Often when you are looking for property in India, you go through a list of properties. But still, you don’t find "the one" so easily.
One comes across so many issues while looking for a suitable property. Sometimes, the issues are more inherent, like dealing with ancestral property partition.
Often division of property in India happens because each family member wants his/her own share.
But in the push and pull of how to divide the land between family, often creates many family property disputes. In such cases, one should know clearly about the land dispute laws in India.
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.
However, when no one follows the property division rules in India amicably between family members, then the court needs to interfere. And to resolve disputes, partition deed of property plays a huge role.
It is a legally binding document ensuring that the execution of a partition deed provides each party his/her fair share. Therefore, leading to follow the partition suit law in India.
Indian Law for Property Distribution between Brothers and Sisters
Partition under Hindu Law states that 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 a part of her husband’s family.
But today the Indian law for property distribution between brothers & sisters has been refined.
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.
According to the property divide rule in India, any property divided through a partition deed, family arrangement, etc. loses its ancestral character.
So, to understand your matter complexity, you need to have a lawyer consultation to get it resolved.
Table of Contents:
Consult: Property Law Lawyers in India
Indian Law and Family Disputes Over Property
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 family property law in India.
Gone are the days when joint families sought to keep the members together. They ensured that everything was shared equally between brothers and sisters.
Today, the partition of property among family members has become a pressing matter.
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. Moreover, a steady hand of the law to make sure there is a property settlement deed between family members. But reaching that point is very difficult!
What is Partition of Property under Hindu Law?
Hindu Succession Act 1956 governs the partition in Hindu Joint Family. Whereas Hindu Undivided Family (HUF) and the Hindu Partition Act of Property 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 in India.
Under the above-mentioned law of property in India, you will find that whenever we decide to divide property,
it is either on mutual negotiation on how it shall be done,
or there is a dispute which you need to take to the court.
Next, the court 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, India.
Property Distribution Law in India
One of the known facts is 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.
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, 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, by filing a deed of partition between co-owners, 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 Law of Partition in India also states that an ancestral property division happens 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 advice. 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.
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, the division of property happens when two or more people have joint ownership. This has to be in some immovable ancestral or parental property like a house or a plot or land, etc.
Where 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 decide to separately claim their portions in the disputed property, a partition suit is filed.
So, what is a partition suit?
Well, when a party or parties claiming rights over a piece of land or building files a case in the court in the essence of which the property dispute in family arose, this is partition suit definition.
If the family members are happily ready to negotiate about the property partition, then one needs to formulate a partition deed following the property or land partition act.
It defines the respective portions of the property to each party claiming their right over it. A deed of partition also needs the approval 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. Next, register and execute it 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 the court, then they need to file a suit of partition in Court, where the case proceedings take place.
Must Read: Gift Deed Registration
Process for Filing a Suit for Partition
Before filing a court case for partition in India, one needs to send a legal notice to the other co-owners regarding Hindu joint family property partition act as per the Indian law.
Also, if the co-owners do not respond to the legal notice or send an insufficient reply, even then one can file partition suits.
The legal notice for partition suits must include the shares of each co-owner, details of the property in dispute and the needful action to take.
File a partition suit in the court which has jurisdiction over the area location of the property.
The court first determines whether the person who has filed the suit has a rightful claim on the property or not.
It may order to conduct for an inquiry and pass a preliminary or initial decision for appointment of a Commissioner who evaluates the property in dispute and submits a report.
Later, the court addresses the inspection report determining the share of each co-owner on the basis of this report. Also, assess how to divide 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.
After establishing the share, 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 property settlement deed. It must be duly signed by both the parties with the seal of the authority.
After discussing the whole matter in court and convincing all parties of its order, the case of property partition reaches its end of the settlement, by creating a deed of partition.
As per the Indian partition act, all the claimants don't necessarily need 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 the court may direct the sale of a property accordingly.
The partition deed of property between brothers as co-owners depends upon the fact:
whether you divide the property with mutual consent of all the co-owners
or divide on dispute/demand by one or more co-owners.
Further Read: How to Obtain a Legal Heir Certificate 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 wrong.
You need to have someone skilled in the articulation of legal facts. Someone who has experience 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. Since it’s an agreement between members of a family, where no court disputes are there. Thus, executing the division of family property in a peaceful manner.
A family settlement agreement format is on the same format of a partition deed. But it does not require registration and stamping.
All family members must sign voluntarily, without any fraud, coercion or pressure.
There is no strict family settlement agreement format to follow, but it needs to be drafted in a written document.
After the compromise or establishing mutual understanding between all family members.
In all this humdrum of partition action, it can get really difficult. Also, it may get 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 land partition operate under the Indian law for a property.
Thus when you are stuck in such a situation, it is best to approach a lawyer who is expert in handling partition of land issues. Also, who can guide you well on the legal terms and processes involved?
This is where MyAdvo brings in the experience and the expertise for you.