Partition of Ancestral Property in India

Introduction

Partition of ancestral property is one of the most contentious issue in the Indian legal system. Often the problem arises when families have to take upon the responsibility of sharing the property inherited over several generations without any documentary evidence or agreement.

Put in simple words, partition would mean realization by the legal heirs of the ancestral property to the extent of share in the concerned property, so that they can have an undivided interest in the property with power of alienation, and this can be done either amicably by agreement amongst the owners or through a court of law by way of a partition suit.

What Is Ancestral Property?

There is no statutory definition of ancestral property. Under Hindu law, it has been held to be property inherited by a Hindu from his ancestors up to four generations, that is from father to great-grandfather when their estate was undivided. The property must go on being undivided.

Key points:

Is ancestral if property is inherited by intestate succession from male ancestors up to four generations.
Property that has been obtained on one’s own, through gifts or inheritance, shall not constitute ancestral property.
After the estate has been divided, the share of each person shall become his self-acquired property and he is at liberty to deal with it.

Who Can Claim a Share?

Ancestral property under Hindu law is regulated by coparcenary (sharedership) concept. Until 2005 the sons were sole coparceners. The Hindu Succession (Amendment) Act, 2005 accorded an equal footing, that is equal coparcenary right by birth, to daughters as well.

What are the essential principles related to it:

Anyone born into a coparcenary possesses by way of birthright in an ancestral property.
Only a coparcener is entitled to claim the partition. Others may be entitled to maintenance or residence.

iii. Grandsons/grand-daughters shall also get ancestral property rights if it remains undived in the stipulated limit of four generations.

Methods of Partition

Division of ancestral property can take place in the following ways-

Family Settlement or Mutual Agreement

If there is consensus among all legal heirs, property can be divided through family settlement or partition by agreement. This method is typically simpler, faster and less costly than partitioning through court proceedings,

Steps: The heirs should decide the shares and execute a family settlement or partition deed and get it registered by paying requisite stamp duty under the respective state law. Finally, mutation entry is to be made in the revenue/municipal records.

Partition Deed

Partition deed is a registered document where shares and portion of each person are recorded in clear written terms. It is always recommendable to get a partition deed registered for immovable property to avoid any future conflict.

Partition Suit in Court

When a family settlement or compromise is not possible among all co-owners, any one legal heirs can file a suit for partition before the appropriate Civil Court. It is the commonest way to settle partition disputes.

Arbitration or Mediation

Parties sometimes resolve the question of inheritance of property through arbitration or mediation, to avoid disputes and lengthy court proceedings.

Step-by-Step Process of Partition Suit

In case of dispute going to court – The general procedure is as follows:-

Step 1: Fix property particulars – Get the full particulars of the property, including its address, survey number, area and registration. Establish if it is ancestral in property and not self-acquired property.

Step 2: Serve Legal Notice – You should serve a formal notice to the other co-owners regarding your intention to get the property partitioned. This will show the courts, that you tried to amicably solve it.

Step 3: File partition suit – You will have to file a partition suit in the Civil Court ( territorial and pecuniary jurisdiction) describing all the legal heir’s/co-partners, description of the property,valuation, and title documents. You will have to annex the sale deed copies, mutation records and other land records.

Step 4: Examination by the Court – The court will send notices to all the co-owners and then analyse the property title and the rights in the partition. Further the court might pass an order appointing a commissioner and then suggesting the way for division of the property

Step 5: Final decree of Partition – After analysis the court issues an order called the Final Partition Decree according to which all members can get their divided shares and also the court might be forced to even order for sale of the property and distribute money among the partitioners or give cash compensation for the share.

Step 6: Registration and Mutation – after the issuance of the Final Partition Decree the claimant’s share should be registered and a mutation with respect to his property share must be carried out in the municipal and revenue records.

Documents Required

The common documents required in a partition suit are:

Title deeds, sale deeds, etc., relating to property.
Mutation entries and revenue records of the property.
Receipts for payment of property tax.
A copy of the genealogy of the family.
If ancestors have died, their respective death certificates.
Partition deed or family settlement, if any.
Identity proofs of all the parties.

Rights of Coparceners in Ancestral Property

As a coparcener you get the right to:

Joint possession and enjoyment of ancestral property.
Demand partition at any time.
Demand account of receipts and payments from Karta of the property.
Impugn (dispute) unauthorised alienation of ancestral property.
Your share in the ancestral property after partition.

Common Misconceptions

Myth – A woman is deprived of her property right; only boys have rights in ancestral property:

reality – After the 2005 amendment made in property law, daughter’s acquired birthright to get coparcenary share in ancestral property just like son:

Myth – My father can sell off the property inherited from his ancestors:

reality – In most circumstances, a father has no right to sell ancestral property without getting it partition and without getting it verified that it would not affect rights of the others in property:

Myth – Once the property has been divided, you lose all right over it:

reality – Partitioning divides the ancestral property and turns an ancestral character in self – acquired property in which the owner gets full property right in his partitioned share.

FAQs

Can a daughter claim a share in ancestral property?

Yes. Daughters have also acquired the coparrnency rights in ancestral property by birth after the amendment in 2005.

Can ancestral property be partitioned without going to court?

Yes. If all legal heirs choose to settle the property amongst themselves then partition can be effected by family settlement deed or partition deed by registering the same and does not require filing of a suit in court.

What if one family member refuses to agree to partition?

You may also institute a civil suit for partition, in the concerned court and partition can be legally carried out.

Can grandchildren claim a share in grandfather’s property?

Absolutely, where the property is ancestral and the rule of four generations applies, then grandchildren are entitled to a birthright share.

What happens to the property after partition?

Each share held by each person becomes self-acquired after the partition and each person can sell, gift or deal with the same individually.

Is registration of a partition deed mandatory?

For immovable property, registration of a partition deed is preferable and state legislation mandates registration thereof.

Conclusion

There are two methods of division of ancestral property, one either by consent or through a partition suit. It is decided by the courts and specific to the personal law.. In either case, the primary motivating force is to give each heir a fair hearing and a legally recognized share.

Since these issues are yet intertwined with legal and emotional elements it is best to get proper legal counseling before making any move. A detailed partition can avoid future conflicts and preserve family relationships.