A Practitioner’s Note on Partition Suits under the Partition Act, 1893 and the Code of Civil Procedure, 1908
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 their eligible shares.
Partition, in another sense, means giving a person the monetary value of his share in the joint properties. A valid partition converts the joint title of the parties into the exclusive title of the shareholders. Similarly, it converts the joint possession of the co-owners into the exclusive possession of each shareholder.
In other words, partition is a redistribution or adjustment of pre-existing rights among co-owners or 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, co-ownership is converted into individual ownership.
A partition of property can be effected only 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 provisions of the CPC relevant to partition of property are Section 54, Order 20 Rule 18, and Order 26 Rules 13 and 14. The court issues a commission to effect the partition under Order 26 Rules 13 and 14 of the CPC.
Chapter VI-C of the Civil Rules of Practice, Kerala provides the special procedure relating to partition suits in the State of Kerala. Other States have equivalent rules.
General Matters Relating to a 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 a partition suit, all persons entitled to shares must join as parties. If any part of the joint property has already been alienated, the person to whom the property is alienated (the alienee) must be made a party to the suit. The plaint must state the relationship of the parties and the share to which the plaintiff is entitled, along with other details of the property, including outstanding debts and liabilities.
Partition or Separation of Shares
Partition is effected for the separation of shares among the co-sharers of a property, for the 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 are separated, while the others continue to hold the remaining property jointly, without division by metes and bounds. Separation of a share is thus a partial partition. When all the co-owners are separated, it amounts to a complete partition.
For example, where four brothers who jointly own a property divide it among themselves by metes and bounds, it is a partition. But if one brother seeks his share separated while the other three continue to hold the property jointly, there is only a separation of the share of that one brother.
Preliminary, Final and Composite Decrees
In a partition suit, the court passes one of three kinds of decrees to finally settle the matter: a preliminary decree, a composite decree (partly preliminary and partly final), and a final decree.
The purpose of a suit for partition or separation of a share is twofold: first, the declaration of the plaintiff’s share in the suit properties under the preliminary decree; and second, the division of that share by metes and bounds, which takes place under the final decree. In some cases, the property is put up for sale and the proceeds shared among the shareholders, which may also be termed a final decree.
In the final decree, the court directs the parties to deposit in 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 is prepared on non-judicial stamp paper of the requisite value. The decree is retained by the court, and copies are furnished to the parties. A copy of the decree is sent to the Sub-Registrar of the place where the property is situated, for filing in Book No. 1 of that office. The final decree in a partition suit, forming part of the registration records, is therefore treated as a registered document.
In a composite decree, both actions take place in one go — it is, in effect, a two-in-one process.
Issue of Preliminary Decree
In a partition suit, if the court cannot make a division of the property by metes and bounds forthwith, without further inquiry, the court initially passes a preliminary decree.
A preliminary decree for partition identifies the properties to be subjected to partition, and defines and declares the shares and rights of the parties. The prayer relating to actual division by metes and bounds and allotment is left to be completed in 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 or plots — or movable properties, where the court can conveniently, and without further inquiry, make the division without the assistance of a Commissioner, or where the parties agree upon the manner of division, the court passes a composite decree comprising the preliminary decree declaring the rights of the several parties and also a final decree dividing the suit properties by metes and bounds, in one judgment.
The composite decree is thus partly preliminary and partly final. It declares the proportion of shares and divides the property, thereby settling the partition once and for all.
Court Must Refer Separation to the Collector or 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 on the manner of division. In the normal course, the court performs this duty as a continuation of the preliminary decree.
Sometimes the matter remains dormant for want of diligence, and is revived only when an application is made by one 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 an 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 the 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 regarding the shares of the various parties, and to deliver the respective portions to them, in accordance with Section 54 of the CPC.
If the Collector acts appropriately on the decree, the matter does not return to the court, and the court need not interfere in the partition, except to attend to any complaint of an affected third party.
While effecting the partition, the Collector is bound by the declaration of the rights of the parties made in the preliminary decree. The Court, however, has no power to fetter the discretion of the Collector conferred under the law. That said, in regard to any issue which the Collector is not competent to decide, the Civil Court retains the power to dispose of it.
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 divide the estate in the manner he considers best, keeping in mind the nature of the land as a revenue-paying entity and the stipulations of the decree.
The object of this provision is twofold:
- the revenue authorities are more conversant with, and better equipped to deal with, such matters than a civil court; and
- the interest of the government in the revenue-paying estate is better safeguarded by the Collector than by the civil court.
Issue of Commission to Make Partition in Other Cases
In cases of immovable property other than those mentioned above (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 the various aspects and conditions of the property to be divided, and to effect partition or separation of the property according to the rights declared by the court in the preliminary decree.
The Commissioner, after necessary inquiry, physically examines and divides the property into the required number of shares and allots such shares to the parties. If so authorised by the court’s order, the Commissioner may award such amount of money as is 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 the various possibilities of division.
The Commissioner then prepares a report apportioning each share by metes and bounds in a distinguishing manner, and submits it to the court. If the commission consists of more than one person and they cannot agree, the commissioners may send separate reports to the court.
Final Decree Proceedings in Partition
On receipt of the commission’s report, and after hearing objections to it, 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 further to be done. A decree is final when the court completely disposes of the suit and no further adjudication remains.
In the final decree, the court declares separation of shares by metes and bounds, if possible, or takes other measures to enable the parties to receive the proceeds from the sale of the property.
