How to file a partition suit for a property in India

how to file a partition suit for a property in india

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.

Read More: Division of property between brother and sister after father’s death

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.

Read More: Division of Property Among Daughters and Daughters-In-Law

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.

Read More: Property rights of a wife after husband’s death

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.

Things to do when your home is not selling

Things to do when your home is not selling

A house is essential for a decent living. It is a part of “right to life”, a fundamental right. Investment in a house is made to create a permanent asset.

Investment in real estate is also a lucrative business option, more comfortable and predictable as compared to investment in stocks and shares.

House is put on sale for various reasons like:

  • Relocation
  • Speculative purposes
  • Financial necessity/Distress Sale

If the sale of the house is not getting any response, we advise our clients to consider certain factors as mentioned below: 

Pricing: setting the right price   

Setting the right price for home is very important and depends on the market rate. It is necessary to analyse price influencing factors such as the area where the property is situated, demand for the house whether for residential purpose or speculative investment etc. Accordingly, the price can be changed to attract the buyers and should be set to recover a reasonable amount. Reduction in price should be the last resort.

Time of sale:  Postpone the sale

There is a time when selling a house is more advantageous. It is when the demand for home is rising. Rising income, easy credit availability etc. are some factors which influence the demand for house. If the house is not selling, wait and watch the market movement. If the buyer has too many options, better to postpone the sale.

Try other alternatives: Lease or Rent

If the house is not selling, try other alternatives like offering the house on lease or rent. A tenant may be interested, and such a tenant who has a stake in the house will take good care of the property also.

Sometimes the buyers are not interested in immediate purchase as the arrangement of finance might be a problem. An offer of lease attracts such buyers as there is always an option to buy later. 

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Ensure that the sale of the house has been properly advertised to reach to the maximum number and photographs of the house show the best features.

Title of the house and updated government records:

Ensure that the house put on sale has manifestly clear title and is free from all encumbrances. This fact should be evident from the Government records which buyers do check before buying a property. The land where the house is located is not disputed.  Take care that in a housing society, the house is freehold and sale is permitted without hassles.

Incentive:

Try offering some incentive e.g. discount if payment made early or payment made in full at once. 

Repairs/ Renovation:

The house on sale must be in order beforehand.  Repairs, where ever required should be attended. If need be, parts of the house can be renovated to enhance the physical as well as the material value of the house.

Real Estate Agent

The real estate agent hired for selling the house needs to be changed. The sale may require new perspective and better professional skills. Real Estate Agent should not have any vested interest in the sale.

Relocation Companies:

In case of relocation for work, employers arrange for buyouts through relocation companies.  It can be of great help.

Legal Advice: It is always better to engage a lawyer for the brokerage contract, title search, knowing the tax implications and preparation of legal documents, in case of property related matters. Selling a home becomes smooth with right advice and strategy.

When Caretakers Try to become Property Owners

When caretakers try to become property owners

In India the culture of leaving behind property as the responsibility of caretakers is an ongoing culture, especially in the case of NRI’s due to their living outside of the country for long durations. However, property possession is nine tenths of the law and that is something that provides for great merit in rightful claim over property. The reliance of individuals over their caretakers/servants/agents for the benefit and upkeep of their properties is increasing as the days are going by.

The Supreme Court in 2012 gave a decision for matters where the servants/caretakers/tenants etc. have tried to usurp the property of individuals and have tried misusing the justice system. There have been instances where these caretakers and tenants etc. in the absence of the real owners of the property have tried to claim rights in the property and have also refused to vacate and give up control over the property (on ground of 12 years of uninterrupted possession/adverse possession).

Although these claims are unjustified, but they have been known to delay the process of providing justice. In cases of Maria Sequeria v Erasmo Sequiria as well as Ramrameshwari Devi v Nirmala Devi it was held that a caretaker/servant/agents possession is not in his own capacity but is in the capacity of the rightful owner of the property.

The real property owner has a right to file for an eviction for the same.

In a case, the Supreme Court even held that since such frivolous matters cause a lot of costs to the individual who is the rightful owner, that individual has the right to demand restitution but since in the pertinent case, the appellant was a watchman who wouldn’t have been able to bear those costs, the Supreme Court dismissed the case with a fine of Rs. 25,000.

The Supreme Court has upheld principles like – the title of a property does not get acquired by an individual just because that individual was allowed to stay cost free, caretakers servants etc. do not acquire possession of property regardless of how long the stay, court protection can only extend to a person who has a valid rent/lease/license agreement.

The Supreme Court should be commended for this strong and ground breaking decision since this judgment upholds the rights of the actual property owners and safeguards them from the land grabbers.

All partitions needn’t be sad stories – Partition of Property

partition-of-property

There are times that an NRI is the co-owner with somebody, in a property. By itself this might not be a problem; but sometimes, this leads to property disputes taking place. Usually the scenario would be that the other person would be seeking major control or manage or even try and sell the property as to create problems for the NRI. This clearly goes against the interest of the overseas citizen. It prevents him from taking any action related to his own property.

NRI Legal Services is a professional legal management company which offers advice on all matters related to property disputes. We advise all clients that in such circumstances, filing of a Suit after seeking appropriate advice is the best remedy available under law for an NRI. In all such cases, clarity on individual ownership of any land held jointly is a must. It aids in proper management and control of the NRI’s property.

  • Partition is a process whereby a property that is jointly owned by several persons gets divided into separate portions such that every person then gets a share as per his legal entitlement.
  • Once the division is done, every part would get a new title, and every ‘owner’ then would be giving up his stake in the other portions.
  • That means that there would be complete autonomy to operate in the partitioned holding. Meaning thereby that nobody else can interfere in the holding where you would have stake.
  • The property in question here could be the ancestral land, a house or a commercial establishment that has been inherited along with siblings or other co-owners.
  • Joint ownership does not mean that people lose out on their property because of any confusion and complication.
  • Do remember that a co owner’s stake would be both inheritable and transferable.
  • A prerequisite is that each holder’s investment, undivided share in the interest and title of the property needs to be defined clearly.
  • This would avoid problems in transfer, inheritance and taxation.
  • Partition is two kinds -contested or uncontested.
  1. In a contested scenario, when the involved parties do not agree, a legal suit has to be filed in the courts.
  2. In an uncontested situation, the co-owners mutually agree to the solution. The shares of the people involved would depend on the particular share for each one as mentioned in their purchase or inheritance document.

Sometimes, in the case of some urban commercial or residential properties where individual saleable units cannot be carved out or partitioned, the court orders a sale of the same. After the sale, the proceeds are divided according to the share of each person. Once that is done, each owner is free to take whatever decision he wants to about his individual holding. It is possible for NRIs to file and then be suitably represented in a suit with the help of our team of legal experts without even visiting India during the process. The company has an undeniable advantage of over seventeen years of experience and thousands of clients – it places us at an advantageous position in handling NRI property dispute cases.