Before you file a partition suit in India, there are a few things you should know

Before you file a partition suit in India, there are a few things you should know

The process by which jointly owned assets, along with the corresponding rights and interests therein, are divided into shares to which each party has exclusive rights, is referred to as partition.

With the end of shared ownership, the division is complete, and each partner receives their respective share. In another sense, a partition ends shared ownership or title and grants the parties to the partition their individual shares of the property.

Property is redistributed among the joint owners/coparceners, ending joint possession, and parties receive exclusive rights to their respective shares of the property. As long as each sharer has a legal claim to the property, the share can be divided among the sharers. A person who has no legitimate claim to the property is not permitted to take part in the partition or to make any claims for shares.

A partition can be implemented through a deed in the case of a partition by mutual consent, if the parties agree on the terms of division. The deed may be put into effect by being registered in the registrar's or sub-office registrar's of the location where the property is located. The division deed becomes valid and enforceable after being registered.

Family settlement agreement

Another means of dividing property is through a family settlement agreement. A family settlement agreement and a partition deed differ in that a family settlement agreement doesn't always require stamp duty and registration, whereas a partition deed must.

Before filing a Partition suit, here are a few things a person should know:

Any co-owner may approach the court to initiate a partition suit if the co-owners are not amenable to a property division and just one or more of the co-owners demand the partition or there is any disagreement regarding the partition.

A partition suit is a judicial action brought before a court of competent jurisdiction to divide jointly owned property. Only after the other co-owners of the property have ignored a legal notice regarding the division of the property that was preceded by a sharer is this lawsuit filed.

Laws governing partition in India:

  • Hindu Succession Act, 1956: It is a post-independence law that was passed to formalise the succession and inheritance of Hindus, Buddhists, Sikhs, Jains, and anyone else who is not a Muslim, Christian, Parsi, or Jew. It covers both self-acquired and inherited property succession in the event of intestacy. The Act grants both males and females their inheritance rights while setting forth distinct norms and procedures for each.
  • Muslim Law of inheritance: The Muslim Law of Inheritance, which is a component of Sharia, regulates Muslim succession and inheritance. In accordance with the Muslim Law of Inheritance, both men and women have been properly given their inheritance rights. In Muslim law, there is no distinction between privately obtained property and inherited property, and one fundamental aspect of Muslim inheritance law is that an heir only becomes entitled to an inheritance after the death of the heir's ancestor.
  • Indian Succession Act, 1925: It allows for both intestate and testamentary succession. Except for Muslims, all communities are covered by the Act in cases of testamentary succession. In the case of intestate succession, it applies to Christians and Parsi in India when it comes to intestate succession. Property owned by any Hindu, Buddhist, Muslim, Sikh, or Jains is exempt from Part V of the Act's intestate succession provisions (Section 29, Indian Succession Act).
  • Partition Act, 1893: The Partition Act was passed in 1893 to allow for the sale of property in circumstances when the court determines that it would be more advantageous to sell the asset and divide the revenues among the stockholders rather than attempt to divide the subject property fairly and conveniently. According to the Act, in these situations, the court may order the sale of property and the distribution of the earnings.
  • Code of Civil Procedure, 1908: The Code of Civil Procedure, 1908 and its many parts govern the procedural part. Section 54, Order XX Rule 18, and Order XXVI Rule 13 and 14 are a few of the significant ones. A commission may be appointed under Order XXVI Rule 13 to divide or separate property in accordance with agreed-upon rights. Rule 14 outlines how property will be divided by the commissioner chosen and distributed to the shareholders.

Essential documents that are required for filing a Partition Suit:

  • Identity proof documents of the petitioner.
  • Birth and Residence proof of the petitioner.
  • Certified copy of all the property related deeds i.e. the title deeds.
  • Will (if any).
  • Affidavit.
  • Document certifying the valuation of the property.

Important things to remember while filing a partition suit

  • Nature of the property: In the first place, it's crucial to determine the nature and character of the property, including how it was acquired, who was the property's original owner, whether it was acquired independently or through ancestry, whether it is a joint-coparcenary property and who the coparceners are, etc.
  • Cause of action: A partition suit is essentially a plaint. Therefore, bringing a partition claim requires having a valid cause of action.
  • Jurisdiction of the court: Before filing a partition suit, it is important to consider the court's jurisdiction, particularly its territorial jurisdiction.
  • The substantive law governing the succession rights of the parties: It is essential to take into account the substantive law controlling the parties' succession rights. In India, the parties' own laws determine succession.

The Hindu Succession Act of 1956 governs Hindus, the Muslim Personal Law (Shariat) Application Act governs Muslims, and the Indian Succession Act of 1925 governs Christians. Depending on the nature of their marriage and other circumstances, such as when the form of succession is testamentary, parties belonging to different religions may also be subject to the Indian Succession Act of 1925.

A partition suit is a legal action brought before a competent court to divide jointly owned property among the co-owners and to resolve issues arising from a partition dispute. Knowing the substantive law that applies to the parties at issue is crucial when initiating a partition lawsuit.

Other crucial elements include giving the co-owners advance notice, attending to the limitation period (if applicable), cause of action, having the crucial papers close at hand, and bringing the lawsuit in the appropriate court. To provide a comprehensive understanding of the contents and drafting involved in such a suit, a sample of a partition suit is attached.

Aforementioned things are quite crucial for someone who is going to file a partition suit, hiring a professional lawyer who has aced the particular field will help a person to resolve his dispute and give him the correct piece of advice for his suit.

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