In the case of Raichand v. Dattatrya [1], it was stated that “the word property in its most comprehensive sense includes all legal rights of a person except his personal rights, which constitute his status or personal condition”.
The Hon’ble Supreme Court of India in the case of R.C. Cooper vs. Union of India [2] interpreted the concept of Property. In this case, the Court observed that the term property includes both corporeal things such as land, furniture and incorporeal things such as copyrights and patents.
In India, there are various laws that deal with property in India. The famous laws are the Transfer of Property Act, 1882, Partition Act, Indian Succession Act, etc. Let's talk about these laws in brief and how they govern the property partition in India.
According to Black’s Law dictionary, Partition means the dividing of lands held by Joint tenants, coparceners, or tenants in common, into distinct portions, so that they may hold them in severalty. It is a division of real or personal property between co-owners or co-proprietors.
In India, there are various laws that deal with property in India as follows:
Under the Partition Act, in case of a suit for partition, if it appears to the Court that the partition of the property cannot reasonably happen or sale of the property is more beneficial, then the Court may, on the request of the shareholders interested, direct the sale of the property and distribution of proceeds.
The Act provides that any other shareholder may ask for leave to buy the shares of the parties and the Court may thereafter, offer a valuation and shall sell the property to the applicant.
The Act contains detailed provisions as to what will happen when there is a disagreement between two shareholders.
The provisions of the Act also deal with the rights of the member of the family to purchase the share of the stranger ‘suing’ for partition.
Section 9 of the Act gives power to the Court to distribute the property equally and make the sale of reminder property and to distribute the proceeds.
Under the 86th Law Commission report on Partition Act, 1893, various suggestions have been made to amend the Act as there are gaps in the Act but the amendment is yet to be made.
The Indian Succession Act deals with two kinds of succession: testamentary succession and intestate succession. Testamentary succession is where a person makes a written document called ‘Will’ as to whom his property will go after his death. In case there is no such written document, the properties of the deceased would be distributed according to his religious law and this is known as Intestate Succession.
In case there is no personal law applicable to the person, the Indian Succession Act would apply. Likewise, the Indian Succession Act is applicable to Christians for both kinds of successions whereas in the case of Buddhists, only the Testamentary Succession laws are applicable as per the Indian Succession Act.
In the case of Christianity, the heirs’ religion is immaterial but the person who is dead must be a Christian on the date of his death. Adding to this, the adopted child will not have the same right as the biological child.
Hindu Succession Act governs the Hindus as the name suggests. According to the Act, the person who converts into any other religion can still claim his share in the ancestral property. But this was not the situation earlier. Previously, if any person renounced the Hindu religion or converted into another religion, he could not claim his right in the ancestral property but the change was brought through the Caste Disability Removal Act and therefore, now such persons under-protected under Law.
In regard to the descendants of the converted person, they do not have the right over the ancestral property unless they were Hindus at the time when the succession opened.
In the case of Shabana Khan v. D.B. Sulochana and Ors.,[6] it was held that the converted person can still claim his right over of the ancestral property but the child of the converted person cannot.
The Muslim Personal Law (Shariat) Application Act applies in the case where both the parties are Muslims. Even if the son has converted into another religion, he is the biological son who has a right to claim over the ancestral property. The act also states that if the child is born out of wedlock, he has the right to claim over the ancestral property.
There are two types of properties that can be partitioned as per the Property Partition Laws in India:
1. Self-Acquired Property
Self-acquired property is the property that a person acquires with his own hard-earned money and is not inherited by his forefathers. Also, any property acquired by gift or will is also considered as a Self-Acquired Property.
Self-Acquired property cannot be partitioned during the lifetime of the person who has acquired it. The person who has acquired the property can make a Will during his lifetime as to whom he wants to give his property to. If the owner of the property dies without leaving a will, the property is passed onto his Class 1 heirs.
2. Ancestral property
Any property which is acquired by a person’s forefathers is termed as ancestral property. Such a property must be four generations old.
A person who is born in that family has a vested interest in the property which means that he has acquired the property by the virtue of his birth in the family and such property can be partitioned.
“The right of compulsory partition is the gift of common law given to all coparceners. This right comes into being not by choice but by God's grace (vested interest). And therefore, such right must be respected,” says Advocate Tanu Khattri.
Following are methods to partition an Ancestral Property:
1. Partition by mutual agreement
Partition of the property by mutual agreement can be done by Partition Deed or Family settlement.
Partition Deed divides the property between the co-owners of the property. This deed is prepared in order to divide the property so that each person gets an absolute title over his own part of the property. The partition deed is executed by the co-owners themselves. This is done by distributing the property according to the share each co-owner is entitled to. This does not mean that the property would be equally divided. The division is according to the law.
Acts governing the Partition by Partition Deed
The partition by Partition Deed is governed by the respective religious acts or Indian Succession Act where there is no special act governing that particular religion. After the Partition Deed is executed, each co-owner becomes the absolute owner of their share of the property and they can dispose of the property as they want it to. This means that they can sell, transfer or gift it to anyone as they want.
