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Partition is the process of dividing or distributing the property amongst co-owners in separate shares. The partition can be affected either by mutual agreement between the co-owners or by the court. A partition suit is a legal remedy that can be sought by co-owners of a property when they wish to divide the property amongst themselves. The procedure for filing a partition suit in India is as follows:
Step 1: Consultation with a Lawyer
The first step to file the Partition Suit is to consult with a lawyer who specializes in property disputes and is well versed in property laws. The lawyer will examine the case and advise on the legal options available, including filing a partition suit. Very importantly the lawyer will provide guidance on whether partition is feasible, the type of suit to be filed, and the chances of success.
Your counsel shall verify all the property documents to confirm the ownership and the extent of the property. This includes checking the title deed, sale deed, gift deed, will, and other relevant documents like the identify proofs, address proofs, death certificate of the deceased, certified copy of property valuation, as need be.
Step 2: Legal Notice
If the co-owners are not agreeing on a partition, a legal notice can be issued to them by the lawyer on behalf of the client. The notice should mention the client’s share in the property and the request for a partition. Not always the dispute should be resolved in the court, attempts should be made to ensure speedy resolution and your lawyer will advise this step which will help in complete the process soon as compared to litigation.
Step 3: Family Agreement and Partition Deed
If the Co-Owner cooperates the process can be completed drawing a Family Settlement agreement followed by executing a Partition Deed on a stamp paper and registering the same at the Sub Registrars.
If there is no cooperation from the co-owner, then the next step will be to approach the court of law in the interest of justice and equity.
Note : The limitation period of filing the Partition Suit is 12 Years from the date of adverse claim to the party filing the suit.
Step 3: Drafting of the Partition Suit
Once the decision to file a partition suit has been made, the lawyer will draft the partition suit. The partition suit should include all relevant details of the property, such as its location, dimensions, and any other details that are important to the case.
Step 3: Filing the Suit
The partition suit is filed in the court having jurisdiction over the property. The court fees and other expenses related to filing the suit must be paid at this stage. The plaintiff must also submit all documents related to the property, such as the title deed, tax receipts, and any other relevant documents.
Step 5: First Hearing – Maintainability of Suit
In this step, the court fixes a date to hear the matter to decide if the suit is maintainable and then allow the suit. If the court believe there is no merits in the suit it will dismiss the petition.
Step 6: Service of Notice
After the partition suit is filed, the court will issue a notice to the defendant(s). The notice must be served to all the defendants, stating the nature of the suit and the relief sought. The defendants are given a specified period of time to respond to the notice.
Step 5: Written Statement by the Defendant(s)
The defendant(s) must submit a written statement in response to the partition suit within the stipulated time period. The written statement should address the claims made by the plaintiff in the partition suit.
Step 6: Replication or Rejoinder
This is an optional step, if the party or the counsel happen to believe, the response from the Defendant in the form of the written statement is incorrect, false or any allegations are drawn up on and there is a necessary to rebuttal the written statement, such application shall be filed.
Step 7: Evidence by Parties
The court will then proceed to hear the evidence presented by both parties. The plaintiff must prove that they are co-owners of the property and that the property can be divided equitably amongst the co-owners. The defendant(s) may also present evidence in support of their case. Both parties shall provide their set of documents, electronic evidences and any other proofs as deemed fit including eye witness or expert testimony as need be.
Step 8: Examination in Chief and Cross Examination of Witness
A witness is examined when they are questioned about pertinent details of the case and their responses are recorded as evidence. The Evidence Act’s mandates that a witness be cross-examined in the following sequence, which consists of three parts: Examination – Cross Examination and Re Examination.
- The witness is first cross-examined by the party who summoned him, a procedure known as examination-in-chief.
- If the opposing side desires, they may engage the witness in cross-examination over his prior statements after the principal examination is finished. The opposing side is free to question him about any fact that is important, not just the ones that were covered in the examination-in-chief
- Once the witness has undergone cross-examination, the party who summoned the witness may do it again if they feel the need, this is called re-examination.
Step 9: Final Arguments
The next phase of the suit is the arguments, once the processes of examination and cross-examination are finished. The disputing parties are invited to submit their arguments, a synopsis of the case, and a list of supporting citations.
Step 10: Decree by the Court
After hearing the arguments, the court will pass a decree. The decree may order the partition of the property among the co-owners or may award compensation to the plaintiff if the property cannot be divided equitably.
Step 11: Execution of Decree
If the decree orders the partition of the property, the court will appoint a commissioner to divide the property amongst the co-owners. The commissioner will prepare a report detailing the division of the property, which is then submitted to the court for approval. The court will then issue a final order for the partition of the property.
Step 12: Possession of Property
After the decree is passed, the co-owners can take possession of their respective shares of the property. The court may also appoint a receiver to take possession of the property and divide it among the co-owners.
Step 13: Appeal
If any of the co-owners are dissatisfied with the decree, they can file an appeal in the higher court.
Conclusion
In conclusion, a partition suit is a legal remedy available to co-owners of a property in India. The procedure involves drafting and filing the partition suit, serving notice to the defendants, submitting written statements and evidence, examination, arguments and obtaining a decree from the court. If the court orders the partition of the property, a commissioner is appointed to divide the property amongst the co-owners, typically the end to end process shall take anywhere between an year and odd and can extend to couple of years depending on the evidences and number of parties the division of property is sought.
Feel free to write to us at mail@lawyersonia.com or call +91 9845944896 if you wish to consult or discuss your matter. “Sonia and Partners” is a Boutique law firm led by Adv. Sonia Rajesh supported by a team of qualified and among the Best Lawyers in Bangalore practicing in the area of Family Law, Property Law and Criminal defence serving Citizens of India, Overseas Indians, NRIs and Global International Clients.
