Partition Suit: Explained

Authored by: Amarjeet

Introduction

Partition suits form a very integral part of the law of property, especially in the country, where the property thus belongs to a joint family. A partition suit is the only way by which co-owners can divide their property amongst themselves, either with mutual consent or under compulsion from the court. In these lines, the concept of partition suit has dealt with legal concepts, procedures, and implications.

Partition Suits Defined

In general, a partition suit is an equitable remedy that co-owners can use to accomplish an outright division of their common property, either in kind or through commensurate payment. Put alternately, only when it is found that the co-owners are incapable of reaching a compromise or understanding amongst themselves regarding a division of their shares in the property by way of partition does the very need for a partition suit arise. Any of the co-owners, or one, may approach the court for a judicial division of the property by filing a suit.

Legal Framework for Partition Suits

Partition suits in India are creatures of statute under the Indian Succession Act, of 1925, the Hindu Succession Act, of 1956, and the Code of Civil Procedure, of 1908. Enumerated herein below is the gist of certain significant features of the legal framework related thereto:

• Right to Partition: Partition is a fundamental right accrued to every co-owner of a joint property. Such right is inherent and therefore cannot be taken away except by an agreement to the contrary. However, the right of partition can only be exercised by a person having a share in the property.

• Who May File a Partition Suit?: In a suit for partition of a property any co-owner can file the suit even legal heirs can file a partition suit by inheriting a property, further a minor person may file a suit of partition through its legal guardian if he has any share in the property.

• Jurisdiction: A partition suit must be filed in a court having territorial jurisdiction where the property lies. It usually falls within the territorial jurisdiction of the Civil Court. Sometimes, even the High Court has jurisdiction.

• Cause of Action: The partition action will accrue its cause of action when one or more co-owners is denied of his/their rightful share in the property or over the division of property under dispute.

• Court Fees: Court fees for filing a partition suit are levied according to the valuation of property in dispute. The plaintiff is liable to pay court fees according to the percentage of his share in the disputed property he claims.

Process of Filing a Partition Suit

The process of filing a suit for partition is a drawn-out and protracted process, and every step to its finality is an essential element of the termination of the petition. It basically goes like this:

• Filing of Suit: A suit for partition is initiated by filing a plaint before the court of competent jurisdiction. In its plaint, the following plead shall clearly plead rights and obligations arising out of facts, preferences, particulars of schedule property, and valuation of the shares of the co-owners.

• Summons Issued: After a suit has been instituted, a summons is served by the court upon the defendants. Thereafter, the defendants are required to file written claims in response to the plaint.

• Preliminary decree: It is when all hearings by the court have been heard to grant a preliminary decree declaring what share each co-owner is entitled to in the property. It is not a final order but a base on which further proceedings should be held.

• Appointment of Commissioner: Where it is necessary that there has to be a physical division of property, the Court may appoint a commissioner who has to inspect such part and has to suggest the appropriate manner of division. The report which is made by the Commissioner is submitted in the Court for approval.

• Final Decree: The court on consideration of the report and submission shall make a final decree with full details on the division of the property, and shall be in all other respects final between the parties as though it were a final executable decree.

• Appeal: Any party feeling aggrieved by the final decree, may appeal to a superior court. The Appellate Court may confirm, vary or reverse the decree to the lower court.

Types of Partition

Partition is of two types: physical partition and partition by metes and bounds.

• Physical Partition: A partition shall be physical when the said property is physically divided into different share portions, allotting different co-owners their own share. Physical partition may be taken place only when that property has a big area and easily be divided without the value of the property being affected.
• Partition by Metes and Bounds: This is when the property cannot, at all, stand in a physical partition without running into loss in value appreciably. Hence, the property is valued and then every co-owner compensated in accordance with his or her share. Such compensation may be money or the equivalent property.

Challenges and Complications in Partition Suits

Partition suits are mainly suffer from a variety of troubles and complications that result in the procrastination of the process, and in due course, this procrastination results in disputes among the co-owners. Some of the problems are as follows:

• Dispute Relating to Shares: Dispute relating to shares of a co-owner is the common problem in a suit for partition. The co-owners, generally, do not agree upon the share each of the co-owners is entitled to thereby resorting to long drawn litigation.

• Identification of Property: Where there are co-owners of property or the same property lies at various places, then identification and valuation become cumbersome. The involvement of two or more parties makes it harder.

• Legal Heirs: On the death of one of the co-owners, his legal heirs become entitled to his share in the property. Identification and impleading of such legal heirs in the partition suit is a cumbersome process, particularly in cases where the legal heirs are not known or are living abroad.

• Disputes Relating to Valuation: This takes place particularly in partition by metes and bounds. As each co-owner is likely to have different perceptions concerning the value of such property, disputes may arise as to its valuation.

• Execution of Decree: After passing a final decree, it is very difficult to execute the decree, especially if one or more co-owners are not cooperative. Execution of decree is also usually embroiled with subsidiary court proceedings and law-enforcing agencies.

Though partition suits provide a legal remedy, it is much indicated and recommended that co-owners exhaust all possible efforts toward an amicable settlement first before resorting to court settlement. Thus, it may save time, money, and emotional stress for all parties through an amicable settlement. Some frequency of mediation and negotiation is very successful in arriving at the resolution of a conflict with a mutually agreeable solution. In how complex and time-consuming a process it may be, it gives a way of achieving that the partitioning of property is done justly and fairly among the tenants in common. Any party who wishes to amicably settle where possible—a remedy that saves the relationships and lessens the emotional and financial burdens for all parties—has to be apprised of this legal framework and problems relatable thereto of partition suits.