The deed must be registered and executed on the stamp paper in a very clear and unambiguous manner, specifying the share each co-owner has been given.
“The object of partition proceedings is to enable those who own property as joint owners, to put an end to it so as to vest in each a sole estate in a specific property or an allotment of the lands,” says Advocate Tanu Khattri.
The property can also be divided by family settlement where the family does not want the Court to be involved, they go for the negotiations and settle the matter. The family settlement deed need not be on stamp paper or be registered. Also, it need not be written but it must be with the complete satisfaction of all the co-owners.
2. Partition through Court
Before filing a partition suit, a legal notice must be served to all the co-owners specifying their interest in the property, their share, and the action to be taken and try to settle the dispute. Even after this, if the dispute is not settled, then a civil suit is filed before the Court.
Limitation Period: The limitation period for filing this suit, according to the Limitation Act, 1963, is twelve years from the date the possession of the defendant becomes adverse to the plaintiff. However, the burden of proving that the suit is barred by time is upon the opposite party.
Court Fee: The Court determines the court fees according to the value of the suit and the court fees must be paid before filing the suit. The fee differs according to the case and also with the respective state jurisdiction.
Time Involved: The time involved in the partition suit can not be ascertained as it purely depends upon the facts of each case and the technicalities involved.
3. Partition through Will Probate
Probate is a copy of the Will certified under the seal of the Court. Probate can be granted only to the executor under the Will as stated under Section 222 of the Indian Succession Act, 1922.
After filing the petition, the Court gives public notice in any leading newspaper to invite any objection. If there is no objection, the Court upon being satisfied considering the evidence, grants probate.
Limitation Period: According to Article 137 of Limitation Act, 1963, the limitation period for filing probate petition is 3 years from the date when the cause of action accrues or the right accrues.
Court Fee: A stipulated Court fee has to be paid depending upon the facts and the state jurisdiction of the case.
Time Involved: There is no specified time which is given under any act as to when the suit must end. It purely depends upon the facts and circumstances of the case and the technicalities involved in it.
When a party or parties claim rights over a piece of land or building and files a case in court, due to a property dispute issue that arose in the family, it is called a Partition Suit.
If the family members are happy to negotiate about the property partition, then one needs to formulate a Partition Deed following the Partition Act, 1893. It is an official document created either by Court Order or through negotiation by the parties. It defines the respective portions of the property that would be claimed by each party.
A deed of partition also needs approval by the Court. This new partition deed must be registered at the office of the Sub-Registrar to give it a legal and binding effect. Next, the party or parties have to get the deed registered and drafted on a stamp paper in a clear and unambiguous manner. It specifies the share of each person and the date of the partition property.
However, if the families still need to settle this in court, they need to file a Suit of Partition in Court, where the case proceedings will take place.
The very first misconception in the mind of the people is that there can be a Will in the case of Ancestral Property which is not true. In cases of Ancestral Property, a person has a vested interest in it, that is, he gets the right in the property by the birth of him in that family. This kind of property is partitioned according to the laws of that particular religion. A Will cannot be made in such cases, Will is made in cases of Self-Acquired Property
The second misconception borne in people is that the nominee becomes the owner of the property once it is transferred to him. However, this is not the case. A nominee is only the trustee of the property. He has to do the work which the nominator could not do. He is just appointed to do the work on behalf of the nominator, who is now deceased.
What are the grounds to reopen a partition?
A partition can be nullified and reopened in the case of fraud, a child in the womb, adopted child, disqualified coparcener, a child conceived and born after partition, absentee coparcener, minor coparcener, or omission of properties.
How long does the process for partition suit take?
Since it is a standard civil case, the court will usually process it within 1 year to 18 months.
Do you have to register a partition deed?
Yes. One is required to register the partition deed at the office of the sub-registrar. The registration fee is Rs 500.
Who is allowed to file a partition suit?
Anyone tied to the property by birthright can file a partition suit in case of conflicts.
What are the limitations to filing a partition suit?
After filing a partition suit, the limitation can run from the date of registration of the document.
[1] Raichand v. Dattatrya, AIR 1964 Bom. 344.
[2] R.C. Cooper vs. Union of India, AIR 1970 SC 564.
[3] The Partition Act, 1893, No. 4, Acts of the Parliament, 1893, http://legislative.gov.in/sites/default/files/A1893-04.pdf, last visited 15/01/2020 at 8:04 PM.
[4] The Indian Succession Act, 1925, No. 39, Acts of the Parliament, 1925, http://legislative.gov.in/sites/default/files/A1925-39.pdf, last visited 15/01/2020 at 7:59 PM.
[5] Hindu Succession Act, 1956, No. 30, Acts of the Parliament, 1956, https://revenue.tripura.gov.in/sites/default/files/hindu-succession-act-1956.pdf, last visited 15/01/2020 at 8:01P M.
[6] Shabana Khan v. D.B. Sulochana and Ors., 2008 (2) ALD 818.
[7] Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of the Parliament, http://legislative.gov.in/sites/default/files/A1937-26.pdf, last visited 15/01/2020 at 8:07 PM.
