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Property Partition Laws in India

The Partition Act (1893) gives one the authority to claim rights over his/her shares. The article sheds light on laws that govern property division in India and the measures one can take to deal with partition disputes smoothly and effectively.
Written by:
Antim Amlan
Published on
19th Sep, 2019

Partition Deed of a property ensures that the execution of partition provides each member of the family with his/her fair share. According to the Property Law in India, when one does not follow the property partition rules amicably or come to a settlement, the case can be taken to court to resolve disputes.

The law also states that a property can be inherited up to four generations of male lineage. However, until the Hindu Succession Act, 1956 was amended in 2005, the law for property division in India was different for both sons and daughters.

Today, Property Law in India states that every girl child, whether married or unmarried, will be considered a member of her father’s HUF (Hindu Undivided Family). She could also be appointed as the ‘karta’ or manager of her father’s HUF property.

 

The distribution between Brothers and Sisters

Gone are the days when joint families sought to keep their family members together. They ensured that everything was shared equally between brothers and sisters. Today, the need for partition of property among family members has become a pressing matter. Due to indecision by the family members, partition execution requires a steady and unbiased hand of the law in order to rule out a fair settlement. 

What is Partition of Property under Hindu Law?

The Hindu Succession Act, 1956 governs the partition of property within a Hindu Joint Family. Whereas the Hindu Undivided Family (HUF) and the Hindu Partition Act of Property, 1892 governs the division of jointly-owned property by two or more co-owners. This process begins with the filing of a Partition Suit in India. Under the above-mentioned property law in India, you will find that whenever we decide to divide property;
  • It is either divided on mutual agreement between parties, or
  • In the case of a dispute, the issue will be taken up in court.

While in court, the judge considers the claims and their rights on the property so as to pass an order giving each shareholder the deserving portion, as per The Partition Act, 1893.

The partition law for a joint family in India states that an ancestral property can be divided on the basis of making a family partition agreement ie., the Partition Deed. This is subject to the personal laws of inheritance where Hindus, Muslims, and Christians have different standings under family property division. The people who have a share in the ancestral property, are a direct lineal descendant of a common ancestor up to three degrees next to the common male ancestor.

The jointly owned ancestral property can be divided following the Property Division Law in India or you can reach a conclusion of dividing property through negotiation. People who have a portion in the ancestral property are called coparceners. In other words, they are co-owners of the property.

A coparcenary includes the eldest member of a family and three generations, whereas a member of the coparcenary can later sell their portion to a third party. Also, a coparcener can file a suit asking partition action of the coparcenary property, by filing a deed of partition between co-owners, but not a member.

Today, even daughters can act as coparceners and demand partition of a house, business, or property that belonged to their father. Property law of partition in India also states that an ancestral property division happens either by a family settlement deed or by filing a suit of partition in court.

Also to note, self-acquired property in India cannot be divided during the lifetime of the person who acquired it, but self-acquired property becomes a part of the ancestral property after the death of the owner. However, the person can grant the self-acquired property through his/her will to any person he/she wants.

What does the Partition Act involve?

Firstly, under property law in India, the division of property happens when two or more people have joint ownership over any immovable ancestral or parental property like a house or a plot of land where either of the parties or both want to own their share of property separately. Once the families decide to separately claim their portions in the disputed property, a Partition Suit is filed.

What is a Partition Suit?

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 which 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 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.

 

External Links:

[1] Hindu Succession Act, 1956 - An Act to amend and codify the law relating to intestate succession among Hindus.

[2] Partition Act, 1893 - An Act to amend the Law relating to Partition.

 

FAQs:

What are the grounds to reopen a partition?

A partition can be nullified and reopened in the case of fraud, child in womb, adopted child, disqualified coparcener, 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. 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.