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I am a girl born in a Hindu family before the 2005 Hindu Laws amendment which grants daughters the right to share in ancestral property, even retrospectively. But alas, my family lacks that ancestral property. Now does that mean that I can not seek right in my family property? Can my brother take away the property my parents own? Well, it depends upon the nature of the property under question and whether I am a co-owner or have any right in the property. This sounds complex and an attempt to simplify the same has been made below dedicating focus upon land partition rules in India.
Ownership of Land in India
Before jumping to the concept of land partition rules in India, it is relevant to understand how one gets the ownership of property in a family. There are basically two kinds of property, one is ancestral, which is inherited from ancestors, basically the fathers and fore-fathers. The other kind is self-acquired property. Talking about the latter, a person possesses complete rights over self-acquired property. The person may devolve it among his/ her children, one of many children, none of the children, to the spouse, or whoever in the world is dear. There is no restriction on rights and there is no other rightful person as well who can question transfer of self-acquired property. However, if the owner dies intestate, i.e. without leaving any Will clarifying rights of such property, land partition in India may take place among the rightful heirs based on the laws applicable.
Now coming to ancestral property, the rights in the same are divided among the legal heirs. The commencement of rights takes place by birth (coparcener) in the family for more than three generations when it comes to Hindu Undivided Family. But, after the death of such ancestors in case of Muslims and others as well. Differences are often experienced after property disputes in family and those lay the foundation stone of partition of property among family members in India.
How Can I Partition my Property in India?
Property partition in India is a subject of personal laws in the absence of any Uniform Civil Code[1], specifically when the joint owners are members of a family. Hence, before you get to know how to partition property in India, it is pertinent to know which laws will apply to you based on your religion. Consultation with property lawyers in India may bring clarity.
Applicable Laws for Partition Rules in India
|
Religious Details |
Applicable Laws |
|
Hindus |
Hindu Succession Act, 1956 |
|
Muslims |
Testamentary Succession - Sharia law Intestate Succession - Muslim Personal Law (Shariat) Application Act, 1937 |
|
Christians |
Indian Succession Act, 1925 |
|
Parsi |
Indian Succession Act, 1925 (Section 51) |
|
Anyone |
Indian Succession Act, 1925, Indian Partition Act, 1893 |
Land Partition Rules in India
For Hindus, a coparcener may seek partition of ancestral property at any time. Partition of the whole property is not necessary at that time and the remaining coparceners may continue the joint status even after such partition. With the help of family lawyers, share in joint ancestral property can be calculated. Partition may take place through settlement and partition deed may be prepared. However, since land partition between brothers or family is rarely smooth, court intervention is often required. In such a case, civil suit starts with proceedings as per Land Partition Act, 1893. The court calculates whether said property is ancestral and whether the alleged coparcener actually holds any right. Thereafter, shares are decided and mode of partition is also confirmed depending upon the property in question and other co-owners’ will.
For other religions, the law of partition of property in India applies after the death of said ancestor who dies without leaving any Will. The validity of Will, if registered, is also subject to the personal laws applicable. Muslim laws have different aspects for Sunnis and Shias. Thus, consultation with Muslim law property lawyers may be fruitful. Talking about the legal heir who become sharers in case of deceased Muslim, the following have to be considered.
Partition of Property Among Family Members of Muslim Deceased
- Husband
- Wife
- Daughter
- Daughter of a son (or son's son or son's son and so on)
- Father
- Paternal Grandfather
- Mother
- Grandmother on the male line
- Full sister
- Consanguine sister
- Uterine sister
- Uterine brother
Documents Required for Partition of Land
- Names and addresses of co-sharers
- Names and addresses of legal heirs of the deceased co-sharers
- Family tree in case of family property
- Proof of joint property
- Proof of ownership of property
- Valuation of the property
- Share in the property
- Property description along with the dimensions
For Kolkata residents or property located in the city, contact a property lawyer in Kolkata.
When does a partition take place between a father and a son?
In case there is an ancestral property of Hindus with shares owned by a father and his son, or a daughter for that matter, partition may take place at the request of either. The right in ancestral property is called coparcenary right which starts at the time of birth of such a child. Hence, even if the father denies partition, the same can be requested by the son for his coparcenary right in that property. However, where there is a self acquired property of a father, his son can not ask for partition of such property during the father’s lifetime. The father has complete right in self-acquired property and may dispose of the same without anyone’s consent and even without giving shares to anyone related to him, regardless of whether it is his own spouse or children.
In the case of Muslims, the right to inherit property starts at the time of death of a person. Hence, a Muslim son can not ask for partition of land from his father during his lifetime.
Can a Married Daughter Claim Parent's Property?
Yes, the personal laws of Hindus, Muslims, and even the Indian Succession Act supports the daughter’s right over her parent’s property as well as the ancestral property. However, in case of a self acquired property, the owner’s Will may supersede the daughter’s rights. Also, the concept related to daughters born out of a lawful marriage or otherwise may negate this right depending upon the applicable land partition rules in India.
General Rule for Land Partition in India
Since there is no long term gain through property while relations are destroyed, it is advisable to resolve property disputes in family amicably. However, these are just sayings and people have other beliefs in modern India. So, the matters concerning land partition between brothers are adjudged by an unrelated officer (judicial officer) deciding matters of their best interests. Land partition application should be instituted in the court of suitable jurisdiction. The list of documents required for partition of land in India have been listed above. Courts look into facts of matter and the law of partition of property that applies. Land partition of property in India takes place in accordance.
[1] As proposed under the Article 44 of the Constitution of India, 1950.
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