What is Partition?
The word ‘partition’ refers to dividing a part of a whole. Partition for the most part refers to a division which means giving a part of something to someone. Alternatively, to divide the whole into parts, each of which will be separate and have a separate existence is called division.
What are the methods of partition in India?
A partition can be effected in the following ways:
Partition deed
Family Settlement
Institute a suit
In a partition deed, partition takes place between the co-owners by mutual consent. It is essential that the partition deed is executed on stamp paper and registered in the office of the sub-registrar. A legal and binding effect is given to the deed by its registration. A settlement is reached between the family members through dialogue and negotiation. This is done to prevent any dispute in the court and to divide the family property peacefully.
Family Settlement: A settlement agreement is prepared in the same format as the partition deed but does not require any registration and stamping. It is mandatory for all the members of the family to sign the Family Settlement Agreement.
Partition Suit: When all the owners do not agree to the terms of partition of the property and want different terms, one or more co-owners can file a partition suit in the court having jurisdiction.
What is the law governing partition in India?
The following two Acts govern partition in India:
During Partition of a Hindu Joint Family: Hindu Succession Act, 1956
During the partition of any property which is jointly owned by two or more co-owners: Hindu Undivided Family [HUF] and Hindu Partition of Property Act 1892
Who can file a suit for Partition?
There is no statutory guideline or law specifically laid down to delineate or specify the class of people eligible to file a suit for partition in India. Thus, it can be inferred that there is no clear-cut bar that prevents one from filing a suit for the partition of India. On the contrary, any person (where such person may or may not have any incidental or vested interest in the property) can file a suit for partition. Any or all the co-owners of the property can file a suit for partition issued. In a situation where there is more than one heir present, and if all of them are not willing to file a suit for partition, it is not necessary for all the heirs collectively to participate in a suit for partition.
The possession of all the documents of the property sought to be partitioned Is irrelevant. Attested copies of the same and a certificate of the market value of the property can be obtained from the office of the sub-registrar. Additionally, the death certificates of parents/grandparents should be obtained from the concerned municipal authorities.
What is the procedure to file a partition suit in India?
There is a specified procedure to be followed for filing a partition suit or any kind of suit in India. If the mandatory procedure is not followed, the trial can be dismissed on the ground of procedural impropriety.
The steps to be followed for filing a partition suit are as follows:
1. Filing of Suit/Complaint: In general terms, the suit is the legal form of complaint or allegation made by the party filing such suit. The plaint should be drafted and printed as per the format which has been specified and mandated by the Court. The party filing the suit is known as the plaintiff and the opposing party is known as the defendant. If a suit is not filed within the prescribed period of limitation, the such suit shall become time-barred. The following are the essential particulars that should be mentioned in the plaint:
Name of the Court to determine jurisdiction
Name of the parties to the suit
Postal Addresses of the parties
Nature of such complaint etc
Additionally, the plaint should contain an affidavit or verification certifying that the content of the plaint is true to his knowledge
2. Power of Attorney/Vakalatnama: Vakalatnama or Power of Attorney is a formal document that gives the power of attorney to represent the matter concerning the client. A power of attorney authorizes the advocate to plead the client’s case as a duly assigned agent of the client. It is a mandatory document and in the absence of the such document, the advocate has no right to represent the client.
3. Court Fees: Full payment of appropriate court fees is an essential step before filing a suit.
Different court fees apply for different types of cases and states. The applicable court fee is assessed and affixed wherever necessary in the plaint.
After the completion of this process, the court fixes a date for hearing the arguments of both parties and on the basis of the arguments, determines whether the case has sufficient merit to proceed. Based on such determination and the discretion of the Court, it may either:
Let suit
Or reject the suit
If the court finds any merit in the suit then the court will allow the suit to be considered.
4. At the stage of hearing the arguments: if the Court finds that the matter has merit, a notice shall be issued to the opposite party seeking their presence on the date fixed by the Court for the next hearing.
5. In the meantime, it is required that the plaintiff do the following:
A plaintiff must file appropriate court fees
The plaintiff must file proper copies of the suit with the court
6. Filing of written statement: After receiving the notice, the opposite party has to appear in court and file a written report. A written statement is, in simple terms, a reply to the allegation filed by the plaintiff. Such a written statement must be filed within 30 days of receiving such notice and this time period can be extended up to 90 days if the court allows. The contents of the written statement must deny the allegations made in the plaint. Any statement in the plaint which is not expressly denied is deemed to have been admitted by the defendant.
7. Replication: When the plaintiff replies to the written statement, such a document is called a replication. The counterclaim must deny the allegations made by the defendant and any allegation not expressly denied in the counterclaim is deemed to be admitted by the plaintiff. Once the rejoinder is filed, the arguments are complete.
8. Filing of documents: After the completion of the arguments, the Court gives the opportunity for both parties to file all relevant and necessary documents to prove their claims. The parties can object to the documents submitted by each other. The Court can either accept or accept the documents filed or reject them. If any document is not accepted or rejected, such document is returned to the party filing it. The documents filed are given to the other party/parties in the form of a photocopy/xerox. In the final arguments, the parties cannot rely on any document which has not been filed by them.
9. Framing of issues: After completion of the process described above, issues are framed by the Court on which the matter is to be decided. These issues comprise the foundation of the dispute between the parties and the resolution of these issues helps in bringing the matter to an end. The parties need to stick to these issues in presenting their case. In the final order, each issue is dealt with separately by the Court.
10. LIST OF WITNESSES/EXAMINATION OF WITNESSES: The list of witnesses whom the parties desire to produce before the Court shall be filed within 15 days from the date of framing of issues or within such other period as may be prescribed by the Court. On the date of the hearing, the witnesses are examined by the court.
11. Final Hearing: Both parties shall argue the issues constituted by the Court on the date of the final hearing. The court will give the final verdict after hearing the arguments of both sides.
12. After the final order is passed by the court: the parties can obtain a certified copy of the order from the court. An application for a certified copy may be made at the Registry of the Court along with the requisite fee.
What is the limitation period for a partition suit?
The Limitation Act governs the period of limitation for partition suits. Accordingly, the time limit for filing a partition suit is 12 years. The reckoning of the limitation period of 12 years shall commence from the day on which the claim adverse to the plaintiff arises.
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