Family Property Partition in India
To get your ancestral property in India partitioned as per the property laws in India, you need to be aware of the certain rights and laws. This will help you in getting your rightful share after finalizing the deed of partition in Court.
By Apeksha Pandita in Property Law
Oct. 17, 2018, 2:44 p.m.
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Often when you are looking for a property in India, you go through a list of properties and still don’t find the one so easily.
Property laws in India state that a property can be inherited up to four generations of male lineage, which means father, grandfather, great-grandfather, and great-great-grandfather and that is called ancestral property.
Also, under Indian law on property, none should divide property till the fourth generation upwards. However, until the Hindu Succession Act, 1956 was amended in 2005, the law of property in India for daughters and sons was different.
Like in earlier times, the son had the complete power over the father’s property as per property division law, whereas, the daughters had right only till they got married. After marriage, a daughter was considered a part of her husband’s family.
Once this partition agreement was altered, then every daughter, whether she was married or unmarried, was considered a member of her father’s (Hindu Undivided Family) HUF. She could then be appointed as the ‘karta’ or manager of her father’s HUF property even.
Ancestral property includes self-acquired property too and any property divided through a partition deed, family arrangement, etc. loses its ancestral character.
Consult: Property Law Lawyers in India
Indian Law in Property has been witnessing a rise in the Property Disputes in Family
How often do you hear about feuds and family partition disputes nowadays?
Enough for sure!
Never ending cases seem to keep on appearing and reappearing in court discussing the property law in India. Gone are the days when joint families sought to keep the members together and ensured that everything was shared equally between brothers and sisters.
Today, the partition of property among family members has become a pressing matter.
Since property dispute cases have become one of the ugliest legal issues in India, however resorting to daily drama and indecision from the family members, the partition of property requires a legal eye and moreover a steady hand of the law to make sure there is a settlement since reaching that point is very difficult.
Suggested Read: How to Obtain a Legal Heir Certificate in India?
Hindu Succession Act 1956 governs the partition in Hindu Joint Family. Whereas Hindu Undivided Family (HUF) and the Property Act 1892 governs the division of property of jointly-owned property by two or more co-owners. This process begins with the filing of a partition suit.
Under the above-mentioned law of property in India, you will find that whenever we decide to divide property, it is either mutually negotiated on how it shall be done, or there is a dispute which needs to be taken to the court. Next, the court considers the claims and their rights on the property, to pass an order giving each shareholder a deserving portion, as per the partition act in India.
To understand the law regarding property partition in India, let’s begin with knowing which property can be partitioned?
One of the known facts remains that everyone at the time of their birth automatically gets a share in the joint family property. However, a person has a share in the property up to three degrees of ancestors (i.e. his father, grandfather, and great-grandfather). Such property is termed as ancestral property.
The property 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 which 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. A coparcenary includes the eldest member of a family and three generations, where 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 but not a member. Today, even a daughter, as a coparcener, can demand the partition of a house or business or any property that belonged to her father.
Property laws in India also state that an ancestral property can be divided either by family settlement deed or by filing a suit of partition in the Court
Top Read: Women Share in Ancestral Property
However, the parties find it hard to complete these problems by themselves in the absence of expert guidance, examples, and legal help. Settlement of issues about the partition property inherited or jointly owned by two or more persons sometimes involve a lot of legal issues.
To claim a share in the property, there are several modes of dividing property that is jointly-owned between the co-owners, depending upon the fact whether the property is divided with mutual consent of all the co-owners, or is it divided on dispute/demand by one or more co-owners.
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 on the death of such person. However, the person can grant the self-acquired property through his/her will to any person he/she wants.
What all does the Act of Partition involve?
Firstly, in India, division of property happens when two or more people have a joint ownership in some immovable ancestral or parental property like a house or a plot or a land, etc. in which either of the persons or both of them want to own their share of property separately, then arises the need for the partition of property.
Once the families have decided to separately claim their portions in the disputed property, a partition suit is filed, which means a case filed in the court by a party or parties claiming rights over a piece of land or building in the essence of which the property dispute in family arose.
If the family members are happily ready to negotiate about the property partition, then a Partition deed is formulated. Defining the respective portions of the property to each party claiming their right over it, a deed of partition is be approved by the Court.
It is an official document created either by the order of the Court or through the negotiation by the parties. This new partition deed must be registered at the office of the Sub-Registrar to give it a legal and binding effect.
It must be registered and executed on a stamp paper in a clear and unambiguous manner, specifying the share of each person and the date of partition property. However, if the families still need to settle this in the court, then a suit of partition is filed in Court, where the case proceedings take place.
Process for Filing a suit of Partition
Before a court case is filed for partition in India, a legal notice must be sent to the other co-owners regarding family property partition as per the Indian law on property. The legal notice for partition suits must include the shares of each co-owner, details of the property in dispute and the action required to be taken. Also, if the co-owners do not respond to the legal notice or send an insufficient reply, even then partition suits can be filed.
A partition suit is filed in the court which has jurisdiction over the area in which the property is located. The court first determines whether the person who has filed the suit has a rightful claim on the property or not.
The court may order for an inquiry to be conducted and pass a preliminary or initial decision for appointment of a Commissioner who evaluates the said property in dispute and submits a report. The court addresses the inspection report, determining the share of each co-owner on the basis of this report and divide a property according to each co-owner’s share.
This invites more discussion till either, court presents a negotiation point or both the parties themselves reach a conclusion for settling the family partition disputes. Once the share is established and no additional inquiry is needed, the court may grant individual ownership of the respective portions of the property to the co-owners.
Property settlement means reaching a conclusion by the parties regarding the property dispute through court settlement or mutual negotiation. The official document of such settlement is called property settlement deed, which must be duly signed by both the parties with the seal of the authority.
Once all the matter is discussed in court and all parties are convinced of its order, the case of property partition reaches its end of settlement by creating a deed of partition.
As per the partition act, all the claimants do not necessarily require to be present before the court. Considering their disability to appear, the court may allow them to join with any of the appearing parties or direct the sale of a property accordingly.
Further Read: Sale Deed in India
Who can help in the partition process of property in India?
It’s not so easy as it sounds though.
Even with a good property lawyer by your side, if you think handling the partition of a house, plot or land will be easy, then you are mistaken. You need to have someone skilled in the articulation of legal facts and someone who is experienced in the field of dealing with property issues in a joint family.
Reaching a point of settlement in property dispute cases is tough. However, families do have a way around it.
A family arrangement deed can help in this as it’s an agreement between members of a family, where no court disputes are involved and the family property is divided in a peaceful manner.
A family settlement agreement format is drawn in the same format of a partition deed, but it does not require registration and stamping. It must be signed by all the family members voluntarily, without any fraud, coercion or pressure.
There is no strict family settlement agreement format that has to be followed, but it needs to be drafted in a written document after the compromise or mutual understanding between all the family members is established.
In all this humdrum of partition action, it can get really difficult and tricky to manage the emotional turbulence at home between family members. It is equally difficult to know for a layman on how the procedures for partition of land operate under the Indian law in a property.
Thus when you are stuck in such a situation, it is best to consult a lawyer who is expert in handling partition of land and can guide you well on the legal terms and processes.
This is where MyAdvo brings in the experience and the expertise for you.