Partition Suits in Uttarakhand – The Substantive & the Procedural Laws

Lecture Notes in Detail

I have tried to compile all the important points mentioned in the lecture along with citations and references to the various case laws mentioned by Ma’am. I have tried to make these notes as exhaustive as possible but it would be best to first listen to complete lecture and then view the following notes for proper understanding for a suit for Partition.

Part 1 – Concept of Partition

A partition suit is not only for ancestral property but also for Joint family property, Inherited property jointly held and Joint venture properties between different members of a partnership firm.

Hindu Joint Family has 3 kinds of joint properties 

1. Ancestral property – those one inherited from forefathers
2. Coparcenary Property – consists of 3 generation up from the present generation. i.e. grandson, father and grandfather would be 1 Unit of coparcenary property.
3. Joint Family Property – Properties which are owned by family in Unison and enjoyed in Unison.

What is the nature of Property?

This is the most important point that needs to be taken care of in a suit for partition. As depending on the nature of the property its devolution would depend. Whether the property is self acquired property or ancestral property or property acquired by funds generated from Joint family property. Hence, its very important to determine the nature of properties that are to be partitioned.

The case laws that have helped to determine if it’s a self acquired property or acquired from joint family nucleus are-

1. 2018 (16) SCC (645)
2. 2016 (8) SCC (205)
3. 2019 (10) SCC (259)   –  Here, it was held that Burden of Proof is on the party that is claiming that he got property from Ancestral property fund.  Plaintiff has to prove the availability of Joint family nucleus.
4. 2020 (6) SCC (387) – Burden of Proof.

Further, the nature of property also depends upon the how one has pleaded before the court and what evidence you are bringing before the court.

Quantum of Shares –

In partition suits it depends upon the relationship of the parties. Basically, for a male deceased, leaving behind a wife, 2 sons and 1 daughter . Then this property would be divided into 4 equal parts and of them getting 1/4 part each. i.e. Wife 1/4, First son 1/4, 2nd Son 1/4 & daughter 1/4 part. This is a generic overview.

Mesne Profits & Render of Accounts

In a partition suit, one cannot ask for Mesne Profit as any member of a family is never in an unlawful possession of a property and hence question of Mesne Profits does not arise.

What we ask for is Render of Accounts which is mentioned under Order 20 Rule 18 of Civil Procedure Code.

The Rendering Of Accounts can be asked even at the time of Final Decree & o court can reject it on the grounds that it was not asked at the time of framing of the issues.

Defenses for Defendant in a suit for Partition

1. Exclusive Possession of Property – The Defendant can take the plea that he is in exclusive possession of the property which is HOSTILE to the other co-owners & that he has OUSTER all the other co-sharers of the properties.
   1. It is very difficult in court of law to prove OUSTER & hence should be rarely taken into plea unless you have very strong evidence in your favor.
2. Partition Suit is not Maintainable –
   1. That there was an Oral partition which has happened long ago and the properties are equally divided between co-sharers. The evidence can be shown of individual revenue receipts & deeds & bonds.
   2. Division in Notice – Intention to divide the property should be communicated to all other coparceners.
3. Karta Sold Immovable Properties – To fulfil debts, legal liabilities and meeting expense of daughter marriage. A Karta can sell immovable properties of Joint Family to meet these expenses and its legally valid.
   1. To challenge such SALE the limitation period is 3 Years.
   2. If the sale has long happened, ignore it & continue with Partition.
4. Conversion & Disqualification –  If someone has converted to another religion then he is no longer a part of Hindu Family and his share is rendered to naught.

Role of 3rd Party Purchaser of a Partitioned Property

1. All the persons who have purchased property from other coparcener should be included in the suit for Partition.
2. Will they (3rd party purchaser) get any right? – Yes, they will get equitable allotment of that property from Coparcener share.
3. Can a 3rd party purchaser ask for Partition? – YES, he can ask for partition of the property.

