Partition Suit: Principles & Practices

What partition means

Partition is the division of jointly held properties, along with the associated rights, into different portions and delivery thereof to the respective persons. In partition the joint ownership comes to an end and the respective parties are vested with the eligible shares.

The partition in another sense means to give a person his monetary value of the share in the joint properties. A valid partition converts joint title of the parties into exclusive title of the shareholders. Similarly it converts joint possession of the co-owners into exclusive possession of each shareholder.

Partition in other words is a re-distribution 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 shareholders. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. In partition the co-ownership is converted into individual ownership.

A partition of property can only be done among those who have a share or interest in it. A person having no share or interest in the property cannot be a party to the partition.

Laws governing partition

Two major laws governing partition suits are the Partition Act, 1893 and the Code of Civil Procedure, 1908 (CPC).

The important provisions of CPC which are relevant to partition of property are Section 54, Order 20 Rule 18, and Order 26 Rule 13 & 14.  The court issue commission to make partition under Order 26 Rule 13 & 14 of the CPC

The Chapter VI C of the Civil Rules of Practice provides special procedure relating to partition suits in Kerala State. Other states will have equivalent rules.

General matters relating to partition suit

In a suit for partition, at the first stage the court must decide whether the plaintiff has a share in the suit property and is entitled to a division and separate possession.

In partition suit all persons entitled to shares shall join as parties. If any part of the joint property is already alienated the person to whom the property is alienated (alienee) shall be made a party to the suit. The plaint shall state the relationship of the parties and the share which the plaintiff is entitled to, along with other details of the property including outstanding debts and liabilities.

Partition or Separation of shares

Partition is done for separation of shares among the co-sharers of the property for individual possession of each share.

The term separation of shares refers to a division where only one or only a few among several co-owners get separated, and others continue to hold the remaining property jointly without division by metes and bounds.  Separation of share is a partial partition. When all the co-owners get separated, it amounts to partition in its full swing.

For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if one brother wants to get his share separated and other three brothers continue to remain in joint ownership, there is only a separation of the share of one brother.

Preliminary, final and composite decrees

In a partition suit the court will issue three kinds of decrees to settle the issue to rest: preliminary decree, composite decree (partly preliminary & partly final), and final decree.

The purpose of a suit for partition or separation of a share is twofold: one declaration of plaintiff's share in the suit properties under the preliminary decree, and the other is division of his share by metes and bounds which would take place under the final decree.   In some cased the property will be put to sale and the proceeds will be shared among the share holders which can be termed a final decree.

In the final judgement, the court shall direct the parties to deposit in the court the amount required for the non-judicial stamp paper for engrossing the decree in proportion to the value of their share. The decree in a partition suit shall be prepared on judicial stamp paper of the requisite value. The decree shall be retained by the court and copies of the same shall be furnished to the parties. A copy of the deed will be sent to the Sub-Registrar of the place where the property situates, for filing it in Book No 1 in his office. Therefore the final decree in partition suit, which will form part of the registration records, is treated as a registered document.

In composite degree, both actions would take place in one go. It is a two-in-one process.

Issue of Preliminary decree

In a partition suit, if the court cannot make a division of property by metes and bounds forthright without further inquiry, the court will initially pass a preliminary decree.

A preliminary decree for partition identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. The prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings.

Court passes composite decree when parties agree

In regard to immovable properties (other than agricultural lands paying land revenue) - such as buildings, plots etc. or movable properties - where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a composite decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds, in one judgement.

The composite decree is partly preliminary and partly final. The decree declares the proportion of shares and divide the property, thereby settling the partition to rest in one go.

Court must refer separation to the Collector/ Commissioner

Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred either to the Collector or to a Commissioner for division if the parties do not agree to the manner of division. In the normal course the court will do this duty as a continuation of the preliminary decree.

Sometimes the matter goes into cold storage due to lack of diligence and will be revived only when an application is made by any of the parties, drawing the court’s attention to the pending issue of referring the matter either to the Collector or to a Commissioner for actual division of the property.

