Partition of joint property (means a property situate in India) is a division of that property which is held jointly by some persons, so that each person gets his share and he/she becomes owner of the share allotted to him or her.
2. Pre- Requisite of partition
If property can be partitioned without destroying the value of property, then this partition has to be done, but if any partition cannot be done unless the property is destroyed then the compensation should be given.
Before amendment of Hindu succession act 2005, females were not considered as coparcener, but some females like mother and grandmother had the right to share at the time of the partition. But after the amendment with retrospective effect females become coparcener by birth and she has same rights and liabilities as son.
4. Methods of partition
Partition is the dissection of status, severance of joint status can be brought by in many ways–
1. Partition by mutual agreement
Partition of the property by mutual agreement can be done by Partition Deed or Family settlement.
- Partition Deed
Partition Deed divides the property between the co-owners of the property. This deed is prepared in order to divide the property so that each person gets an absolute title over his own part of the property. The partition deed is executed by the co-owners themselves. This is done by distributing the property according to the share each co-owner is entitled to. This does not mean that the property would be equally divided. The division is according to the law.
Acts governing the Partition by Partition Deed
The partition by partition deed is governed by Indian Succession Act where there is no special act governing that particular religion. After the Partition Deed is executed, each co-owner becomes the absolute owner of their share of the property and they can dispose of the property as they want it to. This means that they can sell, transfer or gift it to anyone as they want.
The deed must be registered and executed on the stamp paper in a very clear and unambiguous manner, specifying the share each co-owner has been given.
- Family Settlement
The property can also be divided by family settlement where the family does not want the Court to be involved, they go for the negotiations and settle the matter. The family settlement deed need not be on stamp paper or be registered. Also, it need not be written but it must be with the complete satisfaction of all the co-owners.
2. Partition through Court
Before filing a partition suit, a legal notice must be served to all the co-owners specifying their interest in the property, their share, and the action to be taken and try to settle the dispute. Even after this, if the dispute is not settled, then a civil suit is filed before the Court.
Limitation Period: The limitation period for filing this suit, according to the Limitation Act, 1963, is twelve years from the date the possession of the defendant becomes adverse to the plaintiff. However, the burden of proving that the suit is barred by time is upon the opposite party.
Court Fee: The Court determines the court fees according to the value of the suit and the court fees must be paid before filing the suit. The fee differs according to the case and also with the respective state jurisdiction.
Time Involved: The time involved in the partition suit can not be ascertained as it purely depends upon the facts of each case and the technicalities involved.
3. Partition through Will Probate
Probate is a copy of the will certified under the seal of the Court. Probate can be granted only to the executor under the will as stated under Section 222 of the Indian Succession Act, 1922.
After filing the petition, the Court gives public notice in any leading newspaper to invite any objection. If there is no objection, the Court upon being satisfied considering the evidence, grants probate.
Limitation Period: According to Article 137 of Limitation Act, 1963, the limitation period for filing probate petition is 3 years from the date when the cause of action accrues or the right accrues.
Court Fee: A stipulated Court fee has to be paid depending upon the facts and the state jurisdiction of the case.
Time Involved: There is no specified time which is given under any act as to when the suit must end. It purely depends upon the facts and circumstances of the case and the technicalities involved in it.
6. Jurisdiction of suit for partition
Suit instituted for the partition of immovable property, shall be instituted in the Court within the local limits of whose jurisdiction the property is situated.
*There are two types of school of law: Mitakshara School of law there was division of right and division of property and under Dyabhaga School of law partition only means the division of the property in accordance with the specific shares of the coparcener. Dayabhaga school of Law was observed in Bengal and Assam, Mitakshara school of Law was observed in rest of the India.
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TEAM SIGMA LEGAL