Partition or division of the Property
Partition of Property in India
Partition of property in India in simple words means a process that divides one part of the land from another land. A partition of a property usually takes place between undivided family members. A Partition of Property in India makes everyone eligible to get their share of the property and helps them get ownership of the share of the property given to them.
This need for partition arises when the co-owners and NRIs want to relinquish or mutually decide to end the joint title of the property and let NRIs enjoy ownership of their share. The division of property in India also helps NRIs to inherit property from their parents. In the Indian context, prior to 1956, the moment a son was born, he acquired a share in his father’s property but according to the present laws, a girl will also get a birthright for the division of property in India. Property partition is subject to the laws of inheritance.
Kinds of Properties that can be partitioned in India:
According to the partition laws in India, two types of property can be partitioned by the owner:
Ancestral Property
Self-Acquired Property
The method in which the partition of ancestral property in India can take place is through a partition deed, court etc. whereas the self-acquired property cannot be partitioned during the time when the owner of the property is alive. The segregation of property is governed by a different law of partition of property in India, even the NRIs interest is also protected by these laws. The laws such as the Partition Act, of 1893, The Indian Succession Act, of 1925, The Hindu Succession Act of 1956, the Muslim Personal Law Application Act, of 1937 etc. are some of the laws of partition of property in India.
Property can be inherited either in the form of ancestral property or by some other relations and in the case where co-owners are unable to take a mutual decision regarding the partition of inherited property then they can choose any of the available modes to them which are:
Partition by Father
File a suit for partition
Partition by arbitration
Property Division through Family Agreement
Property Division via a Deed of Partition
How to file a Partition Suit for Property Division?
If an NRI wants to get separate ownership of his share of the property then he has to initiate a partition of inherited property by filing a civil suit has to follow the following methods:
- A person has to send a legal notice before filing a partition of the suit.
- The NRI has to file a petition mentioning his cause regarding the partition of joint family property under Hindu Law.
- After the hearing and examining the merits of the case, the court will issue notice to the defendants/Opposite party asking for their presence in the court.
- On the day when the Defendants appear the court will grant a 30-day period to the defendant to file a written statement i.e., a reply of the defendant in regards to partition under Hindu law.
- After all the technical legal processes, the court will pass the final order related to the partition of the property.
Unlocking NRI Property Rights: The Importance of Partition Suits
Partition suits ensure that the NRI becomes the exclusive owner of the joint property, as per his entitlement to the same, based on his share in the property. After the completion of the partition, the NRI would become the exclusive owner of a defined portion of the property as against the joint owner of the property.
It is always advisable for the NRIs to get the joint family property partitioned in his/her interest. Joint ownership in the property creates many problems for the owners of the property especially the NRIs because there is more than one owner of the property. The partition of the joint family property will ease the complications for the NRIs, if they want to sell or transfer their property.
In the joint property, all the family members, including NRIs, jointly own the land and property on record but their respective shares are not physically defined with their definitive boundaries. In order to effectively manage the property, its partition amongst the family members becomes necessary. The NRIs have the legal right to inherit all sorts of ancestral properties including agriculture land as well as farm houses. It is recommended that the NRIs should get the partition of their share in the property, as per the provisions of law, to avoid complications at later stage.
Partition Laws in India: Rights and Reopening Possibilities
As per the prevalent laws in India, every coparcener has the right to demand partition, a coparcener is a person who has a legal right in his/her ancestral property by birth therefore to claim their individual share a partition of property between brothers and sisters can take place to amicably settle the controversy related to the distribution of the property. The laws related to succession have defined equal rights in the ancestral and self-acquired property of a person for his sons(brother) and daughters(sister) therefore a demand can be made for the partition of property between brothers and sisters in case there is no will made related to self-acquired property.
According to laws related to Partition in India, once the partition has been made between the co-owners and in any instance where the partition process has a mistake or is done by fraud and if a share has been devolved in favour of a disqualified coparceners, then reopening of partition under hindu law can be done. After partition, a person or NRI is considered free from his rights, obligations, duties and responsibilities arising out of a Joint Family
In case a person died intestate, the property will be divided among his legal heir, suppose a father died without any will and has two sons, in that case, the partition of property after father’s death will be distributed equally among those two sons. It is very important to ensure that there is no vagueness in the Will and it is better to seek legal advice before any sort of settlement. An NRI can face a lot of complications related to partition of property after father’s death. If a Will isn’t clearly drafted at the beginning, this can result in severe legal complexities later on.
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Therefore, our experts at Raj & Kanwar Legal Advisors India LLP team have immense experience in managing, handling and assisting our NRI clients in partitioning the property. The team ensures to ascertain the rightful due of the clients by going through the historical records of the ownership Like the family tree and how it is passed on to the co-owners.