SUIT FOR PARTITION
AMONG CO-OWNERS
1. Law
Joint Property or Co-owners are those persons who are not having jointness
in the title out of any personal law (such as Hindu law or Muslim laws, etc.)
but otherwise, they have acquired the property jointly i.e.
1.1 Who purchased the property jointly without being related as a family.
1.2 The property is acquired jointly by other modes such as Will, Gift or
Exchange
1.3 The property is acquired with other co-owner out of Mortgage, etc.
1.4 The property is acquired jointly as partners of the partnership firm.
The said joint property makes the more than one person co-owner
proportionate to their contribution to the title. The possession is also
joint or common.
When the question of separation occurs amongst the said joint owners
or co-owners, Transfer of Property Act and Specific Relief Act provide
the remedy for partition.
2. Basic Principles
2.1 Co-owners are having share or interest in common property
proportionate to the consideration paid
2.2 Co-owners are also entitled to transfer their undivided share or
interest
2.3 When several co-owners of an immovable property without specifying
their share transfers for consideration, such transfer takes place as per
the value of shares of each co-owner.
2.4 A co-owner has an interest in the whole property and in every parcel of
it till it is not separated.
2.5 Possession of a joint property by one co-owner is in the eye of the law,
possession of all even if all but one is out of possession.
2.6 A mere occupation of property or occupation of a larger portion does
not necessarily amount to ouster as the possession of one is deemed to
be on behalf of all.
2.7 Unless by the clear hostile attitude the right of co-owner is denied
passage of time for claiming separate possession does not commence.
2.8 Where a co-owner is in possession of separate parcels under an
arrangement consented by other co-owners, it is not open to anyone
disturbing the arrangement without the consent of other, except by
filing a suit for partition.
2.9 Suit for partition will be filed with the declaration of shares along with
the claim of separate possession.
2.10 Source of title and possession will be the basis for adjudicating the
shares of co-owners.
2.11 Unless otherwise agreed between co-owners, all liabilities upon the
property will be treated as a common liability and will be shared by co-
owners as per their respective shares.
3. Relevant Provisions
3.1 The Transfer of Property Act, 1882 (Sections 44 to 48)
3.2 The Specific Relief Act, 1963
3.3 The Partition Act, 1893
3.4 The Civil Procedure Code, 1908
(Section- 54, Order - 10, Rule.18, and 0rder - 26, Rule 13, 14)
3.5 The Limitation Act, 1963
Article 65. For possession of immovable property or any interest
therein based on the title
4. Jurisdiction
4.1 Territorial Jurisdiction:
Section 16(b) of the Code of Civil Procedure provides, that subject to the
pecuniary or other limitations prescribed by any law, suits for the
partition of immovable property shall be instituted in the Court within the
local limits of whose jurisdiction the property is situated.
Note:
Before beginning the process of bringing a case, the territorial jurisdiction
must be considered first, then the pecuniary jurisdiction.
5. Court Fees
Under Section 6 clause (vii) of The Maharashtra Court-fees Act, 1959
6. Limitation
Co-owner in joint possession when the hostile activity of one co-
owner to deny or disturb the right of another co-owner, or
when voluntarily decided to separate, suit to be filed in 12 years
period of limitation for such cause of action.
7. Relief
What relief can be sought ?” here are some mentioned below.
a) To partition the suit property by metes and bounds and hand over
separate possession of the plaintiff's share in the suit schedule
property.
b) To appoint an Advocate Commissioner to divide the suit schedule
property by metes and bounds and put the plaintiff in possession of
his share in the suit property.
c) To direct the Advocate Commissioner to be appointed by this Court
to ascertain the mesne profits from the suit schedule property and
direct the defendants to pay the plaintiffs their share until the
plaintiff's shares are delivered to them.
d) To declare any impugned Deed as null and void.
e) To direct defendants to pay the cost of the suit.
-----------------------xxxxx-----------------xxxxx---------------------xxxxx--------
-----------------------END--------OF--------THE------DOCUMENT-------------
