This article is written by Yashika Kapoor, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
Table of Contents
Introduction
Partition is supposed to be a non-ideal scenario in the Indian context. However, the number of partition suits Indian Legal System witnesses has an altogether different story to relate. Under Hindu law, the arrangement of a Joint Family or Undivided Family is quite prevalent. This culture has attained enormous legal prominence in India. The joint family consists of lineage descendants from a common ancestor. The Hindu law elucidates the concept of the coparcenary. In a Hindu Undivided Family, the decision-making power lies with the Karta also called the head of the family. The male lineal descendants of Karta are called the coparceners. A coparcener possesses the right to ask for partition at any time. There is no restriction on him asking for a partition. The coparcenary property gets separated by way of partition. Thus, Partition essentially refers to bringing the joint status to an end.
The true test of the partition of property as per the Hindu Law is the intention of the members of the family to become separate owners.
The concept of Partition under the domain of family law is considered as one of the most comprehensive and complicated matters. As observed in various cases, families get parted away due to property-related conflicts. It is a well-accepted fact that partition has become quite common as every other person is greedy for attaining their separate share. The whole process of partition begins when the father, without making the will, unfortunately, deceases leaving behind the children to fight over property. Thereafter, when the sons fail in mutually settling the dispute over properties, the case is filed in the court of law. Subsequently, after 10-15 years of lengthy proceedings and arguments, the decision made by the court becomes final and binding.
Partition: Some Insights
Partition refers to the intentional severance of coparceny property by members of a joint family. In common parlance, the term ‘Partition’ is to divide, separate, or part away. Partition basically means to bring the joint status of a Hindu undivided family to an end. In simple terms, it implies breaking down or separating the joint status of a Hindu undivided family.
There are two schools of law namely:
- Mitakshara: Applicable in other parts of India.
- Dayabhaga: Applicable only in Bengal and Assam.
These schools of law govern the law of succession of HUF (Hindu Undivided Family). The partition under Mitakshara School is different from the Dayabhaga school.
Under the Mitakshara school of law, the partition takes place in two ways:
1) Severance of status: One coparcener expresses his intention to separate from the joint family property/system.
2) The actual division of property by metes and bounds: The second question that comes into place after severance of status is that what share or portion of the property is required to be given to the coparcener seeking a separate share in the property. Under Mitakshara school, the interest fluctuates according to the birth and death of the coparcener.
Hence, after the fulfillment of these conditions, the partition under Mitakshara School is concluded.
According to the Dayabhaga school, the partition is concluded by the actual division of property by metes and bounds. The interest in the property is fixed and does not fluctuate. When the partition is affected, the coparcener is eligible to take his share only.
Note: There is a requirement of at least two coparceners to affect the partition.
Inheritance under a Will
Will and personal laws are two ways by which inheritance is governed. The term “will” or “testament” implies a legal declaration wherein an individual articulates his wish of allotting his property or estate in the names of persons/persons who shall manage his estate. After the death of the individual, the property is transferred to ones whose names are provided in the will. In this process, an executor is appointed by the testator who aids in the distribution of property. It is important to understand that a will is executed for the distribution/division of self-acquired property or separate property of the testator only. Whereas in the case of division/distribution of ancestral property, the partition is effectuated by adhering to the Hindu Succession Act, 1956.
Partition in case of self-acquired property
What is the legal scenario with respect to partition of self-acquired property? Our courts have played a great role in bringing clarity to the provisions of self-acquired property. In Sachin & Anr v. Jhabbu Lal & Anr, a question pertaining to the son’s right to claim ownership of a self-acquired property of his parents was discussed. The court observed that a son has no legal right in the self-acquired property of his parents unless he has proof of contribution towards the acquisition of the property. He may be allowed to use the property with permission from his parents, but they are not obligated to allow him to live there. In fact in a recent case of 2019, Delhi High court held that a self-acquired property cannot be partitioned during the lifetime of the father.
