the shareholders.

Important things to remember while filing a partition suit

  • Nature of the property

At the first instance it is important to ascertain the nature and character of the property that is how the property was acquired, who was the original owner of the property, whether the property is self-acquired or ancestral, if a joint-coparcenary property then who are the coparceners etc. 

  • Legal notice 

Issuance of legal notice is peremptory to a filing of a partition suit. When a co-owner wants a partition, it becomes necessary to issue a legal notice to the other co-owners demanding a division of the property amicably. If notice fails, a co-owner can also opt for mediation in order to settle the dispute and divide the property consensually at the pre litigation stage. If these means do not get an adequate response, a co-owner can institute a partition suit in a competent court and produce all the relevant documents.

  • The substantive law governing the succession rights of the parties

It is essential to consider the substantive law governing the succession rights of the parties. In India succession is governed by the personal laws of the parties. Hindus are governed by the Hindu Succession Act 1956, Muslims are governed by the Muslim Personal Law (Shariat) Application Act 1937, Christians are governed by the Indian Succession Act 1925. The Indian Succession Act 1925 can also be applied to parties of other religions depending upon their nature of marriage and certain other provisions including when the nature of succession is testamentary. 

  • Cause of action

A partition suit is a plaint in nature. Hence a proper cause of action is a must for instituting a partition suit.

  • Law of limitation 

In the case of Vidya Devi v. Prem Prakash and ors. 1980, the Supreme Court observed that the legislature has not prescribed any period of limitation before filing a Partition Suit. A partition suit is an incident attached to the jointly held property and is a running cause of action when a co-owner doesn’t want to keep his share undivided with the other co-owners. However, the limitation Act provides for limitation after a right to sue accrues through any event in dispute. The Supreme Court observed in the case of Shubh Karan Bubna v. Sita Karan Bubna that Section 3 of the Limitation Act, 1963 provided that subject to Sections 4 to 24, every suit instituted, appeal preferred and the application made after the prescribed period shall be dismissed. This period of limitation is to be defined as per provisions of the concerned Act. Article 65 of the Limitation Act provides for a timeline of 12 years within which an aggrieved person is entitled to sue for recovery of possession of immovable property based on proprietary titles and relevant documents. This provision is relevant in case of adverse possession of the co-owned property. 

Generally, there is a limitation of three years to file a civil suit after a cause of action arises.

  • Essential documents 

  • Identity proof documents of the petitioner.
  • Birth and Residence proof of the petitioner.
  • Certified copy of all the property related deeds i.e. the title deeds.
  • Will (if any).
  • Affidavit.
  • Document certifying the valuation of the property.
  • Jurisdiction of the court

The jurisdiction of the court must be looked into before filing a partition suit, especially the territorial jurisdiction.

Conclusion

A partition suit is a legal proceeding instituted in a competent court for the division of the jointly held property among the co-owners and to settle the matters in a dispute related to the partition. While filing a partition suit, the most important thing is to know the substantive law applicable to the parties in dispute. Other important things are the issuance of prior notice to the co-owners, taking care of the limitation period (when applicable), cause of action, keeping the essential documents at hand, and filing the suit in the proper jurisdiction. A sample of a partition suit is attached to give a clear picture of the contents and drafting involved in such a suit.

Model partition suit

A suit for partition and permanent injunction of property

IN THE COURT OF THE CIVIL JUDGE, SENIOR DIVISION, SAMASTIPUR BIHAR

In the matter of:

Ritu Raj Yadav 

Age- 25 years, S/o Suresh Kumar Roy

Insurance Agent, Resident of Keshopatti, Samastipur

                                                                                    …………………….Plaintiff

Versus

  1. Suresh Kumar Roy

Age- 55 years, S/o Nilesh Kumar Roy

  1. Ravi Ranjan Yadav

Age -28 years, S/o Suresh Kumar Roy,

Both Residents of Keshopatti, Samastipur

                                                                                     ………………………..Defendants

A SUIT FOR PARTITION & PERMANENT INJUNCTION OF PROPERTY

Respectfully showeth:-

The plaintiff above named submits this plaint, praying to state as follows :