Process of partition of estate assessed to payment of revenue

In regard to estates assessed to payment of revenue to the government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with Section 54 of CPC.

If the Collector takes action in the decree appropriately, the matter will not come back to the court and the court will not have to interfere in the partition, except attending any complaint of an affected third party.  

While making the partition the Collector is bound by declaration of the rights of the parties in the preliminary decree. But the Court has no power to fetter the discretion of the Collector conferred under the law. However in regard to any issue on which the Collector is not competent to decide, the Civil Court will have the power to dispose of.

If the Collector disregards the terms of the decree, the Court is entitled to refer the case back to the Collector to re-partition the property. The Collector must actually divide the estate in the manner he thinks best keeping in mind the nature of the land as revenue paying entity and the stipulations of the decree.

The object of this provision is twofold:

  • firstly, the revenue authorities are more conversant and better equipped to deal with such matters than a civil court and
  • secondly, the interest of the government in regard to the revenue paying estate would be better safeguarded by the Collector than by the civil court.

Issue of Commission to make partition in other cases

In cases of immoveable property other than the above mentioned (see Order 20 Rule 18(2)) where the court passes a preliminary decree for partition, the Court may issue a commission, under Order 26 Rules 13 and 14, to a person (usually an advocate along with a survey official) to physically examine various aspects and conditions of the property to be divided and make partition or separation of property according to the rights declared by the court in the preliminary decree.

The Commissioner will, after necessary inquiry, physically examine and divide the property into required number of shares and allot such shares to the parties. The commissioner shall, if so authorised in the court order, award such amount of money to be paid to the parties for the purpose of equalising the value of the shares. The division by metes and bounds is a ministerial or administrative function requiring physical inspection, measurement, calculation and consideration of various possibilities of division.

The commissioner will then prepare a report apportioning each share by metes and bounds in a distinguishing manner and send it to the court. If the commission consist of more than one person and they cannot agree the commissioners can send separate reports to the court.

Final decree proceedings in partition

On receipt of the report of the commission and hearing objections thereto the court confirms, varies or sets aside what is apportioned in the report and passes a final decree whereby the relief of separating the property by metes and bounds is granted in its entirety leaving nothing else to be done. The decree will be the final one when the court completely disposes of the suit wherein no further adjudication remains.

In the final decree, the court declares separation of shares by metes and bounds, if possible, or takes other measures for the parties to get the proceeds on sale of the property thereof.

Court can direct sale instead of partitioning

In a suit for partition, if it appears to the court that a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial to the shareholders, the court may, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.

The court can proceed for sale only on the request of a party or parties. This can be done under Section 2 of the Partition Act. The request from the shareholders for sale of property does not have to be in the nature of a formal prayer but if the words employed simply denote it, that itself is enough. If the request thus made is on behalf of a person under disability the court has enough discretion to see whether the request is for the benefit of the person under disability or not (See The Partition Act, 1893 Section 5). A request of a co-owner essentially means he is ready to convert his share into money.

However the court has enough discretion in formulating a suitable method for arriving at a just and fair division of property, which is beneficial to all the shareholders, based on the facts of the matter.

When a party asks for and the court directs a sale of the property on a request by a party and any other shareholder seeks the court’s permission to buy the share, the court shall order for a valuation of the share/shares and sell the property to the shareholder so requested at the price the court may think fit based on the valuation. When two or more share holders come forward to buy the share the court should consider the higher offer.

When such a request is there it is obligatory on the part of the court to offer to sell the property to the intending shareholder without opting for a different course of action, normally. When no shareholder comes forward to buy the property, the court should proceed for public sale of the property

In any exceptional case wherein a co-owner alone has the financial capacity for purchase the shares and he offers a meagre price leading to patent injustice, the court has enough authority to exercise its inherent powers to sell the property in public auction.