Hence, as per the provision of the Hindu Succession Act, 1956, and the aforesaid judgment, it can be concluded that a son does not possess a legal right over the self-acquired property of his parents. Nevertheless, he is entitled to claim his share if he proves by way of evidence his contribution towards the acquisition of the property. In an event where the father bequeaths his share of property by way of will or gift to a third party, the son will be not in a position to demand his share over the self-acquired property. Even a grandson does not hold any rights over the self-acquired property of his grandfather.
Rules for distribution of property after the death of the father
All the legal heirs falling under Class I are eligible to get their respective shares in the partition of a suit. The son, as well as the daughter, are entitled to receive an equal share in the partition property. Illustration: In a case where X, the father of two sons (A and B) and one daughter (C) and husband of widowed Y, dies and leaves behind his property, then, the property will be divided into four equal parts whereby A, B, C, and Y will receive their 1/4th share.
A stepson or stepdaughter is not eligible to demand partition as they have no legal right in ancestral property. As per the Hindu Succession Act, 1956, the definition of the term ‘daughter’ does not include the stepdaughter. Hence, the only way wherein the stepson or stepdaughter can receive a share is when the individual making the will bequeaths his share in favour of the stepson or stepdaughter.
Partition in case of ancestral property
Ancestral property is defined as that property that is inherited up to three generations. Before Hindu Succession (Amendment) Act, 2005, only males were considered as coparceners. However, after the 2005 Amendment, the rule of considering only males as coparceners stood dissolved and the concept of testamentary succession and intestate succession came into being. Under the testamentary succession, the testator can execute the will and allocate his self-acquired property in favour of son, daughter, widow, or any third person. However, the case is different under intestate succession. The term ‘Intestate succession’, means if a person dies without making a will (for division of self-acquired property) or where the division of ancestral property is involved. The Hindu Succession (Amendment) Act, 2005 introduced the right of daughters as coparceners since birth and also held that daughters will have equal liability.
Keeping in mind the Hindu Laws, the son or daughter automatically obtains his/her right in the ancestral property. The right to acquire an equal share in the property is attained as soon as the son or daughter takes birth in the family. A son holds the right to demand partition and claim his share in the ancestral property throughout the lifespan of his father. The only requirement to be fulfilled is that such a claimant applicant must prove his succession.
Illustration
Mr. Singh has two sons and one daughter namely, Mr. Krish, Mr. Ankit, and Ms. Manu respectively. Mr. Singh dies without making a will. Mr. Singh’s children after a few years dispute over the partition of the ancestral property belonging to Mr. Singh. Hence, all the children (including the daughter) are eligible to acquire an equal share in the property. Moreover, as per the latest judgment in Vineeta Sharma v. Rakesh Sharma, the Hon’ble Supreme Court of India expanded women’s right to be a joint legal heir and inherit ancestral property on terms equal to male heirs. However, in case the dispute is not settled mutually, the parties are then required to file a partition suit in the civil court.
When father gifts a property
In a case where a father gifts property to his son, then such property is not reviewed as ancestral property. Thus, a son is permitted to claim his share in such property which is already gifted to the son’s father by his grandfather. However, one needs to note that in case, a son or daughter receives property by way of gift, then such property turns into their self-acquired property and the grandchildren possess no legal right over such property. However, to declare such a property ancestral, the grandfather must indicate his intention to do so.
Laws governing Partition Suits
In Hindus, the laws relating to the partition of property is governed by the following:
- The Hindu Succession Act, 1956
- Code of Civil Procedure, 1860 (Section 54, Order 20 Rule 18, and Order 26 Rule 13 & 14)
Hence, in India, the laws governing the partition of ancestral property are covered under personal religious laws. Even though there are certain provisions specifically laid down in the Act, still, the cases of property partition among families are not unusual.
Who is eligible for filing a Partition Suit?
As such, no provision talks about the eligibility criteria for filing a partition suit. As per the general rule, non-coparceners are ineligible to demand their share in the property.
