How to file partition suit in India?

Law
15-Sep-2022
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Partition generally means a division to give a part of something to someone. We can divide a whole into mini parts, each of which has its presence called partition. Law states partition as dividing a property by the Court order conveying the comparable interest of the owner. The term partition is often associated with a property.

As per the Partition Laws in India, there are two kinds of property that the voluntary acts of the proprietors can partition:

  • Ancestral Property
  • Self-acquired property.

What is a Partition suit?

According to the Hindu Succession Act, 1956, and the Indian Partition Act, 1893, a partition suit is a legal process initiated by the court during a property dispute or in the absence of mutual agreement among multiple property owners for the division of the property.

If there is more than one heir present, and all of them are not ready to file a partition suit, they don't need to participate collectively in the Partition case.

Laws that regulate Partition in India

  • The Hindu Succession Act, 1956.
  • The Hindu Undivided Family [HUF]
  • The Partition Act, 1893.
  • The Hindu Partition Act of Property 1892.

Documents needed to File a Partition Suit.

As discussed above, no mandatory law for filing a suit for partition of property states that the person must have the documents to file a partition suit. If the person does not have the relevant documents, they have the right to file a partition suit after the filing of the claim that makes the other co-sharer liable to prove the following:

  • The property upon which the partition is filed does not belong to you.
  • You have received your rightful part.

On the safe side, keeping some documents with you while filing the petition is advised. The required documents are listed below:

  • Original copies of all the property's title deeds 
  • An accurate description should include area, location, survey number, Geographical boundaries, and other property details.
  • Valuation of the property.

Process of filing a partition suit in India:

Here is a step-by-step procedure to follow while filing a partition suit in India. It is important to consult with a property lawyer who knows about property law before proceeding with the following steps, as breaching any of them may result in dismissing the case.

  • Step 1- Filing of Suit

The suit is the legal form of complaint ordered by the Court. The party filing the suit is the Plaintiff, and the defending party is the Defendant. If the suit is not filed within the limitation period, which is 12 years, the suit shall become barred. Listed below are the necessary details for mention in the suit:

  • Name of the parties.

  • Name of the Court.

  • Postal Address

  • Nature of such complaint.

Moreover, the suit must contain an affidavit to verify that the content of the suit is accurate.

  • Step 2 - Power of Attorney

Power of Attorney is the formal document that gives the power of the client to an attorney to represent them in the desired matter. Power of Attorney allows the Advocate to discuss the client's case as the client's duly-assigned agent. It is a crucial document, and the Advocate is disentitled to represent the client in the absence of this document.

  • Step 3 - Payment of Court Fee

Payment of the court fee is necessary before filing a suit. The amount may vary depending on the nature of the case and laws applicable in different states. A legal advisor can guide you in determining the appropriate court fees.

  • Step 4 - Hearing

After this, the Court gives a date for a hearing where depending on the opinions, whether the case has sufficient value to move or not. Depending on such determination and the discretion of the Court, it may either allow or disallow the suit. If the Court finds any value in the suit, it allows the suit to move further, or vice versa, disallow it in the first hearing.

  • Step 5 - Filing of Written Statement

In this step, the opposite party appears in Court and gives a written statement. A Written Statement refers to a reply to a filed suit. It is required to file the written agreement within 30 days of receiving such notice. However, with the Court's permission, the period can be extended to 90 days. Written Statement content must deny the claim. Any statement in the suit that is not denied is considered accepted by Defendant.

  • Step 6 - Replication

After the person writes a written agreement, that is called Replication. The Replication should deny all the claims, and any allegation not expressly denied in the Replication is considered to have been agreed by Plaintiff. The pleading is said to be complete right after filing the Replication.

  • Step 7 - Filings of documents

After the replication process, the Court gives both parties an option to show all the documents that are relevant and necessary to verify their claims. The parties can object to the documents presented by each other. Once the documents are verified, the Court can accept or reject them. The documents are presented to other party/parties in the form of a photocopy. The document is returned to the party who filed it at the time of rejection. The parties cannot depend on documents before final judgment.

  • Step 8 - Framing of Issues

The Court states the issues depending on the case I am determined. These issues include the reason for the conflict between the parties. The parties are needed to stick to these issues at the time of hearing their case. Each issue is traded separately by the Court on the final hearing.

  • Step 9 - List of Witness

After framing the issue, the list of witnesses has to be filed within 15 days of framing of issues that the Court may have prescribed (the parties plan to present before the Court). The Court examines the witnesses on the hearing date.

  • Step 10 - Final Hearing

Both parties may argue within the issues formed by the Court on the final hearing date. Hearing the arguments from both sides, the Court passes a final order.

  • Step 11- Application for a certified copy

After getting the final order, the parties can gather the original copy of the order from the Court. The application for a certified copy is made to the Registry of the Court after giving the required fees.

