All About Partitions in India

Partition needs no definition as such. We all as lay men know the basic meaning of partition and it has been a hot topic in our homes at some time. I will be dealing with everything connected to this topic in this article today as apparently it is a hot topic now-a-days.

Property has from times unknown been one of the most disputed legal issues in India, with joint families holding properties together, partners investing in a common property for their business or any other practice and spouses purchasing a property in their names. With the co-ownership in property, the chances of legal disputes are inevitable. And thus learning about the same is too.

The partition is governed by the personal laws of different communities and so Hindus, Muslims and Christians have different partition laws. I will be dealing with the Hindu Partition Laws.

So what kinds of properties can be subjected to partition in India?

1.Joint Family or Coparcenary property - Joint-family property or coparcenary property includes the property in which all the coparceners have community of interest and unity of possession. Such property may be of different kinds and may consist of -

(a) Ancestral Property - Property acquired in succession by a Hindu from his Father, Father's Father or Father's Father's Father, is ancestral property. Any property acquired by the Hindu Great Grand Father, which then is inherited undivided down to the 3 generations of Grand children.

This property should necessarily be 4 generations old. It should not have been divided by the members in the joint Hindu Family as if a division of property takes place, the share or portion which each coparcener gets after the division becomes his or her self acquired property. The right in this property accrues by birth. Unlike other forms of inheritance here the inheritance opens only when the owner dies. The rights are determined per strips and not per capita. Properties inherited from Mother, Grand Mother, Uncle or even brother are not ancestral property. Properties inherited by gift or will are also not ancestral properties. Self acquired property becomes an ancestral property if thrown into the pool deliberately without any clause suggesting otherwise.

(b) Property jointly acquired by the members of the joint family- Where property is acquired by the members of joint Hindu family by their joint labor whether in business, profession or vocation, with the aid of Joint Family property, it becomes Joint Family or coparcenry property. According to Bombay High Court a property acquired by the joint labor of the members, even without the aid of joint family funds, is presumed to be joint family property in absence of any indication of an intention to the contrary.

For example- two brothers acquired some property in a joint Hindu family by their joint efforts, in absence of an intention to the contrary it would be presumed to be joint property and their male descendants would acquire an interest in that property by birth itself.

(c) Separate property of a member “thrown into the common stock” - Where any coparcener voluntarily, on his own will throws his self-acquired property into the joint fund with the intention of abandoning all separate private claims to it, it would be joint property, so as to be divisible among all the members. Such an intention need not be express, it is sufficient if the owner blends it as one general account without discriminating between the two, in such a way that a clear intention to waive his separate rights may be established. The most important thing here is that it should be deliberately done.

(d) Property Acquired With The Aid of Joint Family Funds: - Where in a joint Hindu family some property is purchased in the name of one of its members, it will be regarded as a joint family property and not his own separate property. If he has acquired any property without the help of joint family property it could be treated as his separate property. However when the aid of the Joint Family or the fund involved therein is used by any member to acquire a property, it will be blended as Joint Property and not separate property!

2. Self Acquired property - property is self acquired if it is earned by one's own efforts/learning or other human endeavor. In the latter the person acquiring is the sole owner and noone exercises any right other than he himself allows on the same during his lifetime.

Property acquired by a Hindu by his own exertion would be his separate property as it is not the result of any joint labor with the other members of the joint family, provided it is obtained without detriment to joint family property. Where a person has acquired any property by way of adverse possession after remaining in its possession adversely for a period of twelve years it would be treated as his self-acquired property not a joint property.

Property inherited by a Hindu from any person other than his father, grandfather or great grandfather would be his separate property. Where a person earns money from the practice of a hereditary profession like the hereditary priest or any other such profession, it will not be regarded as his joint family property but his separate property. Any property obtained by a Hindu as his share of partition of a joint Hindu family, provided he has no male issue, shall be treated his separate property. Where a Hindu makes some acquisitions after partition with the help of his share in joint family property, that property shall be regarded as his separate property.