  1. That defendant No. 1 is the father of the plaintiff and defendant No. 2, while defendant No. 2 and the plaintiff are real brothers.
  2. That all the pieces and parcels of lands situated within the Registration  Division  &  District  Samastipur, within the local limits of the Samastipur Zila Parishad.
  3. That all the above-mentioned properties were ancestral, and therein, the plaintiff had undivided l/3rd share in the property.
  4. The plaintiff is working as an Insurance Agent, and because of his employment, he is required to run from place to place, and hence, the properties are managed and looked after by the defendants only.
  5. Taking the benefit of this position, the defendants started acting in such a manner that the plaintiff is put to the maximum loss, and, accordingly, for no need or legal necessity, the defendant No. 1, at the instigation of the defendant No. 2, sold out the land properties mentioned above.
  6. That in fact, defendant No. 1 does not have any need for money, and the income from the ancestral properties is much more than his needs.
  7. That the defendant No. 2 is also employed as a teacher, and his salary itself is sufficient to meet his expenses, and, as such, there was neither any legal necessity, nor was there any benefit of the estate, and hence, the defendant No. 1 did not have any right, title or interest to transfer the said properties without the plaintiff’s consent, and hence, those sale-deeds are not valid and binding on the share of the plaintiff in the said properties.
  8. That the properties have been sold by defendant No. 1 in favour of Karan, who happens to be the son-in-law of defendant No. 1.
  9. That the plaintiff submits that the properties are the lands quite rich in quality and fertile.  However, they have been shown to have been sold at an amount of Rs.40,000/-, which is much below the said transaction. It has been affected with the intention of defeating the rights of the present plaintiff, and, hence, on this count also, the said sale deeds are invalid and inoperative. However, the plaintiff is filing a separate suit for declaration and cancellation of the said sale deeds, and he deserves his right to do so in the present suit.
  10. After knowing about the said transactions, the plaintiff had been to his village and then he called upon the defendants to explain as to why the said properties were transferred without his knowledge. However, the defendants refused to reply to the queries, and thereupon, the plaintiff demanded the partition of his share in the family properties.  However, the defendants specifically denied by asserting that they would not give any property to the plaintiff.
  11. That the cause of action for the present suit first arose on 10.12.20, when the partition was demanded and denied and hence, the suit filed today is within limitation.
  12. That a legal notice has already been sent on 05.12.20 demanding the partition of the property. 
  13. That the properties are situated within the local limits of the jurisdiction of this Court, and hence, this Hon’ble Court has jurisdiction to try and decide this suit.
  14. That the properties described in Para 2 above being agricultural lands are valued at 20 times the revenue assessment, and proper court fee stamp is paid herewith. In addition to this, for declaration and injunction, the suit is valued and the additional court fee stamp is paid thereon.
  15. That the plaintiff, therefore, prays that –

(a)It is declared that the plaintiff is entitled to a one-third share
in the suit properties;

(b)The plaintiff’s one-third share be divided by metes and bounds
and given in his possession;

(c) While asserting the plaintiff’s one-third share, the properties sold, as described above be taken into account and included in the shares, those may be assigned to the defendants, and, thus, the plaintiff be given his one-third share of all the properties.

(d) The defendants be permanently restrained from obstructing or interfering with the possession of the plaintiff of his properties;

(e) The plaintiff be paid his costs from the defendants, and

(f) Any other orders in the interest of justice be kindly passed.

Sd/- Ritu Raj Yadav
Dated 28.03.21                                                                  …………………..PLAINTIFF

Sd/- Zeeshan Ahmad 

ADVOCATE FOR PLAINTIFF

VERIFICATION

I, Ritu Raj Yadav, the present plaintiff, do hereby state on solemn affirmation
that the contents of this plaint in paras 1 to 15 are true and correct to the
best of my knowledge and belief, and I have signed here under.

Sd/-Ritu Raj Yadav

PLAINTIFF                                                                   

AFFIDAVIT

IN THE COURT OF THE CIVIL JUDGE, SENIOR DIVISION, SAMASTIPUR BIHAR

Civil suit- 123/2021

In the matter of:

Ritu Raj Yadav …………………..Plaintiff

Versus

  1. Suresh Kumar Roy
  2. Ravi Ranjan Yadav …………………Defendants

Affidavit of Ritu Raj Yadav, Age- 25 years, Occupation – Service, Resident of Keshopatti, Samastipur. I the above-named deponent do hereby solemnly affirm and declare as under-

That I am the plaintiff in the above-noted matter, well conversant with the facts of the case and as such, competent to swear and affirm this affidavit.

That the contents of the accompanying suit have been drafted by my counsel under my instructions and after understanding the same in my language I say that the contents of the same are true and correct to my knowledge, save legal submissions which are true and correct on legal advice received and believed to be correct.

That the contents of the accompanying suit may be read as part and parcel of this affidavit as the same are not repeated herein for the sake of brevity.

Deponent 

28.03.21

References 


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