Partition of property means redistribution or adjustment of pre-existing rights, among co-owners/ coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division by way of Partition is that the joint ownership is ended, and the individual shares vest in them in severalty.
A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot be a party to a partition. `Separation of share' is at the core of 'partition.' When all co-owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated. Others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where three brothers owning a property divide it amongst themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and the other two brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for Partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties but also a division of his share by metes and bounds.
Generally following issues are involved in partition:
To file a civil partition suit, there is a limitation of 3 years from the date when the right to sue accrues, beyond which, the law of limitation would strike the suit. In a suit for partition or separation of a share, the court at the first instance decides whether the plaintiff has a share in the suit property or whether he is entitled to division and separate possession. The decision on these two issues is the exercise of a judicial function. It results in the first stage decision termed as `decree' under Order 20 Rule 18(1) and termed as `preliminary decree' under Order 20 Rule 18(2) of the Code. The division after that by metes and bounds, considered to be an administrative act requiring the physical inspection, measurements, calculations and considering various permutations/combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2). Rule 18 of Order 20 of the Code of Civil Procedure (`Code' for short) deals with decrees in suits for Partition or separate possession of a share therein.
A partition suit can be filed only when a legal notice has been sent with regard to the same. If such legal notice has not been accepted to or replied with, it shall be treated as disregarded in the eyes of the law. It is only under such circumstances that a partition suit is proceeded with.
The party who files such a partition suit is advised to keep the following documents in place before submitting a partition suit-
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.
The partition suit is a civil suit, and the filing process is the same as that of a civil lawsuit.
The Limitation Act governs the period of limitation for partition suit. Accordingly, the period of limitation to file a partition suit is 12 years. The calculation for the period of 12 years of limitation shall begin from the day that the adverse claim to the plaintiff arises.
A partition suit takes three years for completion. The grant of preliminary decree takes around two years, and the court gives another one year to obtain the share in the property.
The court fee is not standard and differs from each state in India and also on the value of the partition suit. The same can be ascertained with the help of the best property lawyer in the designated state.
How do I partition a joint property?
Joint property partition is done by dividing the property according to the shares to which each of the parties is entitled to as per the law applicable to them.
How long does a partition suit take in India?
Generally, a partition suit takes three years for completion. The grant of preliminary decree takes around two years, and the court gives another one year for obtaining the share in the property.
Who can file a partition suit in India?
Any person with a current or future interest in the property may bring the action for Partition. It includes existing co-owners (joint tenants, tenants in common, etc.) as well as people with a future interest (remaindermen to life estates.)