Notional Partition

It’s governed by Section 6 r/w Section 8 of Hindu Succession Act.

Its a hypothetical division of property as contrived under law.

Can a Minor Coparcener bring a Suit for Partition?

No, a minor cannot bring a suit for partition of property. But, if the father acts fraudulently or takes away or gives away his share unfairly. Then a minor can bring a suit for partition.

Partial Partition

As the name suggests its a partial partition of property where one keeps certain property in common and divide the remaining property.

2nd Suit for partition maintainable when new properties come to knowledge to any member of the family.

Improvements Done to Joint Family Property

All improvements done to a Joint Family properties are to be enjoyed by all. For example, a father has 1 son and 1 daughter. The girl gets married and moves out. The son starts living with his parents and makes improvement in the family property. This act of his would not make him liable for more share in the joint family and the property would be divided equally among son, daughter and wife.

Whether Oral Partition is recognized after 2005 amendment to Hindu Succession Act?

Oral partition is recognized which happened before 2005 amendment.

Case – Vineeta Sharma vs Rakesh Sharma on 11 August, 2020

1. The above is a very important case law related to Section 6 of Hindu Succession Act and is a must read for advocates practicing partition suits.

Family Arrangement – What is its status?

1. Whether it requires Registration?- Yes, if it brings about division of properties.
2. Unregistered Family Arrangement – can be received as corroborative evidence, to check if it was implemented.

Case Laws –

 2019 (6) SCC (409)  – if Family Arrangement results in division it requires registration u/s 17 & 49 of Registration Act

2018 (14) SCC (814) –  it can be relied as collateral status to check if it was implemented

3. If the family arrangement results in new SHARER then registration is required.
4. Compromise is reached – No registration is required.

Right of a Father to bring Partial Partition

Yes, he is allowed. Case – 1983 (2) SCC (155)

A property which is lost to family and comes back?

How it is brought back – If it is brought back by own income of a family member then it’s his self acquired property. Case – 2019 (7) SCC (193)

Release for Share

Suppose someone from the family who is well off says I don’t want my share. What should be done?

1. Let the release be for some consideration or by settlement or sale.
2. Such release will be for the benefit of all the other sharers.

Division of Dwelling House

Section 23 of Hindu Succession Act deals with this.

Where the sons are living in the same house this house is called the dwelling house. Previously, daughter could not ask for the division of the dwelling house. However, now a married daughter can seek for the division of the dwelling house.

Case – 2017 (1) SCC (257)

It was held that daughters can ask for her share from the dwelling house for residing. But, cannot disturb the possession of sons and if she wants to sell her share she can do it only to her brothers.

Properties Cannot be divided

Sec 2 of Partition Act –

Where properties cannot be divided they can be brought for SALE.

Case – 20009 (13) SCC (569)

2011 (15) SCC (768)

Principle of OWELTY of Section 2 & 3 of Partition Act

Case Laws – 1957 SCC (577)

2015 (12) SCC (659)

2005 (11) SCC (218)

Preemptive Rights

Case – 2008 (15) SCC (610)

Suit for partition – one sharer sells his portion. Then the limitation to bring the suit is 1 YEAR.

Registration of Final Decree

It is not required. But, if you want you can get it registered.

How to value a suit for Partition?

1. First, plaintiff should always state that they are deemed to in Joint Possession of the properties.
2. Court Fee to be paid u/s 37(2) of Court Fee act
3. Even if a 3^rd party is in possession then also court fee need to be paid U/S 37 (2)
4. Plaint shall define the court fee

Parties to Suit & Appeals

1. All sharers should be made parties in the 1^st
2. In Appeal or 2^nd Appeal or in any proceedings – all sharers should be made parties.
3. Ask for dispense with notice to the respondent who have remained ex party in courts below.
4. Don’t give up or fail to mention any co-sharers. If you do so the entire proceedings would come to a naught.

There is no Limitation for filing a final decree.