The term partition is division of a joint property among several co-owners, so that each person gets his share and becomes the exclusive owner of the share allotted to him. It is generally affected by dividing a property according to the shares to which each of the party is entitled.
Each divided property gets a new title, and each shareholder gives up his interest in the property in favor of others. Therefore, partition is a combination of surrender and transfer of certain rights in the estate except those which are easement in nature. The transferee can then further deal with the property in any manner as he may so desire. He can sell, transfer, exchange, gift or deal in any other manner with the property as its absolute owner.
Methods of Partition
- Partition deed- In case a partition is by mutual consent, a partition deed can be executed amongst the co-owners. The partition deed is required to be executed on a stamp paper of proper value and registered with the office of the sub-registrar of the place where the property is situated. After registration, the deed gets a legal and binding effect.
- Family Settlement Deed- A family settlement arrangement is an agreement, (preferably written) between members of the same family regarding the distribution of properties and assets, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed right or by preserving the family property or the peace and security of the family by avoiding litigation. Partition deed as explained above requires stamp duty and registration, a Family Settlement Agreement on the other hand does not require registration and stamping.
- Suit for partition- In case all the co-owners are not giving their consent for partition of the property, then in such a case, a partition suit is required to be filed before the appropriate court of law. The co-owners of the property can then get the partition done by metes and bound. The partition can be in an agreed ratio or as per the law of inheritance applicable. More than one person may jointly own the same property. All such persons would have either equal or certain specific rights to possess and use the property.
Documentary requirements for filing a suit for Partition-
- Identification proofs of legal heirs
- Certified copies of the property with a description
- Valuation of the property/ies
- Proof of birth of the legal heirs
- Proof of residence of legal heirs
- Death certificate of the deceased.
- Proof of last residing place of the deceased
A suit for partition can be filed at a Civil Court of competent jurisdiction where the property is located. If there are several properties, the said suit can be filed in the jurisdiction of any one of the courts.
Understanding the procedure of filing a suit for partition-Filing of the Suit:
A well drafted petition incorporating all the facts, circumstances, details of the assets- both movable and immovable, details regarding valuation of the properties, property map, details as to the legal heirs etc. should be filed in the court of appropriate jurisdiction along with the annexures. The limitation period for filing a suit for partition should be taken note of. The court fee of requisite amount should also be paid at the time of filing the suit, which will depend on the value of the assets.
If the court finds any merits in the case, it gets admitted, summons is sent, and a date of hearing is fixed for appearance of the defendant. Filing of Written Statement and Documents –
The defendant on the date of hearing as fixed by the court, appears and files his Written Statement, which is a reply to the plaint, denying allegations filed in the plaint by the Plaintiff. The Written Statement must be filed within 30 days of the receipt of such notice which can be extended up to 90 days, if the court permits.
Further, both the parties can file the supporting documents at this stage to substantiate their claims.Evidence and Arguments –
Both the parties can file their evidence to support their claim, based on which the court listens to the arguments presented by both the counsels. The witnesses are also examined by the court. Passing of the decree:
Based on the evidence, witnesses and final arguments, the court will pronounce its final order and decree.
To conclude, a suit for partition ends the joint nature of the assets and each legal heir gets his/her share. Initially, the legal heirs should opt for either a Partition deed or a Family Settlement Agreement as it saves a lot of time and litigation expenses. If however, the rights of any party is getting affected, or the parties are not coming to a mutual decision, a suit of partition should be filed as a final resolution to the issue.