Property division rules in India

Partition means the division of property held by joint co-owners into different shares so they can enjoy exclusive rights over their property. Property has been the source of numerous legal and familial disputes since the beginning, and land partition rules are prevailing in India since ancient times. Joint families in India frequently own property.

The property becomes a source of contention when family members separate. Most civilians have no clue how to divide land between families, which eventually turns to disputes. Therefore, in India, property partition laws are unavoidable. The personal laws of India's various religious communities, including Hindus, Muslims, Christians, etc., also regulate property division.

The phrase "property in its most comprehensive sense comprises all legal rights of a person save his rights, which form his status or personal situation" was used in the case of Raichand v. Dattatreya. If there is property, there needs to be strongly established property partition laws in the country.

Read about property laws in India and modes of acquisition.

Properties That Can Be Partitioned

• The property distribution law in India broadly applies to these two categories of property. 
• Self-acquired property
• Joint family property

Land Partition Rules In India

Hindus have a perpetual right to partition their ancestors' property. At that point, it is not essential to divide the entire property, and the remaining co-owners are free to maintain their joint status even after such a division. 

A shared ancestral property split is calculated with the aid of family lawyers. Settlement and the preparation of a partition deed are two ways that partition may occur. However, since the land division between brothers or family members is rarely straightforward, court involvement is usually needed. 

In this situation, a civil lawsuit is initiated under the Land Partition Act of 1893's procedures. The Court determines whether the property in question is ancestor-owned and whether the purported coparcener genuinely has any legal claim. 

Following that, shares are decided, and the method of the split is also confirmed based on the property in question and the wishes of the other co-owners.

It is best to settle family property issues amicably because such nuanced cases can take forever to resolve while one pays the additional price of a compromised relationship with family members. 

An unrelated official (judicial officer) decides what is in their best interests regarding the land division between brothers.

How is family property divided?

Everyone inherently receives a portion of the joint family property at the time of their birth, which is one of the recognized facts. But a person can inherit property from up to three levels of ancestors (i.e.., his father, grandfather, and great-grandfather). These assets are referred as ancestral properties. 

According to India's joint family property division law, a family partition agreement can be used to divide ancestral property. A direct lineal descendant of a shared ancestor, up to three degrees close to the typical male ancestor, qualifies as having a stake in ancestral property. The jointly owned ancestral property may be divided under Indian law regarding property partition, or it may be divided amicably. 

Coparceners are those who own a piece of ancestral property. They jointly own the property, in other terms. A coparcenary consists of the eldest family member and the following three generations, with each member having the option to sell their share to a third party later.

By filing a deed of division amongst co-owners but not a member, a coparcener can also file a lawsuit requesting partition action of the coparcenary property. Today, even a daughter who co-owns a property can request the division of her father's properties.

Learn how to claim your ancestral property in India.

Methods of Partition of Land Property

The following are some of the prescribed and practiced methods of partitioning a land property: 

Partition by mutual agreement:

Partition of the property by mutual agreement can be done by Partition deed or family settlement.

Partition deed:

The property is divided between the co-owners of the property by a Partition deed. This deed is produced to divide the property so that each party receives a complete title to their respective portion of the land. The co-owners carry out the division deed themselves. To achieve this, the assets are divided into shares to which each co-owner is legally entitled. This does not necessarily imply that the property would be shared evenly. The distribution follows the law.

Family Settlement:

Another option for dividing the property is through a family settlement. In this case, the parties negotiate a settlement without the assistance of a judge. The family settlement deed doesn't need to be stamped on paper or registered. It also need not be in writing, but all co-owners must approve it.

Partition through Court:

A legal notice stating each co-owners interest in the property, their share, and the action to be taken must be served on each co-owner before filing aproperty partition suit to resolve the conflict. Even after this, a civil lawsuit is brought before the Court if the matter is not resolved.

Partition through Will:

A copy of the Will certified with the court seal is known as probate. According to Section 222 of the Indian Succession Act, 1925, only Will's executor may receive probate. Following the petition's submission, the Court publishes a notice in any respected newspaper to solicit any objections. If there is no opposition, the Court awards probate after concluding that the evidence is satisfactory.

Property Laws In India:

A person may assert rights over their share of the property they jointly own with other joint owners under the Partition Act of 1893.
Following are some laws that deal with property in India:

Partition Act, 1893

The 1893 Partition Act establishes rules to guide and facilitate the division of property in India. When a family property is divided, the Act contains measures that address the interests of the family members. The Partition Act of 1893's Section 9 gives the Court the authority to divide the joint family property among its co-owners.

According to the Act, the Court may order the sale of a piece of property and the distribution of the revenues if it appears to the Court that the partition of the property cannot reasonably take place and that selling the property would be a more advantageous course of action.

The process to send a legal notice for the partition of properties in India.

Indian Succession Act, 1925

The two types of succession covered under the Indian Succession Act of 1925 are testamentary succession and intestate succession. In testamentary succession, a person creates a "Will" stating whom they want their property to go to after they pass away. 

If there is no written agreement outlining specifics on the distribution of property, their laws will disperse the deceased's property. This type of succession occurs when someone passes away without leaving a will, known as intestate succession.

Hindu Succession Act, 1956

Hindu property division is governed by the Hindu Succession Act of 1956. According to this Act, anyone who changes their religion is still eligible to collect their portion of the inherited wealth. However, unless they were Hindus when the succession opened, the descendants of the converted person have no claim to the inherited property.

Muslim Personal Law (Shariat) Application Act, 1937

When Muslims are involved in a property division, the Muslim Personal Law (Shariat) Application Act, 1937, is applicable. Even if a co-owner of the property to be divided changes their faith, the biological heir still has a claim to the inherited property because they are the biological successor.

Read Also: Property Division Under Muslim Law

Common erroneous beliefs about property division

People's very first misperception is that a will can be made in the situation of ancestral property, which is untrue. A person has a vested interest in the ancestral property when born into the family, which gives them the legal claim. According to the rules of that particular faith, this form of property is divided. In these situations, a will cannot be made; only when the self-acquired property is involved is a will made.

The second myth that permeates society is the idea that once the property is passed to the nominee, he automatically becomes the owner of it. This is not the case, though. Only the trustee of the property is a nominee. He must complete the tasks that the nominee was unable to complete. He was recently chosen to carry out the task on behalf of the nominee, who is no longer alive.

Frequently Asked Questions

What justifications exist for reopening a partition?

In the event of fraud, a kid in the womb, an adopted child, a disqualified coparcener, a child conceived and born after the partition, an absentee coparcener, a juvenile coparcener, or the omission of properties, the partition may be void and reopened.

Who may bring a partition into action?

In the event of a dispute, anyone with a birthright connection to the property may launch a partition suit.

Is a partition deed required to be registered?

Yes. The sub-office registrars are where the partition deed must be registered. There is a 500-rupee registration fee.

What conditions must be met before bringing a partition action?
The limitation period following the filing of a partition suit may begin on the date the instrument was registered.

About The Author:

Adv.Ankan Suri is a practicing lawyer at Supreme court and High Court of Delhi with 15+ years of experience. He is a consultant and practices in the area of Intellectual Property, Matrimonial, Property, Company Matters and on the Criminal side. He is at present running his Law firm out of his office in Greater Kailash and chamber in the Supreme Court with a team of 8 juniors.