The alienee (person to whom property is transferred) or the purchaser in the execution of the court’s decree possesses a right to demand partition and claim their shares. It is important to note that both the alienee and purchaser can only demand partial partition i.e. in respect of property in which they have an interest. After the respective share of alienee or purchaser is given to them, the remaining share of the partition property continues among coparceners. Hereafter, any or all the co-owners of the property in question are eligible to file a partition suit.
In case, where there are several legal heirs and not everyone is agreeable in participating in the partition suit, then, all or any one of them on behalf of others can file a partition suit.
The coparcener needs to take note of the fact that before filing a partition suit in the court of law, a legal notice is mandatorily required to be sent to other legal heirs or co-owners of the property. As soon as the period mentioned in the legal notice gets over, the legal heir or co-owner can further proceed with filing a partition suit.
Thus, with the assistance of a legal professional, any coparcener or legal heir having a contingent or vested interest in the property is eligible to file a partition suit in a civil court.
Documents required to file a Partition Suit
There is no specific provision that provides for the documents required in the partition of the property. In case, if the claimant or party does not have the relevant documents, he or she still possesses complete rights for filing a partition suit.
The foremost document needed in filing a partition suit is the certified copy or the original copy of all the title deeds of the property which one is claiming to be an ancestral property.
Secondly, an appropriate description of the property is required in filing the partition suit. It must include:
- Area
- Location
- Survey Numbers
- Geographical Boundaries
- Any other property details
There must be a market valuation of the property on which the claimants seek partition. The valuation can be done with the help of the concerned sub-registrar.
Death Certificate of the claimant’s grandparent or parents, whichever applies to the respective case is required in filing a partition suit. These certificates can be easily taken from the concerned municipal authorities.
Note: The partition suit of the property must only be filed in the court having jurisdiction over the partition property. Guidance from the expert is the best option to know the complete checklist of documents required in a partition suit.
What is the limitation period required in filing a partition suit?
The law of limitation governs the partition of property. According to the Limitation Act, the limitation period to file a partition suit is 12 years (Article 65 of the Limitation Act). The period of such 12 years begins when there is a notification of the adverse claim to the plaintiff or the co-owners in the public domain. Adverse claim means when the claimant possesses a property interest in the financial asset and such right of the claimant is violated at the hands of other people by holding, transferring, or dealing with the financial asset.
Note: The burden to prove that the partition suit is time-barred lies on the opposite party. Moreover, the opposite party is required to mention this limitation in their written statement along with facts and evidence.
Ways to file Partition Suit in India
There are three ways by which the partition can be effectuated:
- Partition Deed
- Family Settlement
- Instituting a suit
Partition Deed: When a partition occurs by way of mutual consent, then a partition deed is entered among the co-owners. The partition deed is a written document related to transferring the title or the ownership of property. The deed is executed on a stamp paper and registered with the sub-registrar’s office. Once the partition deed gets registered, it becomes legal and binding. Partition by way of partition deed is quite simpler as the same takes place through negotiations between the families and avoids the long-standing decisions of the court.
A Partition Deed includes:
- Resolution and settlement of the dispute;
- Defined share in the partition;
- Production of title deeds;
- Mentioning all the circumstances;
- Complying with existing laws.
Family Settlement: A family settlement agreement is similar to the partition deed. However, one does not involve any formalities of registration and stamping. Signatures of all the family members are a must in the family settlement agreement. Partition through voluntary settlement must be voluntary and without any force, threat, coercion, or fraud. It must be a fair and equitable settlement.
Partition Suit: A partition suit is instituted when the above-mentioned options fail as the claimants have different points of view and don’t settle at a common resolution. Ultimately, the claimants are left to file a partition suit in the court having its jurisdiction.
Divisible and Non-Divisible property during Partition
The general rule states that all the property belonging to the joint Hindu family property is reserved for partition. However, certain properties are incapable of division. Hence, such properties are not entitled to be divided.
Even the dwelling house, staircase, well, documents, tanks, and other such things are indivisible. For instance, in the temple, idols are a part of HUF’s property and cannot be divided or be sold due to attachments, emotions, and rare items of property valuation. Thus, the possession of such things can be given to the senior coparcener. Other coparceners can have access to visit them for worshiping or can use turns.
