Introduction
Partition generally means a division to give a part of something to someone. We can divide a whole into mini parts, each of which has its presence called partition. Law states partition as dividing a property by the Court order conveying the comparable interest of the owner. The term partition is often associated with a property.
As per the Laws in India, there are two kinds of property that the voluntary acts of the proprietors can partition:
• Ancestral Property
• Self-acquired property.
What is a Partition suit?
According to the Hindu Succession Act, 1956, and the Indian Partition Act, 1893, a partition suit is a legal process initiated by the court during a property dispute or in the absence of mutual agreement among multiple property owners for the division of the property.
If there is more than one heir present, and all of them are not ready to file a partition suit, they don’t need to participate collectively in the Partition case.
Laws that regulate Partition in India
• The Hindu Succession Act, 1956.
• The Hindu Undivided Family [HUF]
• The Partition Act, 1893.
• The Hindu Partition Act of Property 1892.
Documents needed to File a Partition Suit.
As discussed above, no mandatory law for filing a suit for partition of property states that the person must have the documents to file a partition suit. If the person does not have the relevant documents, they have the right to file a partition suit after the filing of the claim that makes the other co-sharer liable to prove the following:
• The property upon which the partition is filed does not belong to you.
• You have received your rightful part.
On the safe side, keeping some documents with you while filing the petition is advised. The required documents are listed below:
• Original copies of all the property’s title deeds
• An accurate description should include area, location, survey number, Geographical boundaries, and other property details.
• Valuation of the property.
Process of filing a partition suit in India:
Here is a step-by-step procedure to follow while filing a partition suit in India. It is important to consult with a Real Estate Advcate who knows about property law before proceeding with the following steps, as breaching any of them may result in dismissing the case.
Step 1- Filing of Suit
The suit is the legal form of complaint ordered by the Court. The party filing the suit is the Plaintiff, andthe defending party is the Defendant. If the suit is not filed within the limitation period, which is 12 years, the suit shall become barred. Listed below are the necessary details for mention in the suit:
• Name of the parties.
• Name of the Court.
• Postal Address
• Nature of such complaint.
Moreover, the suit must contain an affidavit to verify that the content of the suit is accurate.
Step 2 – Power of Attorney
Power of Attorney is the formal document that gives the power of the client to an attorney to represent them in the desired matter. Power of Attorney allows the Advocate to discuss the client’s case as the client’s duly-assigned agent. It is a crucial document, and the Advocate is disentitled to represent the client in the absence of this document.
Step 3 – Payment of Court Fee
Payment of the court fee is necessary before filing a suit. The amount may vary depending on the nature of the case and laws applicable in different states. A legal advisor can guide you in determining the appropriate court fees.
Step 4 – Hearing
After this, the Court gives a date for a hearing where depending on the opinions, whether the case has sufficient value to move or not. Depending on such determination and the discretion of the Court, it may either allow or disallow the suit. If the Court finds any value in the suit, it allows the suit to move further, or vice versa, disallow it in the first hearing.
Step 5 – Filing of Written Statement
In this step, the opposite party appears in Court and gives a written statement. A Written Statement refers to a reply to a filed suit. It is required to file the written agreement within 30 days of receiving such notice. However, with the Court’s permission, the period can be extended to 90 day s. Written Statement content must deny the claim. Any statement in the suit that is not denied is considered accepted by Defendant.
Step 6 – Replication
After the person writes a written agreement, that is called Replication. The Replication should deny all the claims, and any allegation not expressly denied in the Replication is considered to have been agreed by Plaintiff. The pleading is said to be complete right after filing the Replication.
Step 7 – Filings of documents
After the replication process, the Court gives both parties an option to show all the documents that are relevant and necessary to verify their claims. The parties can object to the documents presented by each other. Once the documents are verified, the Court can accept or reject them. The documents are presented to other party/parties in the form of a photocopy. The document is returned to the party who filed it at the time of rejection. The parties cannot depend on documents before final judgment.
Step 8 – Framing of Issues
The Court states the issues depending on the case I am determined. These issues include the reason for the conflict between the parties. The parties are needed to stick to these issues at the time of hearing their case. Each issue is traded separately by the Court on the final hearing.
Step 9 – List of Witness
After framing the issue, the list of witnesses has to be filed within 15 days of framing of issues that the Court may have prescribed (the parties plan to present before the Court). The Court examines the witnesses on the hearing date.
Step 10 – Final Hearing
Both parties may argue within the issues formed before the Court on the final hearing date. Hearing the arguments from both sides, the Court passes a final order.
Step 11- Application for a certified copy
After getting the final order, the parties can gather the original copy of the order from the Court. The application for a certified copy is made to the Registry of the Court after giving the required fees.
Partition of joint and ancestral property
Partition of ancestral property is one of the most common family property disputes in India. The partition can only be achievable for the ancestral property. You cannot suit a division of the self-owned property. Submit the required documents with your family tree proving the desired property is ancestral or joint, It would help if you pleaded concerning the family tree that shows your rightful portion of the property.
For instance, if your family consists of 5 members, including yourself, your parents, and two siblings. Then, the property will be parted into five parts, and you can claim your right over 1/5 of the property.
Conclusion
Most of the time, a single mistake may lead to the failure of your efforts for years. Partition suits need heavy stamp duty and a long time before the judgment of the case. Thus, one must always avoid doing things that can spoil all your steps.
Hope this article gave detailed insights into the proceedings of your partition suit and the other things you need to check while filling it out.
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