Process of filing Partition Suit in India


In simple words, Partition can be defined as the division of property, amongst those who are entitled to receiving it. According to the Black’s Law Dictionary, Partition can be defined as the dividing of land held by coparceners, joint tenants, or tenants in common, into specific portions, so that they may hold them in severalty. It is a division of personal or real property between co-proprietors and co-owners. 

In case the property is held jointly, and the co-sharers mutually decide among themselves to divide the property and agree to a specific share, i.e. partition by mutual consent. In case there is a dispute, the parties can file for a suit for partition in a civil court. 

As stated in the case of R.C. Cooper vs. Union of India, the term property includes both corporeal things such as furniture, land, and incorporeal things such as patents and copyright. Further, in the case of Raichand vs. Dattatrya, it was stated that “the term property in its most comprehensive sense includes all legal rights of an individual except his personal rights, which constitute his status or personal condition”. 

What is a Partition Suit?

In case the co-owners are not agreeable to the terms of division of the property and only one or more of the co-owners want the partition, the mode of partition is a bit different. In such a case, a partition suit is required to be filed before the appropriate court of law.

While negotiating about the property partition, one needs to formulate a Partition Deed with respect to the Partition Act, 1893. It can be defined as an official document created either via a Court Order or via party negotiations. It instructs the respective property portions that would be claimed by each party. 

A Partition Deed also requires approval by the Court. This approved Partition Deed must be registered at the Sub-Registrar’s Office to give it a legal and binding effect. However, if the families wantto settle the dispute in the court, they need to file a Suit of Partition in court, where the case proceedings will take place. 

What is the law governing Partition in India?

1. Partition of a Hindu Joint Family: The Hindu Succession Act, 1956

2. Partition of property owned jointly by either two or more than co-owners: The Hindu Undivided Family and The Hindu Partition Act of Property, 1892. 

Who can file a suit for Partition?

There are no statutory guidelines to specify the class of people who qualify for filing a Partition Suit in India. Any person,who may or may not have a contingent or vested interest in the property, may file a suit for partition. 

Possession of all the property documents of which the partition is sought is irrelevant. Certified copies of the same and the certificate of Property Market Value can be fetched from the office of the Sub-Registrar. Additionally, the death certificates of parents/grandparents can be acquired from the concerned Municipal Authorities. 

Process of filing Partition Suit in India 

Before instituting a Partition Suit, it is of utmost importance to issue a legal notice on the other party. If the legal notice goes neglected, then one can file a petition in the court. If the set process is not followed, the suit can be dismissed by the court on the ground of procedural impropriety. 

1. Filing of Suit/Plaint: The Plaint is the complaint or the allegations that are made. The format of the Plaint has to be in accordance with what has been specified and mandated by the Court. The following are the essential details that must be mentioned in the plaint:

  • Name of the Court to set the jurisdiction 
  • Names of the Parties to the suit
  • Postal Address of the Parties 
  • Nature of the complaint 

Along with these, the plaint must contain an affidavit or verification certifying that the contents of the plaint are true. 

2. Vakaltnama/Power of Attorney: This is a formal document that vests the power in the Advocate by the client to represent them in the partition matter. It is a mandatory document and in the absence of such, the Advocate is disentitled to represent the client. 

3. Payment of Court Fee: Full payment of the court fee is a necessary step before filing the suit. Different amount of court fee has to be paid for different kinds of contracts. 

  • Plaint/ Written Statement – Rs 10, if the suit value exceeds Rs 5000/- up to Rs 10,000/-
  • Plaint, in a suit for possession – Fee of one half of the amount above.

4. During the stage of the hearing, if the Court feels that the case has merits, a notice has to be issued to the opposite party summoning their appearance on the date fixed by the court. 

5. Filing of the Written Statement: Before the court fixed date, the defendant is required to file his written statements, i.e. his defence against the allegations raised by the plaintiff, within 30 days, extendable to 90 days, from the date of notice service, or within the time offered by the court. 

6. Replication by Plaintiff: A Replication is a reply, filed by the Plaintiff, against the Written Statements of the Defendant. It must specifically deny the allegations raised by the Defendant. Anything not denied is deemed to be accepted by the Plaintiff. Once the Replication has been filed, pleadings are stated to be complete. 

7. Filing of other documents: Once the pleadings are completed, the parties are required to file all relevant documents to substantiate their claims. The accepted filed documents are served to the other party in the form of a photocopy. The parties cannot rely on other documents that have not been accepted by the court. 

8. Framing of Issues: The issues are framed by the Court, on the basis of which arguments and witness examinations take place. The parties must stick to the issues pertaining to the case. In the final order, each issue is handled separately by the court.

9. Witness List: Both the parties are required to file a list of witnesses within 15 days from the date on which the issues were framed or a court prescribed date. On the hearing date, the witnesses are examined by the court.

10. Final Hearing: On the day of the final hearing, the arguments shall take place. After hearing the arguments from both parties, the court shall pass a final order.

11. Certified Copy of Order: This is the final order of the court, containing the seal and stamp of court. An application for the certified copy can be made to the Registry of the Court along with the required fees.

Generally, a Partition Suit takes nearly 3 years for completion. The grant of the preliminary decree takes nearly 2 years and another 1 year goes into obtaining the property share. The Limitation Act governs the limitation period of the Partition Suit. 

"This article is written by Ms. Deeya Barik, you can reach out to her at deeyabarik1997@gmail.com."

"Special thanks to Ms. Utkarshini Rai for editing this article."




Comments

  1. Excellent read, Positive site, I have read a few of the articles on your website now, and I really like your style. I really appreciate your work.If you require about bust auditors delhi | ca firms delhi please click on it.

    ReplyDelete
  2. The great service in this blog and the nice technology is visible in this blog. I really appreciate your work.If you require about big audit firms delhi | leading audit firms delhi please click on it.

    ReplyDelete
  3. Finding a real estate agent in our area is easy since there are so many choices. On the other hand, finding the best real estate agent is a difficult job. When buying real estate, on the other hand, selecting the best real estate agent is crucial. Because the best real estate agents can help you find the most appropriate house at the most affordable price.

    ReplyDelete
  4. This comment has been removed by the author.

    ReplyDelete
  5. When it comes to qualifying for a mortgage, the self-employed encounter several practical challenges; while they exclude company expenditures from their tax returns to have a low net income and save money at tax time, their mortgage lender utilizes that net income number to assess their yearly income. Though there is a mismatch in the accounting, it might give the impression that the self-employed borrower has a low income and excessive spending, even when the reality is quite the reverse. Sometimes the most excellent choice for the borrower is to take out an adjustable-rate loan and then save up for a self employed mortgage refinancing in the future to pay off the debt.

    ReplyDelete
  6. Some loans pay the cost of building a barndominium, which then automatically become a mortgage when it is completed. Getting barndominium loans to finance approved might be a challenge. However, you may speak with Rae Drake at Cardinal Financial Company if you wish to get approved for this loan.

    ReplyDelete

Post a Comment

Popular Posts