Written by - Soumya singh
What is partition
The term ‘partition’ implies to divide the portion of a whole. Partition for the most part implies a division which means to deliver a portion of something to somebody. Alternatively, to divide an entirety into portions, each of which would be separate and having its different existence is called Partition.
What are the ways of partition in India?
A partition can be effectuated in the following ways:
Partition Deed
Family Settlement
Instituting a suit
In a Partition Deed, partition occurs by mutual consent amongst the co-owners. It is required that the partition deed is executed on a stamp paper and registered with the sub-registrar’s office. A legal and binding effect is given to the deed by its registration. An agreement between the family members through negotiation and talking is reached. This is done to prevent any disputes in court and to divide the family property peacefully.
Family Settlement: A settlement agreement is drawn in the same format as that of a partition deed but it does not require any registration and stamping. It is compulsory for all the family members to sign the family settlement agreement.
Partition Suit: When all the owners do not agree to the terms of division of the property and want different terms, one or more co-owners can file a partition suit in the court which has jurisdiction.
What is the law governing partition in India?
The following two Acts govern the partition in India:
During partition of a Hindu Joint Family: The Hindu Succession Act, 1956
During partition of any property which is owned jointly by either two or more than two co-owners: The Hindu Undivided Family [HUF] and The Hindu Partition Act of Property 1892
Who can file a suit for Partition?
No statutory guidelines or law has been specifically laid down to delineate or specify the class of people who qualify for filing of suit for partition in India. Thus, it can be inferred that there is no apparent restriction in place that restricts anyone from filing a suit for partition in India. Conversely, any person (where such person may or may not have any contingent or vested interest in the property) may file a suit for partition. Any or all the co-owners of the property can file a suit for partition in issue. In a situation where more than one heir exist, and if all of them are not willing to file a partition suit, it is not required for all the heirs to collectively participate in a suit for partition.
Possession of all the documents of property of which the partition is sought, is irrelevant. Certified copies of the same and a certificate of Market Value of the property can be obtained from the Sub-Registrar’s office. Additionally, the death certificates of the parents/grandparents should be acquired from the concerned municipal authorities.
What is the process of filing a partition suit in India? A specified process has to be followed for filing a partition suit or any kind of suit in India. If the mandated procedure is not followed, the suit can be dismissed on the ground of procedural impropriety.
The steps that have to be followed for filing a partition suit are as follows:
Filing of Suit/Plaint: In layman terms, a plaint is the legal form of complaint or allegations made by the party filing such a suit. The plaint has to be drafted and printed in accordance to the format that has been specified and mandated by the Court. The party filing the plaint is known as the plaintiff and the opposing party is known as Defendant. If the plaint is not filed within the limitation period that has been prescribed, such suit shall become time-barred. The following are the necessary details that should be mentioned in the plaint:
Name of the Court to determine jurisdiction
Name of the parties to the suit
Postal Address of the parties
Nature of such complaint etc
Additionally, the plaint should contain an affidavit or verification certifying that the content of the plaint are true to his knowledge
Power of Attorney/Vakalatnama: Vakalatnama or the Power of Attorney is the formal document that vests the power in the Advocate by the client to represent them in the concerned matter. A power of Attorney entitles the Advocate to argue the case of the client as the client’s duly-assigned agent. It is a mandatory document and in the absence of such a document, the Advocate is disentitled to represent the client.
Court Fee: Full payment of proper court fee is a necessary step before filing a suit.
Different court fee is applicable for different types of cases and across states. Determination of the applicable court fee is done and is pasted wherever necessary in the plaint.
After completion of this process, the court fixes a date for hearing of the arguments from both parties and determines on the basis of arguments if the case has enough merits to proceed forward or not. On the basis of such determination and the discretion of the court, it shall either:
Allow the suit
Or disallow the suit
If the court finds any merit in the suit then the court shall allow the suit to be entertained.
At the stage of hearing of arguments, if the Court feels that case has merits, a notice shall be issued by the Court to the opposite party demanding their appearance on the date fixed by the court for the next hearing.
Meanwhile, it is required that the plaintiff does the following:
The plaintiff must file the proper court fee
The plaintiff must file proper copies of the plaint in the Court
Filing of Written Statement: After the receipt of notice, the opposite party is supposed to appear in Court and file a written statement. A Written Statement, in layman terms, is a reply to the plaint filed by the Plaintiff. Such Written Statement must be filed within 30 days of the receipt of such notice and this time period can be extended up to 90 days, if the court permits. The contents of Written Statement must deny the allegations made in the Plaint. Any statement in the plaint which is not expressly denied is deemed to be accepted as such by the Defendant.
Replication: When the plaintiff replies to the Written Statement, such a document is called Replication. The Replication must deny the allegations made by the Defendant and any allegation which is not expressly denied in the Replication is deemed to have been accepted by the Plaintiff. Once the Replication has been filed, the pleadings are said to be complete.
Filings of documents: After the completion of pleadings, the Court gives an opportunity to both the parties to file all the relevant and necessary documents to substantiate their claims. The parties can object to the documents presented by each other. The Court can either admit or accept the documents that have been filed or reject them. If any document is not accepted or rejected, such document is returned back to the party who filed it. The documents filed are served to the other party/parties in the form of a photocopy/Xerox. The parties cannot rely on any documents that have not been filed by them, in the final arguments.
Framing of Issues: After the completion of the process described above, issues are framed by the Court upon which the case is to be decided. These issues comprise the foundation of the dispute between the parties and resolution of these issues helps in concluding the matter. The parties are required to stick to these issues in presenting their case. In the final order, each issue is dealt with separately by the Court.
List of Witness/Examination of Witness: The list of witnesses that the parties intend to produce before the court has to be filed within 15 days from the date of framing of issues or within any such periods that the Court may have prescribed. On the date of hearing, the witnesses are examined by the Court.
Final Hearing: Both the parties shall argue within the issues formed by the Court on the date of the final hearing. The Court shall pass a final order, after hearing the arguments from both sides.
After the final order has been passed by the court, the parties can collect the certified copy of the order from the Court. An application for a certified copy can be made to Registry of the Court along with the required fees.
What is the limitation period for a Partition suit?
The Limitation Act governs the period of limitation for partition suit. Accordingly, the period of limitation to file a partition suit is 12 years. The calculation for the period of 12 years of limitation shall begin from the day that the adverse claim to the plaintiff arises.
What is the time taken for completion of a Partition Suit?
Generally a partition suit takes 3 years for completion. The grant of preliminary decree takes around 2 years and another 1 year is given by the Court for obtaining the share in the property.
What is the amount of Court fee required?
The Court fee is not standardised and differs from State to State in India and the value of the partition Suit. The same can be ascertained with the help of a legal advisor or a lawyer.
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