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HOW TO FILE A PARTITION SUIT IN INDIA [A STEP BY STEP GUIDE]

Shreyash Mohta

HOW TO FILE A PARTITION SUIT IN INDIA


In this blog I shall be discussing about the process and procedure to file a partition suit in India. Who can file a partition suit? What are the documents required while filing a partition suit? Time taken to file a partition suit. Court fee required.

The following topics shall be covered

1.     What is partition

2.     What is the governing law related to partition?

3.     Who can file a Partition Suit?

4.     What are the documents required to file a partition suit?

5.     Is there any Limitation Period in a partition suit?

6.     What are the procedure and process to file a partition suit in India?

7.     What is the time taken to file a partition suit?

8.     What is the Court Fee required?


WHAT IS PARTITION?


The term ‘partition’ means to leave or to part of with a whole. Partition generally means a division. Ie. To give a part of something to someone. Or in other ways to divide a whole into part of parts, each of which would be separate having its own existence is called partition.

The term ‘partition’ in law means:

To divide or to separate any real property by way of a court order or to divide any concurrent estate into portions which are separated and each one of them represent the proportionate interest of the owners of the property.


WHAT IS THE GOVERNING LAW RELATED TO PARTITION?


The Law relating to property and partition of property is governed by the following Acts [in case of Hindu’s]


1.     The Hindu Succession Act, 1956

In the case of partition in a Hindu Joint Family.


2.     The Hindu Undivided Family [HUF] and The Hindu Partition Act of Property 1892

In case of partition of any property which is owned jointly by either two or more than two co-owners.


WHO CAN FILE A PARTITION SUIT?


The law of India has not laid down any statutory guideline as to who can or who cannot file a partition suit in India. Going by that logic there is no restriction imposed upon a person restricting him or her to file a partition suit.

A partition suit can be filed by anyone [such person may or may not have any contingent or vested interest in the property and still has the rights to file a partition suit].

Any or all the Co-Owners of the property in question can file a partition suit.

Even if there are several heirs and not all of them are willing to take part in such partition suit it is not required that all of the heirs need to participate. Any one of them or all of them can file a partition suit.

It is also immaterial whether you have the documents of the property for which you are seeking partition. You can obtain the certified copies of the same and a Market Value Certificate from the Sub – Registrar’s office. You shall also require the death certificate of your parents/grandparents from the concerned municipal authority.


HOWEVER, IT MUST BE NOTED THAT

A PARTITION SUIT CAN BE FILED ONLY WHEN A LEGAL NOTICE HAS BEEN SENT FOR THE SAME AND SUCH LEGAL NOTICE HAS NOT BEEN ACCEPTED TO OR REPLIED BACK WITH WHICH SHALL BE TREATED AS DISREGARDED IN THE EYES OF LAW.

IT IS ONLY UNDER SUCH CIRCUMSTANCE THAT A PARTITION SUIT IS PROCEEDED WITH.


WHAT ARE THE DOCUMENTS REQUIRED TO FILE A PARTITION SUIT?


As has already been mentioned above that for filing a partition suit there is no mandatory rule or bye law which states that one should have the documents in hand to prove or to file a partition suit. Even if a party does not have the relevant documents, he or she has the complete rights to file a partition suit and it is after filing of the suit that makes the other co – sharer liable to prove the following:

1.     That such property upon which you have filed a partition suit does not belong to you.

2.     That you have received your rightful part from such property and as such is not entitled to any further partition rights.


HOWEVER, TO BE ON THE SAFER SIDE

The party who files such partition suit is/are advised to keep the following documents in place before filing a partition suit. They are:

1.     Certified Copies/Original Copies of all the title deeds of the property/properties which you are claiming to be as an ancestral property.

2.     A proper description of the property/properties which shall include the following


i. Area

ii. Location

iii.Geographical Boundaries

iv. Survey Numbers

v. Any other property details


3.     Valuation of the property/properties upon which you have decided to file such partition suit. [The valuation of the same must be done by the Sub – Registrar of these property/properties]


IS THERE ANY LIMITATION PERIOD IN A PARTITION SUIT?


YES, the partition of a property is barred by the law of limitation and is governed by The Limitation Act.

Accordingly, the limitation period to file a partition suit is 12 years.

Such 12 years shall begin when the adverse claim to the plaintiff or to the co-owners is notified to the world at large.

 The calculation of 12 years shall begin since then and not earlier than that.

However, it is the burden of the opposite party to prove that such partition suit is time barred and they need to mention the same in their written statement.

Simply mentioning that the suit is time barred does not make any difference until and unless it is proved by way of facts and evidence that such suit is time barred and the same is proved by way of evidence.


PROCEDURE AND PROCESS TO FILE A PARTITION SUIT IN INDIA


To file a partition suit or so to say to file any kind of suit in India, there is a process which is required to be followed. If such procedure is no followed then due to failure of not following such procedures the suit may be dismissed on the grounds that the procedure was not followed.

The steps to be followed are given below.

1.     Filing of Suit/Plaint – A plaint in a normal man’s language is the complain or the allegations which are made. They are then typed and printed in the format prescribed by the court and also aligned accordingly. Such plaint needs to be filed before the limitation period comes into play or else such suit shall be time barred. All the relevant details such as

Ø Name of the Court

Ø Name of the Parties to the suit

Ø Address of the parties

Ø Nature of such complain etc

Must be mentioned in the Plaint.


