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Partition Suit

Introduction

Most of the time, a partition action involves the division of real property like a home or farm land. Nevertheless, there are times when a partition action has involved personal property like stocks. Partition is division of a joint property among several co-owners, so that each person gets a 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 parties 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.

Ways of partitioning:

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 as in case of any other registration. After registration, the deed gets a legal and binding effect.

Family Settlement Agreement:

Another way to divide the property is by way of entering into a Family Settlement Agreement. Difference between a Partition deed and a Family Settlement Agreement is that of payment of stamp duty and registration. Partition deed as explained above requires stamp duty and registration, a Family Settlement Agreement on the other hand does not require registration and stamping. The essentials of a valid settlement agreement were laid down by the Hon’ble Supreme court in Kale and others vs. Deputy Director of Consolidation and others, (1976)3SCC119 in following words:

10 In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be reduced into the form of the following propositions:

  • The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
  • The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence:
  • The family arrangement may be even oral in which case no registration is necessary;
  • It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum pre pared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of s. 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
  • The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property 'It which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favor of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
  • Even if bona fide disputes, present or possible, which may not involve legal claims, are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.

Partition suit:

In case the co-owners are not agreeable to a partition of the property and only one or more of the co-owners want the partition, the mode of partition is a bit different. 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 partition it by metes and bounds. 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.

It is a general principle of law that the courts of law cannot be approached beyond a fixed period. There are time limits for different suits within which an aggrieved person can approach the court for justice. To file a civil partition suit, there is a limitation of 3 years from the date when the right to sue accrues, beyond which, the suit would be struck by the law of limitation.

Procedure:

Before instituting a suit for Partition, it is necessary to issue a legal notice on the other co-owners demanding partition of the property/s. Demanding party may also opt for instituting pre-litigation mediation in order to see if there is any chance of settlement. If there is no response to the legal notice or the dispute continues or the mediation fails, a partition suit can be filed by producing all the relevant documents pertaining to the dispute before the court.

Court then determines the claims and rights of each party after examining the case in hand and after hearing all the arguments.

If the Court feels that the property/s cannot be partitioned merely on the basis of the partition suit, the court may order for an inquiry and pass a preliminary decree for an appointment of a Local Commissioner who visits the property and evaluates the same and submits a report before the Court. The Court then determines the share of each co-owner on the basis of this report and accordingly partition the property by metes and bound.


- As on 1st July 2019