An order of sale by the court can be done either through public auction, under Section 2 of the Partition Act or by bidding process within the shareholders, under Section 3 of the Act. The right of a co-sharer to purchase a property accrues on the date the co-sharer requests the court to sell the property under Section 2 of the Partition Act. The valuation has to be made as on the day. After the shareholder applies for court’s permission to buy the share under Section 3 of the Partition Act, the plaintiff who requested for sale under Section 2 of the Act cannot withdraw the suit under Order 23 Rule 1 of the CPC.

Procedure for sale in public auction

Where a property is to be sold under the provisions of the Partition Act, the procedure which is applicable to sale of a property under a decree or order, as prescribed by the High Court should be followed.

If such rules are not yet formulated by the High Court, the procedure for sale in execution of any decree, applicable under the Order 21 of the CPC has to be followed.

An order for sale to be deemed decree

An order, passed under Section 8 of the Partition Act, for sale of property (coming under its Section 2, 3 or 4) is a final decree in a partition suit. All the proceedings of sale of the property in execution proceedings have to take place in this process also.

An order of actual sale (probably, not the order directing a property to be sold) passed under Section 8 of the Partition Act is an instrument of Partition, as defined in Section 2(15) of the Indian Stamp Act (or its equivalents) and it needs to be stamped in accordance with Article 45 of its Schedule. The processes that take place from the first order (to sell) to the last one (actual sale) is so long and with uncertainties. This seems to be an unsettled issue.

Court can partition a part & sell the other

The court has enough discretion to make a decree for partition of a portion of the property and sale of the reminder part, in a suit for partition (See Section 9 of the Partition Act).

CPC stipulates no application for final decree

The CPC does not contemplate filing an application for final decree. Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed.

It is the duty and function of the court. It does not require a reminder from the litigant. An application for final decree is per se considered to be nothing but an application in a pending suit.

A compromise decree passed at the first instance is final

When a decree passed in terms of a compromise which clearly shows that the parties had obtained separate and exclusive possession of properties allotted to their respective shares, then there is nothing left to be done in the future.  Such a partition decree is not a preliminary decree but a final one. The Supreme Court says the decree, which embodies such a compromise as per Order 20 Rule 18 of the CPC, is a final decree.

If the rights of the parties are finally determined and no further inquiry remains to be held for completing the proceedings in partition, then nothing in law prevents the court from passing a final decree, at the very first instance itself.

Parties can sell the property pending the suit

The co-owners of a property can jointly execute a sale deed, get it registered, and transfer their rights, title and interests in favour of a third party, each receiving directly from the purchaser the consideration proportionate to their respective share.

Though the document of sale transferring the title needs to be stamped and registered, as it is a sale deed, it cannot be treated as an Instrument of Partition. Such a sale can be done outside the court process as well, even though the court has passed a preliminary decree, in which the proportion of shares of the parties is declared.

No limitation applicable to a final decree

Every application which seeks for a right, remedy or relief in a cause of action from a civil court will be governed by the law of limitation. Any suit instituted after the period of limitation prescribed in the Schedule of the Limitation Act, 1963 shall be dismissed. The First Division of the limitation act is for suits; the Second Division is for Appeals; the Third Division is for Applications. The Third Division of the Schedule meant for Applications does not contain any Article prescribing the limitation period for an application for Final Decree in a partition suit.

Therefore the Limitation Act, 1963 would not apply to such an application for final decree, which seeks no fresh prayer for relief. The application is nothing but a mere reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit. Such an application is not governed by the limitation act.

Judgements for additional reading

  1. Shub Karan Bubna@Shub Karan Prasad Bubna v Sita Saran Bubna : (2009) 9 SCC 689
  2. Racha Konda Venkat Rao v Satya Bai : (2003) 7 SCC 452
  3. Bimal Kumar & Anr v Shakuntala Debi : AIR 2012 SC 1586
  4. R Ramamurthi Iyer v Raja V Rajeswara Rao : (1972) 2 SCC 721
  5. Rani Aloka Dudhoria v Goutam Dudhoria : (2009) 13 SCC 569
  6. Malati Ramachnadra Raut v Mahadevo Vasudeo Joshi : AIR 1991 SC 700

 

K Rajasekharan 
on 05 August 2019
Published in Civil Law
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