2.     Vakalatnama/Power of Attorney – A Vakalatnama or as is more precisely called “Power of Attorney” in the State of West Bengal is a power which is required by an Advocate from its client to represent them in their matter. A Power of Attorney is a power which entitles the Advocate to fight out your case and represent himself as your duly assigned agent. It is a must required document without which no Advocate has the permission to represent his client.


3.     Payment of Court Fee – Every suit which is entertained in a court requires the full payment of proper court fee before it is submitted. Therefore, the payment of proper and accurate court fee is another major criterion. The amount of the court fee varies in different cases and differs from state to state. Henceforth, proper and accurate court fee shall be submitted and pasted wherever necessary.


After all the above process are over the court shall fix up a date for “Hearing” on such date the court shall entertain the suit and decide whether it has merits to proceed further or not. Based on the merits and discretion of the court the court shall either


Ø Allow the Suit

Ø Disallow the Suit


If in case the court finds that there are merits in the suit then it shall allow the suit to be entertained. However, if the court finds no merits then it shall dismiss such suit without calling the opposite party/respondents.


4.     On the day of hearing only if the court feels that the case has merits then it shall upon its own discretion issue notice to the opposite party and ask them to appear in the court on such next date which is fixed by the court itself.


5.     The plaintiff in the meanwhile is required to do the following


Ø He should file the proper amount of court fee

Ø File the proper copies of the plaint in the court [Remember for every defendant, 2 copies need to be submitted one which will go by Speed Post and one by Ordinary Post.


6.     Filing of Written Statement [W.S.] – Upon the receipt of notice the Opposite Part/Respondent is required to appear in the court and in the meanwhile is also required to file his Written Statement. Such written statement is a reply to the plaint and in other words can be called as a defense of the Opposite Party. Such written statement shall be filed within 30 days of the receipt of the notice which can be further extended to a period of 90 days [only if the court permits]. Such Written Statement shall explicitly deny the false allegations in the Plaint. Any such allegation which is not explicitly denied will be deemed to be accepted.


7.     Replication – A replication is a reply of the written statement submitted by the opposite party/parties. Such replication shall also explicitly deny all the allegations which are falsely put by the Opposite Party/Parties and any such allegation which is not explicitly denied shall be deemed to be admitted. Once a replication is filed, the pleadings are said to be complete.


8.     Filing of other relevant documents – Once the pleadings are over both the parties are given an opportunity from the court to file all relevant and necessary documents to justify their claims.

Both the parties have an option to object documents with relevant reasons.

Every document which is rejected or not admitted is returned to the party who was filing it.

All such documents which have been filed shall be served to the other party/parties as photocopy/xerox.


9.     Framing of Issues – Once the above process is complete, the court frames certain issues upon which the subject matter of the case is decided. These issues are the basic problems and the solution of those will give a clear picture to the court as to decide the matter. The court upon passing the final order shall deal with each issue separately.


10. List of Witness/Examination of Witness


11. Final Hearing – On the day fixed for the final hearing, both the sides shall argue and put forward their views. Such arguments shall be strictly related to the issues framed by the court.

After hearing the arguments of both the sides the court shall pass a “Final Order” either on that very day or else the


12. Taking the Certified Copy of the Order


WHAT IS THE TIME TO TAKEN TO END A PARTITION SUIT?


A minimum time period of 3 years is required to for passing of the decree/judgement.

It will take a minimum of 2 years’ time to get a preliminary decree and thereafter another one year is allowed by the court to get the share in the property.

This makes the minimum time period as 3 years. However, depending upon the complexity of the matter such time period can extend.

The above-mentioned time period is the minimum and holds no guarantee. I have mentioned this in my blog so that people who are reading the same get an idea of the minimum time period which may be required to end a partition suit.


WHAT IS THE COURT FEE REQUIRED?


The determination of Payable Court Fee is not standardized and differs from state to state basis.

The amount of court fee to be paid also differs upon the amount of the partition suit.

Thus, Court Fee is determined on the following basis

1.     Amount of the Suit [it may vary from certain fixed court fee per 100/1,000/10,000/1,00,000 etc] OR

2.     A fixed amount per certain sum [Say 50,000/- for 25 lac] OR

3.     A fixed percentage per certain sum [Say 2% of total suit value]

4.     Court Fee also varies from to state to state as they have various amendments for the same.

For the purpose of a partition suit one needs to pay court fee of Rs. 500/-

If there is an injunction sough for, then, additional court fee of Rs. 50/- is required to be paid.

Once the Judge has delivered the Order, every shareholder has to pay a sum of Rs.500/- as court fee contributing to their share.

Ø In a suit for partition where

§ There is separate possession of a share of any joint family property or of any property owned

ü Whether jointly or in common by the plaintiff whose title to such property is

v Either Denied

v Has been excluded from the possession of the property

In such cases the court fee shall be calculated upon the Market Value of the share of the plaintiff.

Ø Whereas In a suit for partition and separate possession of joint family property or property which is:


§ Owned Jointly OR

§ In Common


Who is:

In joint possession of such property

Then, the court fee shall be paid on the following basis:

Plaintiffs Share [In Rs]

Rs. 3000/- or Less

Rs. 15/- [Court Fee]


Plaintiffs Share [In Rs]

Rs. 3000/- to Rs. 5000/-

Rs. 30/- [Court Fee]


Plaintiffs Share [In Rs]

Rs. 5000/- to Rs. 10,000/-

Rs. 100/- [Court Fee]


Plaintiffs Share [In Rs]

Above Rs. 10,000/-

Rs. 200/- [Court Fee]



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