Considerations before filing a partition suit in India

In real estate, the term “partition” means the division of property owned jointly by several people. Through the execution of a related deed, the procedure aids in preserving the owners’ rights and preventing potential conflicts in the future. A partition lawsuit is one way to ensure equality between the parties in conflict. To know more about the steps and required paperwork, continue reading.

In India, dividing movable property and other immovable assets is quite common. It is carried out when the owners want to take the portion that is exclusively theirs by way of inheritance or gift and own it on their own. A partition lawsuit typically takes two or three years to resolve. A partition lawsuit can be filed for both residential and commercial properties, as well as plots. The filing fee for each suit is Rs 500.

What is a partition suit?

A partition suit is a legal action brought by either party when a family property dispute arises. This legal document is created either by a court order or following negotiations between the parties. In essence, it represents the share of the property that is claimed by each party. However, it is required to be registered at the Sub-Registrar’s office in order to be an enforceable partition deed.

According to Article 65 of the Limitation Act, you can file a partition lawsuit within  12 years. This time frame starts once the co-owners of the public domain are notified of the adverse claim. An adverse claim occurs when the claimant has an interest in a financial asset and that interest is violated by others by holding, transferring, or dealing with the financial asset.

In addition, when a claim is made for the division or separation of a share, the court determines whether the complainant (plaintiff) has a share in the subject property and is qualified for both division and separate possession

Who can file a partition suit?

While there are no specific guidelines in place to define who is eligible to file a partition suit in India, it can be assumed that any or all co-owners of a property can file a partition suit. Additionally, not all of the heirs are required to participate in the process if they don’t want to.

Steps to file a partition suit

Although the timeline for filing a lawsuit for partition is already known, it is crucial to understand the steps involved.

• Find the property’s legitimate heirs first. While not all of them must participate, having a clear understanding of who is eligible to claim each property could be very helpful.
• Gather all necessary documentation, including proofs of identity and residence, property valuati on papers, and the owner’s death certificate, among other things.
• Send a legal notice to the defendant and take legal action if the notice is not responded to within a specified time.
• Prepare a complaint and a Power of Attorney (POA) for court submission.
• Pay the applicable court fine
• Wait for the court to schedule a hearing before taking any further action on the particular case

Partition suit: Chronology of proceedings

Prior to filing a lawsuit for partition, you must first send a legal notice. The plaintiff may proceed with filing the lawsuit if the notice is ignored. After that, you must adhere to the instructions listed below.

• Create a complaint using the format specified by the court. The complainant is referred to as the plaintiff, and the defendant is the party being sued. It is important to carefully include all pertinent information, such as the parties’ names, addresses, the type of complaint, and an affidavit attesting that the information in the plaint is accurate.
• File a Power of Attorney, a legal document that gives the advocate the authority to represent the client in the disputed matter.
• Pay the court fee depending on the case and state. The court fee can be calculated with the assistance of a legal representative. 
• Once the fee is paid, the relevant court will schedule a hearing and make a decision regarding the case’s merits.
• It’s crucial to keep in mind that the court will only continue with the case if it finds that the lawsuit has merit. A legal notice requiring the defendant’s appearance on the day of the subsequent hearing would be sent to them, at the court’s discretion.
• The opposing party is required to submit a written statement in response to the plaintiff’s complaint as soon as they receive the notice. The written statement must be submitted within 30 days of receiving the notice. However, if the court approves, the time limit may be extended to a maximum of 90 days.
• The plaintiff is required to either admit or deny the defendant’s claims after receiving the written statement. Replication describes a response that is provided in the form of a written document.
• Once the replication is submitted to the court, the pleadings are finished. Following that, the parties are requested to provide pertinent documents to support their claims. The court retains the authority to accept or reject the documents, though.
• The parties have 15 days from the date the issues were framed to present witnesses in support of their claims.
• The parties’ list of documents filed with the court as well as the documents they presented in Court of Law are taken into consideration when the court makes its decision.
• The parties can obtain a certified copy of the final order from the court.

Required documents for filing a partition suit

The following documents are required for filing a property partition suit:

• Proof of legal heir’s identity
• Certified copies of each title deed for the property, along with the property description
• Property valuation
• Proof of the legal heir’s birth and address
• Original copy of the owner’s death certificate
• Residence certificate of the deceased

How quickly does the court issue orders in a partition case?

Obtaining a preliminary decree typically takes two years, and obtaining a share of the property typically takes another year.

The real estate partner at Veritas Legal, Vineet Nalawalla, explains that “partition of property is re-distribution or adjustment of pre-existing rights among co-owners of property. As a result, the underlying principle is that a partition is only permitted among those who have a share in the property. In cases involving property division, the courts typically take into account whether the party seeking a division has a legal claim to the property and separate possession. Therefore, it is crucial for a person seeking such a partition to be able to prove his co-ownership in the property. Additionally, even though courts may order the division of the property, the actual physical division of the property still poses difficulties.

Even though partition disputes are frequent in India, filing a lawsuit can be difficult and time-consuming. A family settlement is a much more amicable and economical option, in which family members mutually decide the share of the property, including movable assets like jewelry and money in bank accounts. A family settlement is a conciliation process that involves a third party, typically a senior family member or a lawyer, who aids in finding a resolution to the conflict that is acceptable to both parties.

How is property divided in a partition suit?

The property is divided between the co-owners of the property by a partition deed. The property is divided through the execution of this deed, granting each co-owner an absolute title to their respective portion. Once mutated, the divided property is then regarded as a separate unit. Each co-owner now owns their respective portion of the property and is free to gift, sell, or otherwise dispose of it as they want. For a mutation to take place, it is mandatory that partition deed gets mutated.

Is it necessary to register a partition deed?

As per the Maharashtra government,  it is not compulsory to register such partition deeds, as the process of partitioning properties belonging to a Hindu Undivided Family (HUF) do not fall under the definition of ‘transfer’,. However, the executed partition deed won’t be admissible as evidence in court if it isn’t registered.

Things to know about a partition suit:

• The partition suit may be filed by an adult (18 years of age or older) and a sound coparcener. Furthermore, they are not required to give any justification for seeking the partition.
• According to Section 52 of the Transfer of Property Act, 1882, a coparcener cannot sell the property while the lawsuit is ongoing.
• Depending on the value of the property in dispute, each state has a different court fee. However, some States have fixed this cost. The cost of a partition suit is Rs 200 in Karnataka and Rs 500 in Delhi.
• Each share of the property becomes a separate legal entity after the partition deed takes effect.

Ways to partitioning a property in India

There are two additional ways to divide property in India aside from filing a partition lawsuit. These include:

Partition Deed

Each co-owner must agree to the division in a partition deed. The partition deed must be signed using stamp paper and submitted to the sub-registrar’s office for registration.

A partition deed consists of:

• Dispute resolution and settlement
• Defined share in the partition
• Creation of title deeds
• A description of all the circumstances
• Adherence to existing laws

Family settlement

In this case, the partition deed-like settlement agreement must be drawn up by all family members, but it is not legally recognized unless it is registered and stamped. In addition, all the members of the family must sign the settlement agreement to make it enforceable.

It is best for all parties concerned to consult a legal professional before moving forward with the proceedings because contested property partition may seem like a tedious process. One must remember to take all necessary precautions to make sure that the deed that is executed following the lawsuit is error-free.

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