Apr 18,2022 | 5 min read

PARTITION AND SUCCESSION SUITS | Property Law

In law, the phrase "partition" refers to the division or separation of real property by a court order, or the division of a concurrent estate into different sections, each of which reflects the proportional interests of the property's owners.

In general, partition indicates that the individual coparceners' joint ownership has been divided into independent ownership. As a result, partition is sometimes defined as "the crystallization of a coparcenary property's changing interest into a precise portion in the joint family estate."

A partition, in another meaning, rights the parties to their individual halves of the property and terminates joint ownership or title. It is a property redistribution among joint owners/coparceners that results in the cessation of joint possession and the parties receiving sole rights to their share of the property. If the property's sharers have a legal stake in the property, the division can be done among them. A person who has no bona fide interest in the property is not allowed to take part in the division or claim any portion. A type of 'partition' is 'separation of share.' 

A partition, for example, occurs when four brothers who own a property divide it among themselves using metes and bounds. However, if only one brother wishes to have his part divided and the other three brothers maintain joint, only one brother's share is detached. Any co-owner can file a partition suit in court if the co-owners are not amenable to a property division and just one or more of the co-owners want the partition or if there is a disagreement about the partition.

A partition suit is a legal action filed in a competent court with the goal of legally splitting jointly owned property. This lawsuit is only filed if other co-owners of the property ignore a legal notice on the split of a property that was preceded by a sharer.

TYPES OF PARTITION

De Jure Partition:

In an undivided coparcener, all incumbent coparceners have a combined stake in the property, and none of the coparceners can tell the precise amount of share that he holds in the property until the division takes place.

De facto Partition:

Cohesion of ownership, which relates to the coparceners' ownership of property, may persist after the separation of Joint status or split of collective interest. No coparcener waives his right to claim any property as his sole share, even if the number of shares in the property is not indicated. "When the Unity of Possession is broken up by a real property division, a de facto partition arises.

ESSENTIALS OF A VALID PARTITION

It is pertinent to note that a coparcener reserves a right to demand partition at any time without the consent of the other coparceners. Therefore, in order to bring demand for partition the following essentials must be established:-

  • There must be an intention to separate from the Joint Family.

  • There must be a clear, unequivocal and unilateral declaration which conveys the intention to separate from the Joint Family.

  • The intention must be communicated to the Karta or to the other coparcener in his absence.

LAWS GOVERNING PARTITION 

Two major laws governing partition suits are the Partition Act, 1893, and the Code of Civil Procedure, 1908 (CPC). The important provisions of CPC which are relevant to the partition of property are Section 54, Order 20 Rule 18, and Order 26 Rule 13 & 14.  The court issued a commission to make partition under Order 26 Rule 13 & 14 of the CPC The Chapter VI C of the Civil Rules of Practice provides special procedure relating to partition suits in Kerala State. Other states will have equivalent rules.

WHO CAN FILE A PARTITION SUIT?

There is no legislative rule in Indian law as to who can or cannot launch a partition suit. According to this rationale, there is no barrier preventing a person from filing a partition litigation. Anyone can launch a partition suit [even if they have no contingent or vested interest in the property and yet have the ability to do so]. A partition suit can be filed by any or all of the property's co-owners. Although there are multiple heirs, not many of them are ready to join in a partition suit, it is not necessary for all of them to do so. A partition litigation might be filed by any of them or by all of them.

It should be emphasized, however, that a partition suit may only be brought when a legal notice has been delivered for the purpose, and the legal notice has not been accepted or answered to, which will be considered disregarded in the eyes of the law. A partition action is only brought under certain situations. 

LIMITATION PERIOD IN A PARTITION SUIT 

The law of limitation prohibits the partition of a property, which is controlled by The Limitation Act. As a result, the time restriction for filing a partition litigation is 12 years. The 12-year period begins when the adverse claim against the plaintiff or the co-owners is made public. The 12-year calculation must begin after that date and not before. The burden of proof is on the opposing party to show that a partition litigation is time-barred, and they must do so in their written statement. Simply stating that the litigation is time-barred will not play an important role unless and until it is proven by information and statistics that the suit is time-barred. Limitation rules are intended to ensure that parties do not engage in dilatory tactics and instead seek redress as soon as possible. 

PENDENTE LITE TRANSFEREE:

Even though a pendente lite transferee is not introduced on record by Order XXII, Rule 10 C.P.C. He is allowed to submit an application under Order IX, Rule 13 C.P.C. to earmark the judgment entered against his transferor, according to the Supreme Court in Raj Kumar v. Sardari Lal.

 

REFERENCES 

https://www.lawyersclubindia.com/articles/partition-suit-principles-practices--10449.asp 

https://blog.ipleaders.in/important-things-remember-filing-partition-suit/ 

https://www.vidhikarya.com/legal-blog/how-to-file-a-partition-suit-in-india-a-step-by-step-guide 

https://www.tclindia.in/nature-and-incidents-of-a-partition-suit/ 

http://mja.gov.in/Site/Upload/GR/Title%20NO.223(As%20Per%20Workshop%20List%20title%20no223%20pdf).pdf 

Workshop Summary Paper on Hindu Succession Act under sections 6, 9 and 12- Prepared by the Core Committee -

https://www.tclindia.in/factors-to-be-examined-in-determining-suit-for-partition-possession/ 

https://www.tclindia.in/nature-and-incidents-of-a-partition-suit/ 

https://sites.google.com/site/sarinadvocate/partition-suit 

CPC by Mulla, Vol. 1, 1995 Edn., P.21


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