A partition action often involves the division of real property like a home or farmland. Nevertheless, there are times when a partition action also involves personal property like stocks. Partition is the 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 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 favour of others. Therefore, a 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.
Partition, in other words, is a redistribution or adjustment of pre-existing rights among co-owners/coparceners, resulting in the division of lands or other properties held by them into different portions and shares amongst respective shareholders.
By virtue of the partition, joint ownership comes to an end, and individual ownership is established.
It is pertinent to note here that the partition of the property can be effected among those persons or shareholders who have a legal share in the joint property. A person or a party cannot be a party to the partition if they do not have any share or interest in the property.
1. Law governing Partition in India
In India Partition can be effected through two channels:
a. By virtue of Partition Act 1893; and
b. By virtue of Code of Civil Procedure, 1908.
2. Methods of Partitioning:
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. The 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 Supreme court in
Kale and others vs. Deputy Director of Consolidation and others, (1976)3SCC119 in the 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 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 maybe 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 prepared after the family arrangement had already been made either for the record or for information 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 favour of such a person and acknowledges him to be the sole 9 owners, 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 that is fair and equitable the family arrangement is final and binding on the parties to the settlement.”
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.
3. Limitations on Filing a Partition Suit
Although a Partition Suit can be filed at any time, according to the Indian Limitation Act, the limitation period for filing the Suit for Partition is 12 years (Article 65 of the Limitation Act). The limitation period of 12 years commences with the notification of adverse claims to the Plaintiff or the co-owners in the public domain.
4. Court Fee Payable in Partition Suit
The amount to be paid for the purpose of Court Fee is determined by the state in which the Suit for Partition is being filed, as the amount varies from one state to another. The amount of Court fee to be paid is also determined on the current market value of the property intended to be partitioned.
5. 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. The demanding party may also opt for instituting pre-litigation mediation 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 of the dispute before the court.
Court then determines the claims and rights of each party after examining the case at hand and after hearing all the arguments.
If the Court feels that the property/s cannot be partitioned merely based on 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 based on this report and accordingly partition the property by metes and bound.
a. Objectives of Filing a Partition Suit for the declaration of Plaintiff’s share in the Suit properties under the Preliminary Decree.
b. For the division of the Plaintiff’s share by metes and bounds.
In a Partition Suit, at first the Court has to decide if the Plaintiff has a share in the property in question and is entitled for partition or division.
6. Types of Decrees passed by the Court
There are three kinds of Decrees which are issued by the Court in a Partition Suit:
a. Preliminary Decree;
b. Composite Decree (part preliminary and part final); and
c. Final Decree.
The Court where the Partition Suit is filed initially passes a preliminary Decree, which identifies the properties for which the partition is sought or is prayed for; and further defines and declare the shares/ rights of the parties.
When the Partition Suit is filed concerning immovable property (except agricultural land paying land revenue), and the Court easily and without further enquiry makes the division without the assistance of an appointed commissioner, or where the parties agree upon the manner of partition, the Court passes a Composite Decree. This decree consists of a preliminary Decree thereby declaring the rights of the parties and a final decree dividing the Suit property by metes and bounds in one Order
The Composite Decree is partly preliminary and partly final.
After receiving the commissioner’s report and hearing the objections, the court confirms, varies or sets aside the contents of the report and, based on the outcome, passes a Final Decree.
Through Final Decree the parties get the relief of dividing the property by metes and bounds. The Suit is completely disposed of after the final decree is passed.
7. Conclusion
In conclusion, the Partition Suit is a legal process that divides the property among co-owners. Any or all the co-owners of a property can file a partition suit. Any person having a share in the property, intended to be partitioned, can prefer a Suit for Partition.
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