Partition of joint and ancestral property

Partition of ancestral property is one of the most common family property disputes in India. The partition can only be achievable for the ancestral property. You cannot suit a division of the self-owned property. Submit the required documents with your family tree proving the desired property is ancestral or joint, It would help if you pleaded concerning the family tree that shows your rightful portion of the property.

For instance, if your family consists of 5 members, including yourself, your parents, and two siblings. Then, the property will be parted into five parts, and you can claim your right over 1/5 of the property.

Documents required

As we understood earlier, document submission isn't required, but on the safer side, submit the documents of the ancestral property. If you don't have original copies of the property, you can submit a photocopy of the documents. Also, attach an application and other proof for submitting a photocopy in Court.

You can file an RTI in the respective municipal corporation without the property's paper. Then the municipal corporation sends back the property papers of the property that you demanded. 

Parties involved

The petitioner and Defendant are two parts of a Court case. Petitioner refers to the one filling the case, and Defendant includes all other property heirs. Try not to miss out on any heir while filing for a suit to prevent unwanted chaos. 

Stamp duty

You must pay heavy stamp duty on your property for filing a partition suit. The percentage differs from place to place. But it often ranges from 1%-3% of the price of the property. The property's price equals your part of the property, not the market price of the entire property. You must pay stamp duty only on your part of the property.

A place to file suit

A partition suit is filed in the civil Court where the property is. If an ancestral property is in more than one place, you can file a claim in any city. But don't file a case in multiple cities.

Decree on the partition suit

The decree is the order enforced by the law. In the case of partition suits, there are two types major types:

Preliminary decree:

The court issues a preliminary decree before settling the disputes related to the case. It highlights the legal rights and responsibilities of the parties laying the final judgment in the upcoming proceedings. This also means the preliminary decree does not provide a conclusion for the case.

Final decree:

Issued at the last stage of proceedings, the final decree brings the final order about the case to settle all the matters regarding the partition case. Once the court announces the final hearing, the lawsuit for the partition is finally disposed of.

Limitation for Filing Partition Suit

The partition of a property is secured by the law of limitation and controlled by The Limitation Act. Consequently, the limitation period to file a partition suit is 12 years. Such 12 years must begin when the hostile claim to the co-owners is reported to the world.

Although the other party should confirm that such a partition suit is time-bound, they must express the statement in their written form. In simple words, the case is time-barred and does not make any discrepancy until and unless facts and proof confirm that such a suit is time-barred and the same is established by evidence.

Case laws

Rachakonda Venkat Rao v. R. Satya Bai

In this case, the Supreme Court stated numerous things involved in a suit for partition. Relying on the outcome, the suit can be inclined in one stroke or by two preliminary and final decrees. 

As per Section 54, when the reason for the partitioned island being part of the property and assessed to revenue, the partition steps are undertaken by the District Collector. 

However, in other cases, the Court has to take over the steps to divide the properties among the partners following their respective shares. A party can pursue possession delivery depending on the final decree only after it is engrossed in a stamp of good value and by initiating execution proceedings. Any other step between a preliminary and final order is almost forbidden.

Uttam v. Subagh Singh and Ors.

In this case, the son of Dewas created a partition suit against his father and his three brothers. He urged a 1/8th share in property as the property was ancestral, and being a family member, he had a right to share the property by birth.

The Supreme Court held that Dewas's birth date stated that the ancestral property wasn't a joint family property; hence partition of such a property is not required. As per Hindu Law, the property that a person owns from his father's or father's father is considered ancestral property.

Conclusion

Most of the time, a single mistake may lead to the failure of your efforts for years. Partition suits need heavy stamp duty and a long time before the judgment of the case. Thus, one must always avoid doing things that can spoil all your steps. 

Hope this article gave detailed insights into the proceedings of your partition suit and the other things you need to check while filling it out.

FAQ

Q. Who Can File a Partition Suit?

A partition suit in India can be filed by either co-owners of a property or legal heirs.

Q. Is there any difference between a partition suit and a partition deed?

A partition deed is a legal document showing a mutual agreement, whereas a partition suit is made when a case is handed to get the partition done.

Q. What are the stamp duty charges on the partition deed for the share of the property?

In the case of a share of the property, the stamp duty is between 2% - 3% on the value of the whole property's share.

Q. Does a minor has the right to file a partition suit?

No, a minor cannot file a partition suit in India independently. A minor is not legally competent to initiate legal proceedings on their own behalf. In such cases, a guardian or next friend, usually a parent or a legal representative, needs to file the partition suit on behalf of the minor.

Q. Where can I file a partition suit if my property is located in Pune but I reside in Delhi?

A partition should be filed at the civil court near the property location, which in this case is Pune.

Q. Is registering a partition deed mandatory?

As per Section 17 of the Act, it is compulsory to register your partition deed. It can be done by paying a stamp duty of Rs 1000.   bnbvbGjhA