Property from time immemorial has been the reason for the multiplicity of legal proceedings and conflicts in the family. In India, it is often seen that property is owned by joint families but when members move apart, property becomes an apple of discord. Property Partition Laws are thus inevitable in India.
Partition of property is also governed by the personal laws of different religious communities in India - Hindus, Muslims, Christians etc.
What is Partition of Property?
Partition means the division of property held by joint co-owners, into different shares, so that they can enjoy exclusive rights over their property.
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Kinds of Properties that can be partitioned
According to the Property Partition Laws in India, there are two kinds of properties that can be partitioned:
1. Joint Family Property
2. Self-Acquired Property
(1) Joint Family or Coparcenary property:
A joint-family or a coparcenary property includes that property in which the interest and possession is shared by all the coparceners to the property. Any such property can be of different kinds and may consist of:
(a) Ancestral Property:
Any property which is acquired in succession by a Hindu from his Father, Father’s Father or Grandfather’s Father, is an ancestral property. It is property which was acquired by the Hindu Great Grandfather and then inherited undivided, down to the 3 generations of Grandchildren of the family.
Any property should necessarily be 4 generations old in order to be an ancestral property, in the eyes of law. Any such property should not have been divided by the members of the Joint Hindu Family, among the members of the family, during the lifetime of the person who has acquired it.
Properties inherited from Mother, Grandmother, or Uncle are not ancestral properties. Properties which are inherited by Gift or by way of Will are also not ancestral properties. The right in an ancestral property accrues by birth.
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(b) Jointly-Acquired Property:
A jointly-acquired property is that property which is acquired by the members of the Joint Hindu Family by their joint labour, whether in business, profession and with the joint aid of the family.
(c) Separate property of a member “thrown into the common stock” or given in the Joint Fund:
If any coparcener voluntarily gives his self-acquired property in the joint fund with the intention to abandon his/her personal claim to property, it would become joint family property and would be divisible among the members of that particular joint family. The moment the owner of the property waives his/her separate rights on the property deliberately, it becomes a joint property.
(d) Acquisition of property with the help of Joint Family Funds:
When any property is purchased in the name of a member(s) of the Joint Hindu Family by using the joint aid of the other members of the family, it will be blended as a joint property and not as separate property of the member who acquired the property.
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(2) Self-Acquired Property:
A property is a self-acquired property when it is earned or acquired by the personal effort of any person. In case of a self-acquired property, the person who earns or acquires the property, is the single owner of the property, and no one other than the person himself, can exercise his/her any right over the property during his/her lifetime.
A property acquired by a Hindu on his/her own and by his/her own efforts is his/her separate property as it is not the result of any joint labour of other members of the Joint Hindu Family.
Property that has been inherited by a Hindu from any person other than his father, grandfather or great grandfather would have the same effect as of a self-acquired property for the person inheriting the property. In the case where a person earns money through practicing a hereditary profession, the property acquired by that money will be his/her self-acquired and separate property and not a joint property.
A property acquired by a Hindu by a grant from the Government shall also be regarded as a separate property of that person.
Property Partition Laws in India
Under the Partition Act 1893, a person can claim rights over his/her share in the property co-jointly owned by him/her with the other joint holders of the same property.
A property undergoing partition is distributed among the legal heirs in the property, the proportion of which is either decided mutually or as per orders of the Court.
Following are some laws in India that deal with property and its partition:
(1) Partition Act, 1893:
The Partition Act, 1893, provides for laws that govern and assist the partition of property in India. The Act provides for provisions that deal with the rights of the members of the family at the time of partition of family property. Section 9 of the Partition Act, 1893 empowers the Court to distribute the property among the co-owners of the joint family property.
Under the Act, in case of a suit for partition, if it appears to the Court that partition of property cannot reasonably take place and instead sale of such property would be a more beneficial step, the Court can direct the sale of such property and distribution of resultant proceeds.
Consult: Top Property Lawyers in India
(2) Indian Succession Act, 1925:
The Indian Succession Act, 1925 deals with two kinds of succession i.e. testamentary succession and intestate succession. In testamentary succession, a person makes a ‘Will’ as to whom his/her property shall succeed to as per his/her wishes, after his death.
In the case, where there is no written document specifying any details about the distribution of property, the property of the deceased would be distributed according to his/her personal laws. This kind of succession is known as Intestate succession, i.e. in circumstances where an individual dies without a will.
