How to file a suit for partition in India?

How to file a partition suit

While taking up the matters of property partition, ownership, possessions, and property are three concepts that are required to be understood in details. One who owns does not mean necessarily possesses the property, while one who possess also does not mean to own the property.

The concept of property is also tricky, and was explained in details by Hon’ble Supreme Court in the case of R.C. Cooper v/s Union of India. It was said that property is combination of the immovable land and the organization, assets, liabilities, obligations of a going concern as a unit, copyrights and patents. Which totalities the corporeal as well as incorporeal.

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So, as various laws are at play, when matter at hand will be about the partition of property belonging to a joint family or an organization, you will need to be sensitive about the following laws:

A. The Partition Act 1893

Following the provisions of sec 9 of this Act, during a partition suit, while passing a decree, if the court feels that division of property disputed is impossible, and the selling of such property will be more fruitful, then the judges are empowered to pass such decree.

In case of family property partition, Partition Act 1893 allows, when any shareholder proposes to buy land from one of the family member, then it is on the court to provide value for that part of property.

B. The Indian Succession Act of 1925

Following the Indian Succession Act of 1925, one can execute the testamentary succession as well as intestate succession. But sometimes the provisions come into effect partially as the religious laws often precedes.

C. The Hindu Succession Act of 1956

This act aims to codify and amend the laws relating to intestate succession among Hindus. This Act says that if a person converts to another religion, and cease to be a Hindu, in such a scenario, he/she will be able to claim their right in property. But, the descendants of such individuals will not be able to claim rights in the property unless they were Hindus at the time of partition. This precedent was set in Shabana Khan v. D.B. Sulochana and Ors.

D. Muslim Personal Law Act 1937

Shariat law is applicable only when both parties are Muslim and willing to be governed by the Muslim personal law. Shariat law in India allows a biological son or daughter , get to claim on the family property.

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Essentials you need to know before filing a partition suit

1. Coparceners can file for the partition of suit property.

2. Before initiation of suit a letter of notice is required to be send to all the co-owners and stakeholders in the suit property.

3. A minor can also claim right in the property via her guardian.

4. Partition deed can also be done instead of partition suit.

5. Cases can go forever.

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What is the process to initiate a suit of partition in India?

Step 1: Not every lawyer is skilled in the art of lawyering in all the fields. So, after the 

evaluation of your property at dispute and the budget you are willing to put at stake, choose the best lawyer available in the market. As, property suits are expensive to 

fight.

Step 2: Prepare the complaint with your lawyer as followed in this link. This complaint will accompanied:

1. Name of the parties (Plaintiff(s) and Defendant(s))

2. Name of the court having jurisdiction

3. Postal address of the suit

4. Kind of Suit

5. Facts of the suit

6. Cause of action

7. Prayer

8. Affidavit(S)

9. List of documents

10. Documents validating the suits.

Step 3: File the Power of Attorney(POA), sanctioning the rights to your lawyer to fight on your 

behalf. To create Power of Attorney, you can use this link.

Step 4: Make sure you have paid all the court fees, and have. kept the stamp paper of fees 

deposit in the court as evidence. Please keep in mind that the fees vary depending on the kind

Of suit and the value of disputed property.

Step 5: After all the above steps, court will either dismiss or give you a hearing date. Even on the first hearing the court will have the discretion to dismiss the case for lack of substance or availability of other mediums such as mediation or arbitration.

Step 6: If the court finds substance and allows for trial, a summons will be sent to the concerned defendant(S) they will file the written statement in the court as a reply to the complaint submitted by you.

Note: The limited time period goes from 30 to 90 days to file the written statement. And those claims in the petition which are not rejected by the defendants in the written statement are considered accepted by the defendants.

Step 7: After receiving the written statement from the defendants, plaintiffs are required to file, “Replication”. In replication, plaintiffs are required to either deny or accept the claims of the defendant in the written statement.

Step 8: Then, the court will ask both the parties to produce the relevant documents supporting the claims made by them. Court verifies the document, and either accepts or rejects the document.

Note: Court will make both the parties to share the photocopies of the document with each other.

Step 9: Depending on all the submitted pleadings, court will frame the issues for the cases. Parties are required to fight within the framework of these cases.

Step 10: After That parties are required to file a list of witnesses within the first  15 days of framing of issues. The witnesses will be examined on the last day of hearing.

Step 11: Then on the final hearing day, present your arguments and evidence in chronological order.

Step 12: Order a copy of the judgment by filling this form.

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