Procedure of filing the Partition Suit
The member of the Hindu Undivided Family must express his intention for seeking partition. This is the first and foremost necessity required while initiating a partition suit. All the members of the Hindu Undivided Family must be aware of such deceleration. Hence, the partition of the property will occur when all the members of the Hindu Undivided Family agree to the terms of the partition.
When a suit is filed in court, a proper procedure is required to be followed, failing which the suit shall be dismissed rightly on the mere grounds of non-compliance with the procedure.
Following are the steps required to be followed:
- Filing of Suit/Plaint: The process of filing a partition suit commences with filing a plaint. The plaint is filed by the complainant. In simple terms, the plaint includes the complaint or the allegations made against the accused. The plaint must be comprehensive and incorporate all facts crucial to the case. It must be as per the format prescribed by the court. The focus must also be given to the alignment as approved by the court. The most important criteria which the complainant filing the plaint must adhere to is filing the plaint within the limitation period as otherwise the suit shall be barred.
The Plaint must incorporate:
- Name of the concerned court and the Judge
- Name of the Parties to the suit
- Address of the parties
- Nature of the complaint or allegation along with facts of the case involved
- Suitable provisions and reference to case laws
- Territorial Jurisdiction
- Pecuniary Jurisdiction
- Limitation Period
- Prayer
- Affidavit
- Verification
- Vakalatnama: An Advocate needs to get the Vakalatnama signed by its client. This document permits the advocate to represent his party before the court relating to the partition matter. This piece of document is a must and essential. No advocate is permitted to represent his case without filing the vakalatnama. By signing the Vakalatnama, the client gives his/her consent and submits the documents.
- Payment of Court Fee: Payment of court fee is a must and every suit filed in the court necessitates the full payment of the proper court fee. Thus, the criteria for submitting the court fee are necessary to be fulfilled. Now, the amount of the court fee varies from state to state. After the successful payment of the court fee, the court will fix a date for a “Hearing”. It will be decided by the court on the date of hearing whether the issue will be admissible or not. Hence, the court based on merits and discretion shall either
- Allow the Suit: The court will allow the suit in case it finds that the merits of the case are satisfactory and the aggrieved requires justice.
- Disallow the Suit: The court will dismiss the suit without even calling the opposite party in case the court finds that no relevant merits or facts are divulged and the issue needs no intervention of the court.
- Hearing date: On the hearing date, i.e. after the courts admits the case, notices are issued by the opposite party asking for their appearance in the court. Following which next date of hearing is fixed according to the availability of the parties
- The plaintiff is required to adhere to the following steps:
- File the amount of court fee.
- File the copies of the plaint in the court.
Note: For every defendant, 2 copies are required to be submitted out of which one will go by Speed Post and the other by Ordinary Post.
- Filing of Written Statement [W.S.]: As soon as the opposite party acknowledges the receipt of the notice, the party is required to appear in the court and file his Written Statement. The written statement means replying to the plaint. It is required to be filed within 30 days of the receipt of the notice. However, in case the court allows for the extension of filing the WS after considering the grounds for not replying timely, it will further extend such a period to 90 days. The Written Statement must also explicitly deny all the false allegations stated in the Plaint.
Note: Allegations which are not explicitly denied will be deemed to be accepted.
- Replication: A replication refers to a reply to the written statement submitted by the opposite party/parties. Such replication unequivocally denies all the allegations which are falsely asserted by the Opposite Party/Parties. However, any such allegation which is not explicitly denied shall be deemed to be admitted. After the filing of the replication, the pleadings are said to be completed.
- Filing of other relevant documents: After the pleadings are concluded, both parties are asked to file all relevant documents pertaining to the case of partition property in order to validate their claims. Any document which is rejected or not admitted by the court is returned to the party who filed it. All the documents filed by the opposite party/parties will be served to the other party/parties as a photocopy.
- Framing of Issues: After the above-mentioned process gets completed, the court frames issues. Such issues are framed in accordance with the interest of both parties. These issues are merely the basic problems. The court while giving the final order will deal specifically with each issue.