The Indian Succession Act would apply in the case where there is no applicability of any personal law. This Act is applicable to Christians for both kinds of successions i.e. intestate as well as testamentary, whereas only the testamentary succession laws apply to Buddhists as per the Act.
(3) Hindu Succession Act, 1956:
The Hindu Succession Act, 1956 governs property partition in case of Hindus. This Act states that any person who converts into any other religion can still claim his/her share in the ancestral property. However, the descendants of the converted person do not have any right over the ancestral property unless they were Hindus at the time when the succession opened.
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(4) Muslim Personal Law (Shariat) Application Act, 1937:
The Muslim Personal Law (Shariat) Application Act, 1937 applies to those cases where the parties to the partition of property are Muslims. Even if any co-owner of the property to be partitioned converts into another religion, he is the biological successor who has a right to claim over the ancestral property.
Methods of Partition
Partition of property can be given effect to, in the following ways:
(1) By way of a Partition Deed:
A partition deed is prepared in order to divide a jointly owned property among all the co-owners of the property. Partition Deed enables the co-owners to get the share that they are entitled to– which makes them the absolute owners of that particular share- as allotted to him/her in the process of partition.
A partition deed is required to be registered and executed on a stamp paper. This must be done in an unambiguous manner and must specify each person’s share in the property. The date of the property partition must also be clearly mentioned. All the other relevant details of the co-owners of the property must also be mentioned in the property deed. The partition deed must be registered at the office of the Sub-Registrar in order to give it a legal and binding effect.
Settlement of disputes in case of property inherited or jointly owned by two or more than two persons often involves a legal issue and thus the parties concerned find it difficult to solve these problems on their own. It is then when a partition deed plays a major role, as it helps in a smooth execution of partition of any property. It also aids in making the future transactions less complex and chaotic.
Consult: Top Property Lawyers in India
(2) By way of an Agreement:
A family settlement agreement is a legal document between members of a family. It contains of specificities regarding division of family property. It is usually carried out with the motive to prevent disputes and thereby divide the property in a peaceful manner through negotiation. A family agreement does not necessarily require registration and stamping and is drawn in the same format as that of a partition deed.
A family settlement agreement must bear the signatures of all the family members voluntarily involved in the partition of the property. It is not mandatory for a family settlement to be drafted in a written form as it can also be made through a compromise or mutual understanding between the family members.
(3) Partition by filing Partition Suit:
A partition suit is a case filed in the Court of law in situations when all the owners of the property do not agree to the terms and conditions of property division.
Where partition of family property takes place without a family settlement agreement or a partition deed, a case/suit is required to be filed in the proper Court of law for partition of such property. Before filing a case in this process, a legal notice must be sent to the joint co-owners of the property by the individual seeking the partition of the property.
The legal notice to the partition suit must contain all the important information such as the shares of each co-owner, specificities regarding the property to be partitioned and action(s) needed to be taken. If the co-owners of the property do not respond to the legal notice or send an insufficient or ambiguous reply, a partition suit for the partition of property can be filed.
A partition suit is required to be filed in a Court of proper jurisdiction i.e. the Court which has the jurisdiction over the property to be partitioned, or where the property is located.
After the partition suit is filed, the Court first decides whether the person filing the suit has a rightful claim over the property or not. Once the Court is assured that no additional inquiry is required, it may assign individual ownership of the property to all the co-owners of the property as the Court thinks fit.
If the Court finds out that the property cannot be partitioned merely on the basis of the partition suit, it may order for an inquiry to be conducted for the same. Thereafter, it can pass a preliminary decision for the appointment of a Commissioner, who shall evaluate the property in question and would thereafter submit a report of the same. The Court then determines shares of each co-owner in accordance with the report of such Commissioner and divides the suit property accordingly.
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Why do you need a lawyer during Partition of property?
It is very important that you hire a good and experienced property lawyer as he/she is aware of the nitty-gritty of the legal procedures involved in partition of property. As stated above, almost all the methods of partition require a legal procedure – whether in the preparation of a partition deed, drafting of the partition agreement, or filing of a partition suit. Even if partition of property can be done verbally and on good terms with other co-owners, it is best to be safe and involve a property advocate in order to avoid disputes and complications in the future. A lawyer is aware of the property laws and has experience in handling even complex issues. It is thus recommended that you hire a good property lawyer to save yourself from unnecessary hassles and mistakes
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