How to Send Legal Notice for Partition of Property?
In a joint family where the ancestors die without making any will or gift deed or any deed of family settlement, to secure individual right over that ancestral property requires the living heirs to either sign Deed of Partition or file a partition suit.
Let's discuss how and when to send a legal notice as such situations.
Written by: Prachi Darji
Published on 18-Sep-19
One who usually sends a legal notice for the partition of property is:
An individual owner, or
A co-owner of the undivided ancestral property
Other co-owners can send a partition suit legal notice if anyone tries to sell its portion without the written consent. In case of several owners in a joint property, where most are willing for partition - even if one denies it - then you can send a partition legal notice to them.
When can you send a legal notice for the partition of property?
Legal notice for the partition of property can be sent by a person who is a joint or co-owner with other persons. When a person owns a property with other owners then he/she can send a legal notice for the partition of property. Thus, he/she can become a single owner of his/her portion of the land.
When Can You Send a Legal Notice for Partition of Property?
Usually in India, one can send a legal notice for the partition of the property mainly in two scenarios:
When one or more than one member of a joint undivided property sale, gift, mortgage, lease out or dispose of any other way; it is an illegal act.
Without the written consent of all the other co-owners, it can be opposed by others through a legal notice for the partition of property.
The rule is only applicable in case of ancestral property and not applicable in case of self-acquired properties. The legal heirs of the deceased owner of a self-acquired property can dispose of that property in accordance with their wish.
Nobody will have the right to raise any objection over that.
On the other hand, in case there is one or more than one owner in the joint property, who is/are willing to do partition of the property and express their intention to others and if the other owners deny doing so then legal notice for partition suit can be sent against them.
After receiving a legal notice, if defendants agree with the terms, then mutually all parties can sign a Deed of Partition. A competent advocate drafts this properly. You can also register this before the respective District or Additional District Sub-Registrar.
At the time of registration of Partition Deed, respective Stamp duties need to be paid to the Government.
Important Points to Note at the Time of Drafting Legal Notice for Partition of Property
With the help of good property lawyers, you can draft a legal notice for partition suit to the other co-owners of the joint ancestral property.
A sample of legal notice for partition suit can be found here. Legal notice for the partition of property must contain these essential points:
Name, description, and place of residence of all the other owners
Details of the cause of action
The relief claimed by the sender of the notice
The detailed description of the property in dispute
The clear demarcations of the property partition portions and a common undivided proportionate share of the property
Relevant Statutes and Court Dealing with Legal Notice for Partition Suit
The following laws mainly govern the suit for partition of property:
As discussed earlier, if/when there is an infringement of right over the property in cases of other relatives or members of your family illegally disposing of the common undivided property, you can file a suit for declaration and suit for a permanent injunction.
Either before the Court of Civil Judge Junior Division or Munsif or before the Court of Civil Judge Senior Division or Sub-Judge depending on the value of the suit property.
If the property has already been sold or disposed of by the other Co-owners to any third party then you should send a legal notice for partition suit to the co-sharer along with the third party purchaser.
After sending the Notice you should file suit for permanent injunction and cancellation of sale before the concerned Civil Court.
There is another right available for the infringed party before the Criminal Court. Under Section 406 of the Indian Penal Code, if the accused sells more than his/her proportionate share of the property, then a criminal procedure can begin against him/her before the Judicial Magistrate with the rank of First Class.
When can you send Partition Suit Legal Notice while the Probate is still pending?
Made by Hindu, Buddhist, Sikh or Jain on or after the first day of September 1870, within the territories which at the date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or
No right as an executor or legatee can be established in any Court; unless a Court of competent jurisdiction in India has granted Probate of the Will under which the right is claimed.
However, this provision applies only to the cases above. Therefore, one requires a Probate of Will, which is compulsory.
Hence, after the demise of the testator of a will, unless & until one grants you the probate then you can't establish the liabilities and entitlement over the property.
Before the issuance of probate, if anyone sells or disposes of the suit property, then one can send the partition suit legal notice probate pending to them.
Frequently Asked Questions:
Can a legal notice be sent by email?
A notice sent via email is not a legal notice. A legal notice, as mandated by the law in the given facts, has to be issued by a lawyer on his letter head. FIR can be filed for the offence of cheating.
Can an individual send a legal notice?
Yes, an individual can send a legal notice, but it requires to be approved by a lawyer.
Who can issue a legal notice?
Any person whose legal right has been infringed can send a legal notice online or physically to the person or company infringing the legal right. In simple words, any person who has faced some legal issue can send a legal notice through an advocate.
What is a legal notice?
A legal notice is a formal communication to a person or an entity, informing the other party of your intention to undertake legal proceedings against them.
Is it mandatory to reply to a legal notice?
Non-reply to the legal notice is not an office under the Indian law. However, it will definitely give an edge to the sender of the legal notice if that matter reaches the court. So, it's advised that you should always reply to a legal notice through a lawyer.