WHAT IS PARTITION?
Before we get know-how can we file a suit for partition first we need to understand, what is a partition? In general terms, partition means the division of members of a Hindu joint family where its Coparceners get separated from each other.
Under Mitakshara school of thought, the partition can be meant as when coparceners remove their interest or status of a joint family and want to live separated from each other and property of joint family is divided among its coparceners in according to the law or metes and bounds.
Under Dayabhaga school of thoughts, partition only meant that division of property of a Hindu joint family among its coparceners by metes and bound. There must be two coparceners for a partition of the property of a Hindu joint family.
WHAT ARE THE WAYS OF PARTITION IN INDIA?
A partition can happen in the following ways: –
- Partition Deed
- Family settlement
- Institution a suit
In partition, deed partition occurs by the mutual consent of coparceners. There is a need for registration on a stamp paper in the registrar’s office. A legal effect must be given to a deed by registering it. There must an agreement between family members so that disputes will not happen further in court.
In family settlement, a settlement agreement has been made just like a deed but there is no registration on stamp paper is required in it. But all the family members must sign it.
In partition suit when all the coparceners are not satisfied with the division of property and everyone has their different demand or don’t agree to settle between them in this matter jurisdiction of court will interfere.
WHAT ARE THE LAWS IN INDIA BY WHICH PARTITION IS GOVERNED?
In case of a Hindu family, these are the following acts are applied which governs laws related property and partition of property: –
1. The Hindu succession Act, 1956 – This applied in the partition of Hindu joint family.
2. The Hindu partition act of property, 1892 – This is applied when partition of property when it is owned by two or more persons jointly or there can be two co-owners.
WHO CAN FILE A PARTITION SUIT?
The law has not given any specific guidelines about that who can or who cannot have the right to file a suit for partition in India. There is no one restricted to file a partition suit for any person whether it’s he/she. Any person can file a suit for partition of a property, also does not matter that the person who is filing a suit for partition has his own personal interest in it or have any kind of share in it. If any person who has not any contingent or vested interest can claim a partition.
Any coparceners or all the coparceners of property can claim a partition or file a suit for the property. In the case of many coparceners, some of them are not willing to participate in partition of the property then they can deny and have the right not to participate in the partition of property. Any of them can claim for partition or all of them can claim.
WHAT IS THE DOCUMENT REQUIRED FOR FILING A SUIT FOR PARTITION OF A PROPERTY?
It is not necessary that you should have documents of property for partition as a certified copy of property can be obtained from sub-registrar’s office and the market value of the property can be obtained from the same.
It is required that you should collect the death certificate of your parents/ grandparents from the concerned municipal authority.
There is no requirement of any documents for the suit of partition. When any person who has no document before filing suit, after he makes other co-owner to prove that: –
- That property for which suit is filed does not belong to him. or
- That he has right in the part of that property.
But to be on the safer side a person who is filing suit must keep these documents with him for future dispute.
- Certified copy/ original copy of property of which you claim for partition.
- A description of the property which contains (area, location, geographical boundaries, survey no.)
- Valuation of the property by sub-registrar.
WHAT IS THE LIMITATION PERIOD FOR A PARTITION SUIT?
The limitation of the partition suit is governed by the Limitation Act. According to it, there shall be a 12-year limitation in partition suit. It starts from the day when the plaintiff starts claiming property.
SUPREME COURT GUIDELINE FOR PARTITION SUIT.
It was held in the case of Shasidhar & Others Vs Smt. Ashwini Uma Mathad & Anr. that in a suit for partition filed by any coparcener of that joint property for which suit of partition is filed, there the court must examine these things in the suit: –
1. Nature and character property – That means the court must check the nature and character of property i.e. who is the real owner of that property, whom that property belongs to, and what are the sources by which he acquired that property. i.e. self-acquired or ancestral property and if that property not only belongs to him then who are the other coparceners of it.
2. Any testamentary left – After a person’s death does, he left any will on the name of any person of his property or not. And after his death how the devolution of property takes place.
3. Property is capable of partition or not – The court must see that the property of suit is capable of partition or not.
4. All the parties are coparceners or not – There need to check that all parties in the suit are coparceners in property. This should be check on the basis of Hindu law family tree because it is required to be answered in court.
A partition suit contains: –
- A title of the suit (suit for partition of joint Hindu family property)
- Jurisdiction of court (in the court of civil judge)
- Suit no. with year (original suit no. …. Of ….)
- Plaintiffs name (Mr. XYZ s/o Mr. ZYX)
- Defendant name (Mr. XYZ s/o Mr. ZYX)
- Relation between plaintiff and defendant
- Issue of property
- Market value of property
- Plaintiff claims
- Schedule of property
- Sign, verification
- Date, place, sign
BIBLIOGRAPHY
This article is authored by Shipra Jain, 2nd Year student of B.A. LL.B at JIMS, school of law, Engineering Management Technical Campus (JEMTEC),greater noida.
Also Read – All About Partition Suit
