Partition of Property in India
Property is one of the most disputed legal issues in India, with joint families owning properties together, partners investing in a common property for their business and spouses purchasing a property in their names. With co-ownership in property, the chances of legal disputes are inevitable. However, the partition of property among family members provides a great remedy and avoids any future legal disputes.
Partition means the division of property between two or more co-owners. Partition of property in India takes place either through a partition deed or family settlement agreement. A co-owner can also file a suit for partition in court.
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A jointly owned ancestral property can be divided through a partition deed or family settlement. Every Hindu male and female, 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 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. These persons who have a share in the ancestral property are called coparceners.
Self-acquired property partition cannot be done during the lifetime of a 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 allot the self-acquired property through his will to any person he wants.
Partition through a Partition Deed
To divide a jointly owned property among co-owners, a partition deed can be made. The partition deed divides the property between co-owners so that each person gets a share and becomes the absolute owner of the share allotted to him/her. This is done by distributing the property according to the share that each co-owner is entitled to.
The Hindu Succession Act, 1956 governs partition in Hindu Joint Family or Hindu Undivided Family and the Property Act, 1892 governs property partition of jointly-owned property by two or more co-owners. Upon division, each divided property gets a new title as each owner gives up his interest in the property in favour of the other owners. The new owner is the absolute owner and can dispose (sell, transfer, exchange, gift) of the property of his free will.
A partition deed must be registered and executed on a stamp paper in clear and unambiguous manner, specifying the share of each person and the date of property partition. This new partition deed must be registered at the office of the Sub-Registrar to give it a legal and binding effect.
Settlement of issues about the partition of property inherited or jointly owned by two or more persons sometimes involve a lot of legal issues. The parties concerned find hard to complete these problems by themselves in the absence of expert guidance, examples, and legal help. Therefore, a partition deed helps execute a smooth division of property.
Partition through Family Settlement Agreement
A family arrangement is an agreement between members of a family, which is made to prevent any court disputes and divide the family property with peace. A family settlement agreement is drawn in the same format of a partition deed, by a family settlement agreement does not require registration and stamping.
A family settlement agreement must be signed by all the family member voluntarily, without any fraud, coercion or family pressure. It is not necessary that the family settlement agreement is drafted in a written document and can be made through a compromise or mutual understanding between the family members.
When all the owners do not agree to the terms of property division and one or more co-owners want to divide the property according to their shares a partition suit in the court can be filed. A suit for partition is filed in the court which has jurisdiction over the area in which the property is located. If the property cannot be partitioned merely on the partition suit, 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 property and submits a report. The court then determines the share of each co-owner on the basis of this report and divide the property according to each co-owner’s share.
If you require further clarification or would like to proceed with the partition of property in India, please contact us.