An old saying, “Blood is thicker than water” is an accepted notion in our society, where immense importance is given to family members before any other relatives or friends. Once the family becomes embroiled in legal issues regarding the division of their possessions, this idea becomes tarnished. Things that may be resolved easily with the aid of sympathy end up in court, destroying their friendly ties and causing a split between the members. The definition of property was provided by the Hon. Supreme Court of India in the case of R.C. Cooper v. Union of India. In this instance, the Court noted that the term “property” encompasses both incorporeal objects like copyrights and patents as well as corporeal goods like land and furniture.
If a family property issue is not resolved amicably among the family members, it is no less than a battlefield with intense drama and perhaps even bloodshed. Property disputes are a fairly typical occurrence among Indian families since they are not exclusive to any one strata of society; rather, they are common everywhere from modestly income households to extravagantly wealthy families. Most families don’t know that litigation is not only expensive but also a time-consuming process, so they choose to get involved in a court battle instead of trying to resolve their differences amicably. Additionally, there is no assurance that litigation will result in a good resolution.
Ancestral or self-Acquired Property:
The property can be ancestral or self-acquired. The owner of the self-acquired property is not permitted to divide it while they are alive. Any co-owner may initiate a partition; the permission of the other co-owners is not necessary. Share of each co-owner: If not specified, the shares of the co-owners must be determined during partition to ensure that each receives the proper share. It is always preferable to get professional legal assistance to avoid pointless disputes.
Partitioning of the ancestral property refers to the desire of two or more family members who have rights to the property to acquire independent ownership of their respective portions of the property. The division of property among family members can then occur, either uncontested through a partition deed or family settlement, or challenged (without mutual consent) through the filing of a partition suit. On October 14, 1953, C. N. Arunachala Mudaliar battled C. A. Muruganatha Mudaliar and others.
FAMILY DISPUTES AND PARTITION
Family disputes and Partition: Joint family property can be divided in the following ways:
- Amicable Agreement
- Forced Settlement – By Court/Arbitration
Family structure – An amicable family arrangement is possible. According to terms and conditions that have been mutually agreed upon, the members bargain and settle for their share. The family agreement may be written or verbal. The family arrangement can be reduced in writing and need not be registered if it is simply a record of what has been established. However, if the document is going to be used as proof of a settlement, it must be registered. When the partition occurs with mutual consent, a partition deed may be put into effect. The share of each co-owner is expressly stated in the partition deed. Stamp duty has been paid and the deed has been recorded. S. Shanmugan Pillai & ors. vs K. Shanmugan Pillai & ors.,1972 AIR 2069
If a dispute cannot be resolved amicably, a partition suit is brought, and a resolution is reached through court intervention. The court has the authority to physically divide the property or allocate the sale proceeds. Court processes can be resource-draining and time-consuming. It is preferable to resolve conflicts out of court. Each co-share owner is calculated, either by mutual agreement or by the appointment of a local commissioner by the court.
PARTITION IN THE CASE OF HUF
Hindu Undivided Family is a concept where all the members are lineal descendants of a common ancestor. All have equal rights on the property People apply for HUF status to receive tax advantages. Unless the contrary is proven, the assets of a HUF are presumed to be joint property. Only members with a maximum of four generations, or coparceners, may request partition. Both married and unmarried daughters may be coparceners. All assets are split evenly among all the members throughout the division process. A property within a Hindu Joint Family is split in accordance with The Hindu Succession Act, 1956. While the Hindu Undivided Family (HUF) and the Hindu Partition Act of Property, 1892 govern the split of jointly owned property by two or more co-owners. As soon as an Indian partition suit is filed, this process begins. According to Indian property law, when a decision is reached about the division of property, it is either divided by mutual consent of the parties or, in the event of disputed issues, the matter must be resolved through litigation with the assistance of property lawyers.
The judge evaluates each co-claims sharer during a court hearing in order to issue a ruling that would award each co-sharer their proper shares in accordance with The Partition Act of 1893. The partition law in India suggests that an ancestral property can be divided in the case of a combined family on the basis of creating a family partition agreement, commonly known as the Partition Deed. According to the personal inheritance rules associated with Hindus, Muslims, and Christians, a partition deed is made, and as a result, the family’s property is divided. A direct descendant of the same ancestor is a coparcener of the ancestral property.
