Partition refers to an action authorized by law, in which a court order or another means is used to divide a joint property among its owners into distinct portions, reflecting their proportionate interests. According to the principles of common law, any individual who possesses a shared ownership of the property has the right to request a division of that property. In India, the division of property is governed by several laws including The Indian Succession Act of 1925, The Partition Act of 1893, and specific religious laws such as The Hindu Succession Act of 2005 and The Muslim Personal Law (Shariat) Application Act of 1937.

WHAT KIND OF PROPERTY IS CAPABLE OF PARTITION

There are two type of property which are capable of partition

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  1. Self-acquired property: Self-obtained property is the property that an individual gets with his own well deserved cash and isn’t acquired by his progenitors. Likewise, any property gained by gift or will is likewise thought to be as a Self-Procured Property. 

Self-acquired property can’t be divided during the lifetime of the individual who has procured it. The individual who has procured the property can make a Will during his lifetime with regards to whom he needs to give his property to. On the off chance that the proprietor of the property bites the dust without leaving a will, the property is gone to his Group 1 beneficiaries.

  1. Ancestral property: The term has not been defined expressly in any statute, but the Courts have time and again explained the term. In simple terms, an ancestral property is a property which is inherited by a person up to four generation of male lineage i.e., his or her father, father’s father, or great-grandfather by birth. According to Mitakshara Law, the right to ancestral property arises from the birth itself, for a property to be an ancestral property it must remain as an undivided property. Ancestral property does not include self-acquired property, gift, partition deed.       

Arunachala Gounder v. Ponnusamy, (2022) 11 SCC 520

 The Supreme Court held that the self-acquired property of a Hindu male dying intestate i.e., without writing a will, would devolve by inheritance and not by succession. Further, the Court said that such property shall be inherited by the daughter, in addition to the property of the coparcenary which was obtained through partition. The Court observed that if a woman dies intestate, then any ancestral property passed onto her from her father would be bestowed upon the heirs of her father and similarly the property passed onto her from her husband’s family would be bestowed to her husband’s heir.

METHOD OF PARTITION OF ANCESTRAL PROPERTY

There are 4 ways of partition of ancestral property

  1. Partition deed

This is the most usually involved way for apportioning of ancestral property in India. A parcel deed is made when every one of the main beneficiaries of the property have shared understanding and agreement between them. In a parcel deed, the extent of every successor is determined and settled upon by all. Through this very few families can involve this strategy as there is less likelihood of agreement between relatives. It means quite a bit to specify every one of the individuals from the family alongside the ansectors. Mark and thumb impression of the multitude of main successors to the property are significant. Through the Law of Estoppel, an individual can’t discredit his thumb impression. Assuming you neglect to incorporate any individual from the family and later that individual documents prosecution against the deed then the association deed will be to remain. Successors to a not entirely settled through classes of main beneficiaries referenced in the Hindu Progression Act, 1956. Join a guide of the hereditary property along the parcel deed to keep lucidity connecting with the region of every main successor and to keep away from any contention later on. It makes it more straightforward for you to get a credit. Despite the fact that you need to pay a weighty stamp obligation relying on the state and DLC pace of your property. DLC rate is the district level committee group rate. It is the base property rate used to work out stamp obligation.

  1. Partition suit

The individual who is a part of the Hindu Undivided Family needs to clearly state that they wish to have a division. This is the primary and most essential requirement needed when starting a partition lawsuit. Every member of the Hindu Undivided Family should have knowledge about this declaration. Therefore, the property will be divided among the members of the Hindu Undivided Family only if they all consent to the terms of the partition. 

If a lawsuit is brought before a court, it is necessary to adhere to the correct procedure. If this procedure is not followed, the lawsuit may be rightfully dismissed solely due to non-compliance with the procedure.

Following are the step required to be followed:

  1. FILLING OF SUIT/ PLAINT: The procedure for initiating a partition lawsuit begins by submitting a formal complaint. The complainant is the one who files the plaint. In basic words, the plaint consists of the complaint or the accusations made against the defendant. The complaint should be thorough and include all important details related to the case.

It is necessary to follow the exact format required by the court. The alignment approved by the court also needs to be given attention. The complainant must make sure to file the plaint within the specified time limit, as failure to do so will result in the suit being dismissed.

The complaint should include:

  • Name of the court in question and the presiding judge.
  • The individuals or groups involved in the legal case
  • Location of the individuals involved
  • The nature of the complaint or allegation, as well as the details and evidence related to the case.
  • Adequate measures and citing legal precedents.
  • Paraphrase: Territorial jurisdiction refers to the legal authority or control over a specific area or territory.
  • Paraphrase: Monetary jurisdiction
  • The time frame within which legal actions must be initiated is referred to as the limitation period.
  • Prayer – An act of communicating with the divine through supplication or conversation.
  • The document called Affidavit
  • Verification is the process of confirming or proving the accuracy or truth of something.
  1. VAKALATNAMA: An Advocate is required to have the Vakalatnama document signed by their client. This document allows the lawyer to represent their client in court regarding the issue of partition. This document is necessary and crucial. It is mandatory for any advocate to file the vakalatnama before representing their case. By submitting the required documents, the client demonstrates consent by signing the Vakalatnama.
  1. PAYMENT OF COURT FEES: The payment of court fees is mandatory, and any legal case being taken to court requires the complete payment of the appropriate court fee. Therefore, it is essential to meet the requirements for submitting the court fee. Currently, the court fee amount differs between different states. Once the court fee has been paid, a date will be scheduled for a “Hearing”. The court will determine during the hearing whether the matter will be allowed or not. Therefore, the court will make a decision based on the facts and judgment and may either

Grant Permission for Lawsuit: If the court determines that the case has sufficient merits and the plaintiff is seeking justice, it will grant permission for the lawsuit.