Also, Any property devolving on a sole surviving coparcener provided there is no widow in existence who has power to adopt or has a child in her womb, will be regarded as his own separate property. Property obtained by a Hindu by a gift or will unless made by his father, father's father or father's father's father for the benefit of the family and not exclusively for himself, would be his separate property. Property obtained by gift of ancestral property made by the father through affection, will be his separate property. Property obtained by a Hindu by grant from the Government shall be regarded as separate property.

Joint family property lost to the joint family and subsequently recovered by a member thereof without the assistance of joint funds, from a stranger holding adversely to the family property shall be regarded as his separate property and not a joint family property. Also the gains of learning are also self acquired property. Any income earned by a member of joint family substantially by means of his education or specialization, expertise or special intelligence would be regarded as his separate property. Where a member of joint family acquires some knowledge or specialization after getting the education at the cost of joint family fund and later on earns a considerable sum, whether that sum will be treated as his separate property or joint family property, became a controversial issue.

Ways In which a partition can be given effect?

1. Partition through Partition Deed

To divide a jointly owned property among co-owners, a partition deed is prepared. 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 in the due process. 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 favor of the remaining owners. The new owner is the absolute owner and can dispose of the property at his free will. This means he can sell, transfer, exchange, or gift the property, basically dispose it off as he wants.

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. All the other relevant details of members and the property should be mentioned.

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. It also makes the future transactions less chaotic.

2. 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 through negotiation and talking. A family settlement agreement is drawn in the same format of a partition deed, but a family settlement agreement does not require registration and stamping.

A family settlement agreement must be signed by all the family members involved voluntarily, without any fraud, undue influence or 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.

3. Partition Suit in India

Before a court case is filed for partition of property in India, a legal notice must be sent to the other co-owners regarding family property partition which may even avoid the court case on the first hand. The legal notice for partition suit must include the shares of each co-owner, details of the property in dispute and the action required to be taken. If the co-owners do not respond to the legal notice or send insufficient reply, a partition suit can be filed.

A partition suit is a court case filed 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 suit for partition is filed in the court which has jurisdiction over the area in which the property is situated in.

The court first determines whether the person who has filed the partition suit has a rightful claim in the property or not. One the share is established and no additional inquiry is needed, the court may assign individual ownership of the property to the co-owners as it deems fit.

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 an 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 divides the property according to each co-owner's share.

A Legal Heir Certificate

A legal heir certificate is one of the most important things required to acquire a property from one's ancestor on an unexpected death of a family member. A Legal Heir Certificate must be obtained to establish the relationship between the heirs and deceased for claims relating to pension, provident fund, gratuity or other service benefits of central and state government departments. A legal heir certificate in India comes into use when the deceased had not selected a nominee. Even banks and private companies accept these legal certificates for allowing transfer of deposits, balances, investments, shares, other assets etc.

Under the Indian laws, the following people are considered to be the legal heirs of a person and can obtain a legal heir certificate in India through a proper channel and procedure:

  • Spouse of the deceased person.
  • Son of the deceased person.
  • Daughter of the deceased person.
  • Mother of the deceased person and
  • Father of the deceased person.

Procedure to get a Legal Heir Certificate

Procedure to get legal heir certificate is easy and does not involve any cumbersome or complicated legal process. A legal heir can talk to the Family Lawyers to obtain a legal heirship certificate from court and other revenue officers such as Tahsildars, Revenue Mandal officers or Talukdars, in every Taluk. Legal heir certificate from Panchayat can also be obtained. The legal heir in India or the legitimate heir of deceased person must approach the correct government authority with death certificate and other prescribed documents of the deceased and himself.

The officers hand over a form which must be correctly and completely filled. The person making such application must carry the requisite documents and stamp fees must be paid. If the person belongs to SC/ST category, then he does not require to pay this stamp fee. The form must be submitted by Family Lawyers to the officer, after which an enquiry takes place. The inspection is conducted by the Revenue Inspector as well as Village Administrative Officer. Once the enquiry is successfully completed, the legal heirship certificate is issued and the fruits of the same are reaped.