The division of ancestral property with shared ownership is done in accordance with Indian law regarding property division, or one can come to a negotiated agreement. Co-owners of the property or coparceners are those who claim ownership interests in it. The eldest family member and three generations are included in a coparcenary; nevertheless, a member of the coparcenary may sell their stake to a third party. Additionally, a coparcener may bring a deed of partition action against the coparcenary property with the intention of dividing ownership among co-owners rather than among members. These days, even daughters can act as coparceners and demand that their father’s home, company, or other property be divided. According to Indian property law, a family settlement, a partition deed, or a lawsuit seeking partition may be used to execute the division of ancestral property. Additionally, it should be emphasized that self-acquired property in India cannot be divided while the person is still alive; nevertheless, self-acquired property that is acquired after the individual’s death becomes a component of the ancestral property. However, the self-acquired property may be granted by the owner through his or her will to anybody the owner chooses.
The Partition Act ( 1893 ) permits one of asserting entitlement over his/her portions. The article’s main focus is on the fundamental laws that govern how property is divided in India and the steps one can take to handle property division disputes amicably and successfully. Each family member receives their fair portion when a property is physically divided in accordance with its Partition Deed. According to Indian property law, if the guidelines for property division aren’t followed or if an amicable agreement can’t be reached, a court lawsuit may be necessary to settle the differences. The legislation also covers the passing of property down the male line for a maximum of four generations. The Hindu Succession Act, of 1956 was amended in 2005, although sons and daughters were still subject to distinct property division laws. The most recent property law in India states that a girl child, whether married or not, shall be treated as being a part of her father’s HUF (Hindu Undivided Family) on an equal footing as a boy child. The daughter’s child may be chosen to serve as her father’s authorized “Karta,” or manager, of the HUF property.
MEMORANDUM OF FAMILY SETTLEMENTS (MOFS)
In layman’s words, a Memorandum of Family Settlements (MOFs) is a written record of the agreement between family members addressing the specifics of the division of property. It describes the arrangement between family members. It is done for both parties benefit and to avoid protracted legal disputes that cause family disputes and bad blood. With the use of this Memorandum of Family Settlements, one can avoid the inconveniences and drawbacks of drawn-out, time-consuming judicial processes. The best tool for amicably resolving family conflicts is this one. This is the best tool available for harmoniously solving family disputes. Some people confuse this with the Partition deed. However, there exists a distinctiveness between the two. Partition deeds only list the rights and titles on the property, which must eventually be registered, whereas the MOFS records the terms and conditions that have already been verbally agreed upon regarding the land. Registration is required if the MOFS modifies any rights or titles to the property.
EFFECTS OF PARTITION
- After the partition is completed, joint ownership ends, and each co-owner is now the sole owner of his or her portion and free to manage it as they see fit.
- Partition occurs when all co-owners shares are severed. It is a separation of shares when one co-owner separates while the others continue to own the business together.
- It entails the sale and relinquishment of property rights.
- The assets are divided or sold, and the net revenues are allocated.
As is well known, moral standards deteriorate where wealth accumulates. Family members and close friends have been caught off guard by the property issue, and they are determined to ruin their cordial and amiable relationships by protracted filing a lawsuit for partitions in the courts. The Memorandum of Family Settlements, which has repeatedly shown to be more advantageous in maintaining cordial relationships with our loved ones while sparing judicial time, is the greatest option for handling such family issues. The execution of the MOFS should be done carefully because the draught provisions of the MOFS will determine whether or not the registration requirement is met.
Forced partitions can result from family disputes. When two or more people share ownership of a piece of property and each desires to keep a distinct share, the property is divided. Property division has both financial and legal repercussions. In India, the Partition Act and individual inheritance laws determine how property is divided.
1. Effects of Family Disputes on the Partition of Property in India, https://www.nrilegalservices.com/effects-of-family-disputes-on-the-partition-of-property-in-india/
2. Property disputes and memorandum of settlement· in India with a view· on family disputes, https://blog.ipleaders.in/property-disputes-and-memorandum-of-settlement-india-with-a-view-on-family-disputes/
3. Partition of property, https://www.nrilegalservices.com/partition-suit/
4. Property Is The Root Cause of Family Dispute – Settlement is the solution, https://www.vidhikarya.com/legal-blog/property-is-the-root-cause-of-family-dispute–settlement-is-the-solution
5. Property Partition Laws in India, https://www.myadvo.in/blog/family-partition-a-legal-perspective/
6. Laws Regarding Partition of Property in India, https://www.legalserviceindia.com/legal/article-3273-laws-regarding-partition-of-property-in-india.html
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