Laws for Partition of property in India

Posted On : October 25, 2019
Laws for Partition of property in India
The split among brothers and sisters, what is partition of property according to Hindu Law, what does the partition act entail and so on are discussed in this blog.
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The Partition Act (1893) authorizes one of claiming entitlement over his/her shares. The article essentially focuses on the underlying laws that are the guidelines of the division of property in India and the actions one may take in dealing with contentions over partition seamlessly and effectively.

The physical partition of any property is executed according to the property’s Partition Deed ensuring each family member gets his/her fair share. Based on the Property Law in India, when the rules of the partition of property aren’t followed or if an amicable settlement is a far cry, a court case may ensue for resolution of contentions.

The law also mentions the inheritance of property through the male lineage of up to four generations.  Nonetheless, up until the amendment of the Hindu Succession Act, 1956 in 2005, there were separate property partition laws for sons and daughters.

Newest Property Law in India mentions a girl child regardless of being married or unmarried, will be regarded as much a member of her father’s HUF (Hindu Undivided Family) as a male child is. The girl child could be appointed as the designated ‘Karta’ or manager of the HUF property of her father.

The Split Among Brothers and Sisters

Those days when joint families were determined to keep the family members as a cohesive family where the spirit of sharing and caring was alive are long gone. These days, however, there is a palpable need for the partition of property among family members. Owing to the family members’ indecision, to execute the partition would require the law to be steady and unbiased so that a fair settlement can be ruled out.  

According to Hindu Law, What is Partition of Property?

A property within a Hindu Joint Family is partitioned according to The Hindu Succession Act, 1956. While the division of jointly-owned property by two or more co-owners is according to the Hindu Undivided Family (HUF) and the Hindu Partition Act of Property, 1892. This process is triggered as soon as a partition suit is filed in India. According to the property law in India, one would find that as and when a decision is made on the partition of property, its either partitioned according to a mutual agreement among parties and in case of contentious issues the issues are litigious and therefore requires the law to intervene with the help of property lawyers.

During a court hearing, the judge reviews the claims of all co-sharers on the property so that an order can be passed that would grant all co-sharers their rightful shares according to The Partition Act, 1893. In the case of a joint family in India, the partition law alludes that an ancestral property can be partitioned on the grounds of preparing a family partition agreement also known as the Partition Deed. A Partition Deed is prepared according to the personal laws of inheritance which are linked to Hindus, Muslims, and Christians and accordingly the family property is partitioned. Coparceners of the ancestral property is a direct descendant of the same ancestor.

The partition of the ancestral property with joint ownership is according to the Property Division Law in India or one can arrive at a conclusion of a negotiated settlement. Claimants of shares in the ancestral property are known as coparceners or co-owners of the property. Included in a coparcenary are the eldest family member and three generations, a member of the coparcenary, however, can sell their share to a third party. Besides, a coparcener can file a deed of partition lawsuit of the coparcenary property aimed at partition among co-owners but not among members. 

These days, even daughters can assume the role of coparceners demanding that a house, business or property owned by their father is partitioned. Property law of partition in India also mentions that partition of an ancestral property can be executed either through a family settlement or partition deed or by filing a suit of partition in court. Besides, it ought to be noted that self-acquired property in India cannot be partitioned during the lifetime of the acquirer however self-acquired property after the death of the owner becomes a part of the ancestral property. However, the self-acquired property can be granted through his/her will to any person he/she wishes.

What does Partition Act entail?

First and foremost, according to the property law in India, the partition of property takes place as and when any immovable ancestral or parental property like a house or a plot of land is jointly owned where either party or both parties intend on alienating their share of the property. Once the portions in the contentious property are separately claimed, filing a partition suit is essential. For better understanding of land partition laws in Kolkata, consult with property lawyers in Kolkata.

What is a Partition Suit?

When a party or parties stake a claim either over a piece of disputed land or building leading to a lawsuit it is known as a Partition Suit.

If the family members are agreeably negotiating about the partition of the property, then one ought to prepare a Partition Deed according to the Partition Act, 1893. It is an official court document created by the parties through negotiation or court order. It clearly defines the portions Fof the property that each party can claim.

A partition deed needs the court’s approval and registered at the Sub-Registrar’s office so that the deed is both legal and binding. Thereafter, the deed has to be registered and a draft prepared on a stamp paper clearly and unambiguously specifies each person’s share and the date of the partition of property. Nonetheless, should the families need to settle this in court, they ought to file a Partition Suit in Court, where the proceedings of the case will ensue.

Written By:
Avik  Chakravorty

Avik Chakravorty

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question markLimitation act, Adverse posession, Koor-chit partition 2 Response(s)
Dear Sir, Your questions cannot be answered by any other Advocate rather than local advocate who knows local laws and you must surrender for personal discussions to get clear legal answers otherwise you may be misled.
question markFamily Partition suit 2 Response(s)
Dear Client, The court fee for filing a partition suit is levied on the value of the total area/volume of the property and after the partition of the property, Stamp duty and registration fees on sale are charged on the market value or set forth value (whichever is higher) of the property belongs to each owner post partition. The Court fees and stamp duty are different things applicable for different purposes. Thus, for filing a partition suit court fee shall be a guideline value of the property. Reach out to an Advocate for guidance and steps.
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you seem to know more than me. i wonder if i should lend any advice to you at all. nevertheless let me see if i make some valuable contribution....... first as the property is the self acquired property of the deceased father acquired in the name of his then wife so as far as heirs are concerned the property is both de jure as well as de facto is of the mother (said wife ). and mother has absolute right to dispose off the same as per her wish. second if the nomination change is denied by the original nominee and made using otp after the death of the father then the nomination change will be revoked by the bank on court order. third appoint a suitable lawyer who can present your case accordingly and obtain speedy relief. #Civil #freeLegalAdviceOnCivil
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Hi, 1. The Son cannot claim right on the self acquired properties of the mother while she is alive. The properties held in mother's name shall be treated as self acquired property. 2. Since nomination is disputed, the settlement of funds would be done among the legal heirs, therefore succession certificate will be required. 3. Under the Benami Transaction Act, no suit lies for the recovery of any benami property. 4. Succession Certificate only determines the legal heirs and, whereas the partition suit is for a decree of the court to get a share/shares in the property, so there is no question of res judicata as these are inherently different. These two will be dealt separately by the court as per the procedure for each.