In a suit for the partition of a joint property filed by one co-owner, the other co-owners, even if included as respondents, are entitled to their respective shares with no need to file a formal counterclaim.
In the eyes of the law, every party to a partition suit—whether they are the petitioner or the respondent—is technically considered a “plaintiff.”
The court is legally obligated to determine and divide the entire property among all stakeholders, rather than focusing solely on the share of the person who initiated the litigation.
Legal Principles Governing Partition
Equal Standing of Parties: Once a partition suit is instituted, the court’s primary duty is to determine the shares of all co-owners. It then partitions the property, assigning specific, divided portions to everyone entitled to a share.
No Requirement for Counterclaim: Because the objective of the suit is the division of the entire joint property, a defendant does not need to file a counterclaim to assert their rights. As long as they prove their ownership or coparcenary interest, the court will divide the property by “metes and bounds” to ensure they receive their rightful share.
The Two-Step Decree Process: 1. Preliminary Decree: Defines the specific percentage or share each party is entitled to. 2. Final Decree: Physically separates the property into distinct portions, disposing of the matter entirely.
A Continuing Cause of Action: The right to seek partition is a continuing right. If, for any reason, a co-owner’s share is not physically separated in the initial suit, the cause of action survives. They remain entitled to initiate a fresh partition suit later, provided the property was not previously divided by metes and bounds.
What Should a Defendant Practically Do in a Partition Suit?
If you have been named as a Defendant in a partition suit, do not panic. Since you are treated as a “plaintiff” for the purpose of claiming your share, you should follow these steps:
File a Written Statement: Instead of a counterclaim, file a Written Statement (WS). In this document, you should clearly admit or deny the shares mentioned by the Plaintiff and state exactly what portion of the property you claim.
Request a Share in the Preliminary Decree: Expressly pray to the court that your share be identified and separated.
Participate in the Commission Work: Once the court appoints a Commission to inspect the property, ensure you are present. This is the stage where “metes and bounds” (physical boundaries) are decided.
Pay the Requisite Court Fee: While you don’t need a counterclaim, to get your separate share in the final decree, you will eventually be required to pay the court fee proportionate to your share.
In Conclusion
If “A” sues “B” for partition, the court will partition the property for both parties. “B” does not need to file a counterclaim; they simply need to appear, verify their interest, and request that their share be separated in the final decree.