- List of Witness/Examination of Witness: After the submission of the list of witnesses involved, the counsels may re-examine or cross-examines them.
- Final Hearing: On the date of the final hearing, the counsels of the plaintiff and defendant will argue and assert their views. Such arguments will sternly pertain to the issues framed by the court. After hearing the arguments from both parties, the court will then pass a “Final Order” either on that very day or on forthcoming dates.
- Receiving the Certified Copy of the Order: One can approach the court to collect the certified copy of the order. The appeal can be made once the aggrieved owns the certified copy.
What is the time taken in a partition suit?
There is no fixed time as to when and how a partition suit will be concluded. The period needed in deciding a partition suit differs from case to case. Taking the precedents as examples, it can be assumed that the minimum time required in attaining a decree or judgment in a partition suit is three years. Following which two years are required in getting a preliminary decree and thereafter another one year is allowed by the court to get the share in the property. Hence, in total, a minimum period of three years is equipped. Although, as already mentioned, there can be an extension of time with regards to the complexity of the matter.
What is the prescribed Court Fee?
The court fee differs from state to state. It is not consistent and equivalent in all the places. The amount of the court fee depends upon the value of the suit property.
Can a minor file a partition suit?
A major and sound coparcener possesses the right to file the partition suit. They are not required to provide any sort of explanation for seeking the partition. The major coparcener is simply required to express his intention to the Karta.
The right of a minor coparcener is similar to the share of a major coparcener. The minor cannot directly file a case in court. He can file the case only with the help of the next friend. The court will see whether the partition will be for the benefit of the minor or not.
In case, the minor’s share is not reserved or an unequal share is granted in favour of the minor, the minor can file a suit with the help of the court. A suit can be filed for the re-opening of the partition.
Can a coparcener sell the property during the pendency of suit?
No, a coparcener cannot sell the property during the pendency of the suit. Section 52 of the Transfer of Property Act, 1882 provides transfer of property of a pending suit wherein it is stated that in case of any suit or proceedings is continuing and any right to immovable property is directly and specifically in question, such property cannot be transferred or otherwise dealt with by any party to the suit or proceeding.
Let us now look at the essential clauses that constitute a Partition suit.
Draft of partition suit
SUIT FOR PARTITION OF JOINT HINDU FAMILY PROPERTY:
In the court of Civil Judge (Senior Division) Dehradun
Original Suit No. …………………of 2014
- Sri ______ s/o Late ____________ r/o ……………………………………………Delhi
Plaintiff
Versus
1. Sri ……………………………………………… .s/o ________ r/o………………………………………
2. Sri …………………………………………………s/o _________ r/o………………………………………
3. Sri …………………………………………………s/o _________ r/o……………………………………..
4.Sri ………………………………………………….s/o ____________ r/o …………………………………..
Defendant
5. Sri Rati Ram s/o Sri Sati Ram r/o 171 Shakti Vihar Dehradun.
Performa defendant.
Sir,
The above named plaintiff states as follows:
1. That the plaintiff and the defendant No.1 to 4 are members of a joint Hindu family. Defendant No.1 to 3 and plaintiff are real brothers whereas defendant No.4 is the son of late _______ who is also a real brother of plaintiff and defendant No. 1 to 3. Unfortunately, he died on…………………leaving behind his only son (defendant No.4).
2. That the father of the plaintiff and defendant No.1 to 4 late Sri ——- is the Karta of joint Hindu family purchased the property in suit, from Sri _____vide sale deed dated ………….which is duly registered in the office of sub-registrar Dehradun in bahi No. …..volume ………page No. ………registered on ………….full details of which are given at the end of this plaint in the schedule of property. Late ______ died on ……………………. intestate.
3. That the plaintiff and defendant No.1 to 4 are in joint possession of the property in suit. Plaintiff and defendant No.1 to 4 have an equal undivided share in the whole of the property. In other words, each has 1/5th share of the whole of the property dispute.
