To divide the portion of a whole is implied as 'partition'. Partition is alternatively known to divide an entirety into portions, each of which would be separate with its different existence.
The ways of partitions in India are :
* Partition Deed
* Family Settlement
* Instituting a suit
Partition occurs by mutual consent amongst the co-owners in partition deed. It is required that the partition deed is registered with the sub-registrar's office and it is executed on a stamp paper. By registering a legal and binding effect is given to the deed. Through negotiation and talking among the family, an agreement is reached. This is done to divide the family property peacefully and prevent any dispute.
A family settlement agreement is drawn in the same format as that of a partition deed, but the only difference is it does not require any registration and stamping. All the family members must sign the settlement agreement.
One or more co-owners can file a partition suit in the court if the owners do not agree to the terms of division of the property and want different terms.
In India, for partition, no statutory guidelines or law has been specifically laid down to specify the class of people who qualify for the filing of the suit. Thus, we can infer that there is no restriction for anyone from filing a suit for partition. Any person who may or may not have any vested interest in the property may file a suit for partition. Any or all the co-owners of the property can file a suit for partition by anyone or all the co-owners. In any case, if one heir exists, not everyone has to participate in a partition suit.
One can obtain the certified copies of the same and a certificate of Market Value from the Sub-Registrar’s office. Additionally, one has to obtain the death certificates of the parents/grandparents from the concerned municipal authorities.
For filing a partition suit or any other suit, a particular process has to be followed. The suit can be dismissed on the ground if the mandated procedure is not followed based on procedural impropriety.
The steps that have to be followed for filing a partition suit are as follows:
- Filing of Suit/Plaint: In layperson terms, a plaint is that the legal variety of criticism or allegations created by the party filing such a suit. The plaintiff should be written and written in accordance with the format that has been merely and mandated by the court. The party filing the plaint is thought because the complainant and therefore the opposing party is thought as a litigant. If the plaintiff isn't filed among the limited amount that has been prescribed, such suit shall become time-barred. The subsequent are the mandatory details that ought to be mentioned within the plaint:
- Name of the Court to see the jurisdiction.
- Name of the parties to the suit
- Postal Address of the parties
- Nature of such criticism etc
- Additionally, the plaintiff ought to contain associate degree testimony or verification certifying that the content of the plaintiff is faithful to his information.
- Power of professional/Vakalatnama: Vakalatnama or the facility of Attorney is that the formal document that vests the facility within the Advocate by the consumer to represent them within the involved matter. An influence of professional entitles the Advocate to argue the case of the consumer because of the client's duly-assigned agent. It's a binding document, and within the absence of such a document, the Advocate is disentitled to represent the consumer.
- Court Fee: Full payment of correct court fee could be a necessary step before filing a suit.
Different court fees are applicable for various forms of cases and across states. Determination of the applicable court fee is finished and is affixed where necessary within the plaint.
After completion of this method, the court fixes a date for the hearing of the arguments from each party and determines on the idea of arguments if the case has enough merits to proceed forward or not. On the idea of such determination and therefore the discretion of the court, it shall either:
- Allow the suit
- Or veto the suit
If the court finds any advantage within the suit, then the court shall enable the suit to be amused.
- At the stage of hearing of arguments, if the court feels that case has merits, a notice shall be issued by the court to the alternative party exacting their look on the date mounted by the court for a future hearing.
- Meanwhile, it's needed that the complainant will the following:
The complainant should file the right court fee.
The complainant should file correct copies of the plaint within the court.
- Filing of Written Statement: when the receipt of the notice, the alternative party is meant to seem in court and file a written statement. A Written Statement, in layperson terms, could be a reply to the plaint filed by the complainant. Such Written Statement should be filed among thirty days of the receipt of such notice, and this point amount is extended up to ninety days if the court permits. The contents of the Written Statement should deny the allegations created within the plaint. Any statement within the plaint that isn't expressly denied is deemed to be accepted per se by the litigant.
- Replication: once the complainant replies to the Written Statement, such a document is named Replication. The Replication should deny the allegations created by the litigant and any allegation that isn't expressly denied within the Replication is deemed to have been accepted by the complainant. Once the Replication has been filed, the pleadings are aforementioned to be complete.
- Filings of documents: when the completion of pleadings, the court provides a chance to each of the parties to file all the relevant and necessary documents to substantiate their claims. The parties will object to the documents bestowed by one another. The court will either admit or settle for the documents that are filed or reject them. If any document isn't accepted or rejected, such document is returned to the party who filed it. The documents filed are served to the opposite party/parties within the variety of a photocopy/Xerox. The parties cannot admit any documents that haven't been filed by them, within the final arguments.
- Framing of Issues: when the completion of the method delineated on top of, problems are framed by the court upon which the case is to be determined. These problems comprise the muse of the dispute between the parties, and the determination of those problems helps in the final matter. The parties are needed to stay to those problems in presenting their case. Within the final order, every issue is addressed severally by the court.
- List of Witness/Examination of Witness: The list of witnesses that the parties shall manufacture before the court should be filed among fifteen days from the date of framing of problems or among any such periods that the court might have prescribed. On the date of the hearing, the witnesses are examined by the court.
- Final hearing: each of the parties shall argue among the problems fashioned by the court on the date of the ultimate hearing. The court shall pass a final order when hearing the arguments from either side.
12. After the ultimate order has been gone along the court, the parties will collect the certified copy of the order from the court. An associate degree application for an authorized copy is created to a written account of the court together with the desired fees.
