My siblings will not divide our family property. How does a partition work?

A partition suit is one of the longest-running kinds of civil litigation in India, which is why every honest lawyer will push you toward a settlement first.

The cheaper routes, tried first

• Partition deed. All co-owners agree on the division and execute a registered deed. Stamp duty is payable but it is far lower than the cost and delay of litigation.
• Family settlement or arrangement. Courts look on these favourably as a way of preserving family peace. A memorandum that merely records a prior oral arrangement has been held not to require registration, but a document that effects the division does. Get this right, because it is a frequent source of later disputes.
• Mediation, including through the court-annexed mediation centre, which can produce a settlement recorded as a decree.

The suit

1. Plaint before the civil court with pecuniary jurisdiction, describing every item of property, the parties, and the share claimed. All co-owners must be parties.
2. Preliminary decree declaring the shares of each party. This is the stage that decides entitlement.
3. Final decree proceedings, in which the property is actually divided by metes and bounds. The court usually appoints a commissioner to inspect, measure and propose a division, and may order allotment by lots.
4. Where the property cannot be divided fairly, the court may order a sale and division of proceeds.

Points that decide these cases

• Whether the property is ancestral or self-acquired, which decides who has a birthright
• Whether an earlier partition already happened, and whether it was oral, recorded, or acted upon
• Possession and who has been in enjoyment of which portion, which often drives the final allotment
• Whether any co-owner has already received their share, which is adjusted in the division