4. That the defendant No. 4 has sold his undivided 1/5th share of the suit property to Sri _______-, who is made a party in the suit as a Performa defendant and no relief claimed against him.
5. That the Proforma defendant No.5 is trying to get possession in the joint property by hook and crook and threatening for dire consequences.
6. For the above reasons, it would be to the plaintiff’s benefit to have his share separated by a partition.
7. That the plaintiff claims the partition of the said property and separate possession of his 1/5th share.
8. That the cause of action for the said suit arose on……………when……………………….
9. That the suit property is situated in Delhi and all the parties permanently residing in Delhi, within the jurisdiction of this honorable court. Hence this court has jurisdiction to hear and adjudicate this suit.
10. For the purpose of court fees and jurisdiction, a suit valued at rupees ……………… which is a market value of the plaintiff’s 1/5th share of the disputed property and appropriate court fees thereupon being paid.
The plaintiff claims:
(1)……………………………………………………………………………………………………………
(2)……………………………………………………………………………………………………………
(3)……………………………………………………………………………………………………………
Schedule of property:
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
Signature
Verification:
I, the above named plaintiff, declare that the contents of paragraphs 1 to 7 of the plaint are true within my personal knowledge, and that the contents of paragraphs 8 to 10 of the plaint are based on legal advice received by me and believed to be correct. Verified on………… at Delhi.
Date………….
Place, Delhi. Signature
Essential Components in a Partition Suit
- Introduction of the parties
- Facts of the case
- What led to Partition
- Reasons for Partition
- Cause of Action
- Jurisdiction
- Court Fee
- Relief
- Schedule of Property
- Verification
Conclusion
Out of the three ways for filing a partition suit, a partition deed is the best alternative. Once the partition deed is registered, it becomes legal and binding. Hence, this option helps the disputing parties to avoid a long and expensive road to justice by evading the lengthy proceedings of the court and the partition deed also acts as evidence for future references. Partition through Family settlement is also recommended for the parties who may wish to skip the formalities of registration.
The partition suits can be filed by son or daughter. It is a known fact that the position of daughters’ rights during partition of property has been controversial. It was expected that after the Hindu Succession (Amendment) Act, 2005 a change would be observed in the social status of the daughters. However, the 2015 judgment (Prakash vs Phulavati) restricted the daughters to claim their share in the ancestral property.
Nevertheless, after 15 long years of the amendment, the Hon’ble Supreme Court, in the celebrated judgment of Vineeta Sharma v. Rakesh Sharma, cleared the ambiguity of the position of daughter’s right in ancestral property. The time occupied by the court in interpreting the amendment must have made substantial losses to daughters who filed their claim in the ancestral property but weren’t given the same. Other than that, a child in the womb is entitled to get an equal share in the partition of the property. Be it with a son or a daughter, they are equally entitled to acquire an equal share in the property. As per Section 12 of the Hindu Adoption and Maintenance Act, 1956, an adopted child is eligible to acquire an equal share in the partition property.
Witnessing the increase in the no. of partition suits, The Hon’ble Supreme Court in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd listed the suits and cases that are suitable to be resolved by the mechanisms of Alternative Dispute Resolution. The disputes relating to partition/division among family members, coparceners, or co-owners may be referred to ADR processes. Thus, to avoid litigation costs, a complex procedure of the court, and save the crucial time of the courts, it is advisable for the disputing parties to resolve the partition suit by utilizing the ADR mechanisms.
References
- https://www.nrilegalservices.com/division-of-property-between-brother-sister-after-fathers-death/
- https://www.makaan.com/iq/legal-taxes-laws/find-out-if-you-have-a-right-in-your-fathers-property
- https://www.makaan.com/iq/legal-taxes-laws/partition-suit-and-legal-process
- https://www.myadvo.in/blog/process-of-filing-partition-suit
- https://arthistoryproject.com/timeline/the-ancient-world/classical-india/the-laws-of-manu/chapter-9/
- https://www.myadvo.in/blog/process-of-filing-partition-suit
- https://sites.google.com/site/sarinadvocate/partition-suit/models-of-plaints-in-partition-suit
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