Prevent the Lawsuit: If the court determines that there are no significant merits or facts presented, and the issue does not require court involvement, the suit will be dismissed without involving the opposing party.

  1. HEARING DATE: On the scheduled day of the hearing, that is Once the court accepts the case, the opposing party sends out notifications requesting their attendance in court. The next hearing date is scheduled based on when all parties are available.
  2. THE PLAINTIFF REQUIREED TO ADHERE TO FOLLOWING STEPS:

File the amount of court fees and copies of the plaint in the court.

  1. FILLING OF WRITTEN STATEMENT: When the opposing party acknowledges that they have received the notice, they are obligated to go to court and submit their written response. The written statement is a response to the complaint. You must submit it within 30 days of receiving the notice. However, if the court grants permission to extend the deadline for submitting the written statement after taking into account the reasons for not responding in a timely manner, it will additionally prolong the time frame to 90 days. The Written Statement should clearly and explicitly refute all the untrue accusations mentioned in the Plaintiff’s submission. ( This text means that if allegations are not flatly denied, they will be treated as true.)
  2. REPLICATION:  Refers to a response to the written statement provided by the opposing party/parties. This replication strongly refutes all the false allegations made by the opposing party/parties. However, if an allegation is not directly refuted, it will be considered as accepted. Once the replication is submitted, the pleadings are considered finished.
  3. FILING OF OTHER RELEVANT DOCUMENTS: After the process mentioned above is finished, the court proceeds to formulate the issues. These concerns are addressed based on the mutually beneficial outcome for both parties involved
  4. FRAMING OF ISSUES: These problems are simply the fundamental concerns. The court will address each issue individually when delivering the final order.
  5. 10.LIST OF WITNESS/ EXAMINATION OF WITNESS: The attorneys have the opportunity to re-examine or cross-examine the witnesses after the list of witnesses involved is submitted
  6. 11.FINAL HEARING: At the scheduled final hearing, the attorneys representing the plaintiff and defendant will present their arguments and express their opinions. These arguments will strongly relate to the issues presented by the court. Once the court has listened to the arguments presented by both parties, it will subsequently issue a “Final Order” either on the same day or on future dates.
  7. 12.RECEIVING THE CERTIFICATE COPY OF THE ORDER: One can go to the court to obtain the certified copy of the order. The opportunity to make an appeal is available once the person who has been wronged possesses the officially verified duplicate.

Classes of Heirs

Classes of the heir are mentioned in Hindu Succession Act, 1956. These are used to determine the members of a family who will get part in the ancestral property.

Class 1 heirs mainly include: –

  1. Son/Daughter
  2. Widow
  3. Mother
  4. Son/Daughter of a pre-deceased Son
  5. Son/Daughter of a pre-deceased Daughter
  6. Widow of a pre-deceased Son
  7. Son/Daughter of a pre-deceased son of a pre-deceased son (3 levels)
  8. Widow of a pre-deceased Son of a pre-deceased Son

Class 2 heirs mainly include: –

  1. Father
  2. Son’s daughter’s son
  3. Son’s Daughter’s Daughter
  4. Brother
  5. Sister

Class 3 heirs include Agnates

  1. Agnates are distant blood relatives of male lineage.

Class 4 heirs include Cognates

  1. Cognates are distant blood relatives of the male or female lineage.

Class 1 heirs are entitled to share in the property but if no one from class 1 heir can inherit the property then class 2 heirs are entitled to inherit and so on if class 2 heirs are also not alive or can inherit the property then it is passed to class 3 heirs and at last to class 4 heirs. But if there is no heir from any classes above to inherit the property then the property is passed on to the government.

COMMON MISCONCEPTIONS RELATED TO PROPERTY PARTITION:

  • One common misunderstanding among people is the belief that a Will can be created for Ancestral Property, which is actually false. In the situation of Ancestral Property, an individual possesses a profound concern and entitlement to it. This implies that they acquire the right to the property solely by being born into that particular family. This type of property is divided based on the regulations of that specific faith. In these situations, it is not possible to create a Will. A Will is only created for self-acquired property.
  • The second mistaken belief held by individuals is that the recipient automatically becomes the rightful owner of the property once it is formally transferred to them. However, that is not true. The nominee serves as a custodian of the assets. He is responsible for completing the tasks that the person who nominated him was unable to do. He has recently been selected to carry out the tasks on behalf of the person who nominated him, but that nominator has passed away. 

CONCLUSION:

The most favourable option for initiating a partition lawsuit is by using a partition deed. This deed, once officially recorded, becomes a legally binding agreement, enabling the parties to bypass lengthy and costly court proceedings. It also serves as evidence for future reference. Alternatively, partition through family settlement is suggested for those wishing to avoid registering the partition. Both sons and daughters can file partition suits, although daughters’ rights to ancestral property have been a subject of debate. Despite the 2005 Hindu Succession (Amendment) Act, the 2015 ruling (Prakash vs Phulavati) imposed limitations on daughters’ rights. However, the Supreme Court’s 2020 ruling in Vineeta Sharma v. Rakesh Sharma clarified daughters’ entitlement to ancestral property. Additionally, unborn children have equal rights to property division. The Hindu Adoption and Maintenance Act, 1956, ensures legally adopted children receive an equal share. In light of the increasing number of partition suit cases, the Supreme Court recommends utilising Alternative Dispute Resolution methods for resolving disputes to save costs, simplify the court process, and conserve court resources.

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