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 shareholder or 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 with a sale only on the request of a party or parties, under Section 2 of the Partition Act. The request need not be in the nature of a formal prayer; if the words employed simply denote such a request, that is sufficient. Where the request is made on behalf of a person under disability, the court has sufficient discretion to determine whether the request is for that person’s benefit (see Section 5 of the Partition Act, 1893). A request by a co-owner essentially signifies readiness to convert his share into money.
The court nonetheless retains sufficient discretion to formulate a suitable method for arriving at a just and fair division of the property, beneficial to all the shareholders, based on the facts of the matter.
Where a party requests, and the court directs, a sale of the property, and any other shareholder seeks the court’s permission to buy that share, the court must order a valuation of the share(s) and sell the property to the shareholder so requesting, at the price the court considers fit, based on the valuation. Where two or more shareholders come forward to buy the share, the court should accept the higher offer.
Where such a request is made, the court is ordinarily obliged to offer the property for sale to the intending shareholder, without opting for a different course of action. Where no shareholder comes forward to buy the property, the court should proceed with a public sale of the property.
In an exceptional case where a co-owner alone has the financial capacity to purchase the shares and offers a meagre price leading to patent injustice, the court has sufficient authority to exercise its inherent powers to sell the property by public auction.
An order of sale by the court may be made either through public auction, under Section 2 of the Partition Act, or by a bidding process among the shareholders, under Section 3 of the Act. The right of a co-sharer to purchase a property accrues on the date on which the co-sharer requests the court to sell the property under Section 2 of the Partition Act, and valuation must be made as on that date. After a shareholder applies for the court’s permission to buy the share under Section 3 of the Partition Act, the plaintiff who requested the sale under Section 2 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 applicable to the sale of property under a decree or order, as prescribed by the High Court, must be followed.
If such rules have not yet been formulated by the High Court, the procedure for sale in execution of a decree, applicable under Order 21 of the CPC, must be followed.
An Order for Sale Deemed a Decree
An order passed under Section 8 of the Partition Act for the sale of property (falling under Sections 2, 3, or 4) is a final decree in a partition suit. All proceedings for the sale of the property must take place, as in execution proceedings, within this process as well.
An order of actual sale (as distinct from the order directing that the property 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 the equivalent State enactments), and must be stamped in accordance with Article 45 of its Schedule. The process from the first order (to sell) to the last (actual sale) is a lengthy one, attended with uncertainties, and appears to remain an unsettled area of law.
Court Can Partition Part of the Property and Sell the Rest
The court has sufficient discretion to pass a decree for partition of a portion of the property and sale of the remaining part, in a suit for partition (see Section 9 of the Partition Act).
CPC Does Not Require an Application for a Final Decree
The CPC does not contemplate the filing of a formal application for a final decree. Therefore, once a preliminary decree is passed in a partition suit, the proceedings must be continued by fixing dates for further steps until a final decree is passed.
This is the duty and function of the court, and does not require a reminder from the litigant. An application for a final decree is, per se, considered to be nothing more than an application in the pending suit.
A Compromise Decree Passed at the First Instance is Final
Where a decree passed in terms of a compromise clearly shows that the parties have obtained separate and exclusive possession of the properties allotted to their respective shares, there is nothing left to be done in future. Such a decree is not a preliminary decree but a final one. The Supreme Court has held that a decree embodying 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 partition proceedings, nothing in law prevents the court from passing a final decree at the very first instance.
Parties May Sell the Property Pending the Suit
The co-owners of a property may jointly execute a sale deed, have it registered, and transfer their rights, title, and interest in favour of a third party, each receiving directly from the purchaser the consideration proportionate to his or her respective share.
Although the document of sale transferring title must be stamped and registered, being a sale deed, it cannot be treated as an Instrument of Partition. Such a sale may be effected outside the court process even where the court has passed a preliminary decree declaring the proportion of shares of the parties.
No Limitation Applies to a Final Decree
Every application seeking a right, remedy, or relief arising from a cause of action before a civil court is governed by the law of limitation. Any suit instituted after the period of limitation prescribed in the Schedule to the Limitation Act, 1963, is liable to be dismissed. The First Division of the Limitation Act pertains to suits; the Second Division to appeals; and the Third Division to applications. The Third Division of the Schedule, meant for applications, contains no article prescribing a limitation period for an application for a final decree in a partition suit.
The Limitation Act, 1963, therefore does not apply to such an application for a final decree, which seeks no fresh relief. Such an application is merely a reminder to the court to perform its duty — to appoint a Commissioner, obtain a report, and draw up a final decree in the pending suit — and is accordingly not governed by the Limitation Act.
Additional Reading
- Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna, (2009) 9 SCC 689
- Rachakonda Venkat Rao v. R. Satya Bai, (2003) 7 SCC 452
- Bimal Kumar & Anr. v. Shakuntala Debi, AIR 2012 SC 1586
- R. Ramamurthi Iyer v. Raja V. Rajeswara Rao, AIR 1973 SC 643
- Rani Aloka Dudhoria v. Goutam Dudhoria, (2009) 13 SCC 569
- Malati Ramchandra Raut v. Mahadevo Vasudeo Joshi, AIR 1991 SC 700
Note: This article is intended for general informational purposes and does not constitute legal advice. Readers should consult a qualified advocate for guidance on specific facts, and verify current citations before relying on them in pleadings.
