Partition is a division of property among those who are entitled to the same. In case of property held jointly, if all the co-sharers decide mutually among themselves to divide the property and agree for specific share, there is partition by mutual consent. If there is a dispute, the parties file a suit for partition in a civil court.
Existence of a Right:
A person can claim a share if he has a right in the property. The right can be there:
- As a legal heir
- As a co-owner/co-sharer
- Through any document conferring the share – Will, Gift Deed, Sale deed etc.
When the partition suit is filed, Court may fix an enquiry and appoint a Court Commissioner to ascertain the existence of the right of the party and its share in the suit property.
Process of filing a partition suit:
Partition suit is a civil suit, and the process of filing is the same as that of a civil lawsuit.
A. Drafting and filing of plaint – A plaint is nothing but a statement of facts of the case wherein the claimant explains and justifies his claim for the share in the property.
- A plaint is drafted as per the formats applicable in a particular court. Generally, it is the same everywhere in India with a few differences in presentation.
B. Affixing the appropriate court fee – Requisite court fees must be deposited at the time of filing the plaint. It is essential to submit an accurate court fee. The court fee depends upon :
- Nature of the case- If the parties are in joint possession of the suit property, the amount of the court fee is fixed. The court fee does not depend upon the market rate. If the party is not in possession, the court fee is paid on his share as per the market rate.
The court fee structure varies from State to State.
C. Placing on record the relevant documents: The party in support of its claim submits the relevant documents. The documents can be-
- Title deed – It is the primary document which confers the title to justify share in the joint property. It can be in original. If original not available, certified copy can be obtained.
- Valuation of property- A certificate is issued by the Office of Sub Registrar confirming the value of the property as per the market rate.
Any other document can be filed, which establishes the right in the suit property or which fails the claim of the defendant.
The party filing the suit may or may not possess the original documents. Certified copy of the same can be obtained from the offices of concerned authorities.
Who can file?
Any or all of the co-owners can file a partition suit. The co-owners can be legal heirs also if it is a family property. Anyone having a share in the property which is intended to be partitioned can file the suit.
Where to file?
A suit for partition is filed in a Civil Court having jurisdiction over the area where the property is located. If there are several properties, the lawsuit can be filed in any one of the courts.
The partition suit results in a decree which ends the joint nature of the property. Court may order sale of the property and distribution of sale proceeds.