The whole procedure for Legal Heirship Certificate can take up to 15 to 30 days. If the certificate of legal heir is not issued within a reasonable period of time, the legal heir can approach the Tahsildar with help of a Family Lawyers and if he gets no response, he can contact the concerned RDO or sub-collector.

To get a legal heir certificate in India, the following are the documents required:

1. Self-undertaking i.e. an Affidavit drafted and signed by a notary.
2. Letter from the Govt. Department of deceased employee to obtain legal heir certificate from concerned office.
3. Identity Proof of LHC Applicant.
4. Residence proof of the legal heir.
5. Date of birth proof of all legal heirs.
6. Death certificate of deceased employee in original.
7. Death certificate of deceased direct legal heir in original (if asked for).
8. Residence certificate of the deceased person.

Inheritance rights in India

Who can and will get what amount of share and in what conditions is important when we talk about partition. Here is some light shedding on the various points of inheritance.

Inheritance Rights of Children

A son has a right by birth in his father's and grandfather's property. He has just the equal rights with his father and other family members in his grandfather's ancestral property.
In case of his father's self acquired or separate property, if the father dies without leaving behind a will, then the son being a Class I heir will have all and equal rights with his living mother, grandmother and sister or brother.
An illegitimate son is not entitled to get a share in his step father's property. A posthumous child, who is in the womb of the mother at the time of death of the father, is entitled to a share in his father's property. The only condition involved is that he should be alive on his birth.

Daughter's Inheritance Rights in India

This has been one of the most famous query on the forum recently. Until 2005, the property rights of son and daughter were different. Only an unmarried daughter had a right in the ancestral property. But post 2005, after a judgement of the apex court, a daughter has similar rights and duties that a son has. She has an equal right/share in the ancestral property.In case of the father's self acquired or separate property, if the father dies without leaving behind a will, the daughter being a Class I heir will have equal rights with his living mother, grandmother and sister or brother.

Inheritance Rights of Grandchildren

A grandchild, both grandson and granddaughter have an equal share with their father in their grandfather's ancestral property. In case of grandfather's self-acquired or separate self earned property, a grandson will have inheritance right only when his father dies before his grandfather.

Rights of a Spouse

A wife has no right in the ancestral property. Therefore, a widow has no right over husband's ancestral property. She being a Class I heir, will have a right only in the self-acquired property of her husband. A widowed mother also has a right in her son's property which came to be after an amendment.

Inheritance Rights of an Adopted Child

The inheritance rights of an adopted child are similar to that of a natural born in the new family. Yes, uponadoption, a child loses his rights in the biological family but if a property vests in him before the adoption, then the property will continue to be in his name.

This table will give you a proper overview of inheritance by different members.


Property Type

Wife

Daughter

Son

Right

Ancestral/ Joint family property

No right

Yes

Yes

Both son and daughter have equal rights. Not wife.

Father's separate/Self-acquired property *while he is living*

No

No

No

Father can bequeath the property by will or gift.

Father's separate/Self-acquired property

Yes

Yes

Yes

They have equal rights if the father has not written a will.


In case there is a will that a person writes before he passes away, then the inheritance is completely governed by the will and whatever is written by the person has to be followed without any changes. It is important that the individual writing that will is competent and has not written the will under any undue influence. The property should be self acquired as a person cannot make a will for the ancestral property as that property has to be divided equally between the legal heirs according to the Hindu Succession Act. Where a will is involved, the Indian Succession Act plays it's role.

The procedure for partition and inheritance is a cumbersome one and may take a lot time and have you spend a lot. You may have to jump from one authority to another too. Thus it is absolutely advisable to engage a good reputed lawyer in any such matter so that partitions can be less painful. Hope my article and research would help you resolve you queries.

 

Raghav Arora 
on 12 June 2018
Published in Others
Views : 1744
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