Effects of Family Disputes on the Partition of Property in India

Effects of Family Disputes on the Partition of Property in India

Family disputes can lead to a forced partition. Partition of property takes place when there is joint ownership of two or more persons in property, and each of them wants to have a separate share. Partition of property comes with financial and legal implications.

The partition of property in India is governed by Partition Act and Personal laws of inheritance.

Effects of Partition:

  • Once the partition is effected, joint ownership is terminated, and each co-owner becomes the absolute owner of his share and is free to deal with it.
  • When shares of all co-owners are severed, it is partition. When one co-owner is separated, and others continue as joint, it is separation of shares.
  • It involves the transfer and surrender of rights in the property.
  • The property gets divided or is sold, and the proceeds are distributed.

Ancestral or Self Acquired Property:

The property can be ancestral property or self-acquired. Self-acquired property cannot be partitioned during the lifetime of the person who acquired it.

A partition can be effected at the instance of any one of the co-owner and consent of all is not required.

Share of each co-owner:

Share of the co-owners if not defined, needs to be ascertained during partition so that each gets the appropriate share. It is always better to take expert legal assistance to avoid unnecessary disputes.

Family Disputes and Partition:

Family disputes arise more often in case of joint family property. Partition of joint family property can be effected by:

  • Amicable Settlement
  • Forced Settlement – By Arbitration /by court

Amicable Settlement:

Family arrangement – The family arrangement can be done amicably. The members negotiate and settle for their share as per mutually agreed terms and conditions. The family arrangement can be oral or written.

If the family arrangement is only a record of what has been settled, it may be reduced in writing and need not be registered. However, if the document is to be used as an evidence of settlement, then the document is registered.  A partition deed can be executed when the partition takes place with mutual consent.  The partition deed clearly defines the share of each co-owner. The deed is registered, and stamp duty is paid.

Forced Settlement:

Filing a partition suit –If there is a dispute and no amicable solution is there, partition suit is filed, and settlement is arrived at through intervention of the court. The court may physically divide the property, or distribute the sale proceeds of the property.

Court proceedings are time-consuming and at times, a drain on resources. It is better to settle the disputes amicably out of court.

Share of each co-owner is assessed, either with mutual consent or the court appoints a local commissioner for ascertaining the respective shares.

Partition by Arbitration:

An arbitrator is appointed by all the members of the joint family to decide their share and divide the property accordingly.

Partition in case of HUF

Hindu Undivided Family is a concept where all the members are a lineal descendant of a common ancestor. All have equal right in the property. People go for HUF status to avail tax benefits. There is a presumption in case of HUF that assets of HUF are joint property unless the contrary is proved. Only coparceners, i.e. members limited to four generations can seek partition. Daughters married or unmarried can also be coparceners. When partition takes place, all assets are equally divided among all the members.   

Things to do when your home is not selling

Things to do when your home is not selling

A house is essential for a decent living. It is a part of “right to life”, a fundamental right. Investment in a house is made to create a permanent asset.

Investment in real estate is also a lucrative business option, more comfortable and predictable as compared to investment in stocks and shares.

House is put on sale for various reasons like:

  • Relocation
  • Speculative purposes
  • Financial necessity/Distress Sale

If the sale of the house is not getting any response, we advise our clients to consider certain factors as mentioned below: 

Pricing: setting the right price   

Setting the right price for home is very important and depends on the market rate. It is necessary to analyse price influencing factors such as the area where the property is situated, demand for the house whether for residential purpose or speculative investment etc. Accordingly, the price can be changed to attract the buyers and should be set to recover a reasonable amount. Reduction in price should be the last resort.

Time of sale:  Postpone the sale

There is a time when selling a house is more advantageous. It is when the demand for home is rising. Rising income, easy credit availability etc. are some factors which influence the demand for house. If the house is not selling, wait and watch the market movement. If the buyer has too many options, better to postpone the sale.

Try other alternatives: Lease or Rent

If the house is not selling, try other alternatives like offering the house on lease or rent. A tenant may be interested, and such a tenant who has a stake in the house will take good care of the property also.

Sometimes the buyers are not interested in immediate purchase as the arrangement of finance might be a problem. An offer of lease attracts such buyers as there is always an option to buy later. 

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Ensure that the sale of the house has been properly advertised to reach to the maximum number and photographs of the house show the best features.

Title of the house and updated government records:

Ensure that the house put on sale has manifestly clear title and is free from all encumbrances. This fact should be evident from the Government records which buyers do check before buying a property. The land where the house is located is not disputed.  Take care that in a housing society, the house is freehold and sale is permitted without hassles.

Incentive:

Try offering some incentive e.g. discount if payment made early or payment made in full at once. 

Repairs/ Renovation:

The house on sale must be in order beforehand.  Repairs, where ever required should be attended. If need be, parts of the house can be renovated to enhance the physical as well as the material value of the house.

Real Estate Agent

The real estate agent hired for selling the house needs to be changed. The sale may require new perspective and better professional skills. Real Estate Agent should not have any vested interest in the sale.

Relocation Companies:

In case of relocation for work, employers arrange for buyouts through relocation companies.  It can be of great help.

Legal Advice: It is always better to engage a lawyer for the brokerage contract, title search, knowing the tax implications and preparation of legal documents, in case of property related matters. Selling a home becomes smooth with right advice and strategy.

What is mutation of property and why it is important for buyers?

What is mutation of property & why it is important for buyers

From a buyer’s point of view, it is imperative that the property he intends to buy has a clear and undisputed title. The onus to verify the title of the property is on the buyer. It requires well-maintained land record/municipal records where all the past transactions related to the property title are duly recorded. It is possible if mutation is done diligently.

There are certain documents which establish property ownership:

  • Registered documents transferring the title, e.g. sale deed
  • Survey documents
  • Land records
  • Property tax receipts

Apart from the registration of documents, there is mutation also, which reveals the owner of the property. Registration is a proof of ownership, but mutation is essential as it records the ownership with the authorities.

What is mutation?

Mutation means entering the name of the owner of the property in the revenue records maintained at the local level by the State. Whenever a property is transferred,i.e. there is a change in the ownership, the name of the new title holder is reflected in the revenue records when mutation is done.

The Government maintains the record as the same enables the authorities to tax thereal property owner.

When is mutation required?

Mutation is required whenever there is a change in ownership effected by:

Is it necessary to get the mutation done?

There are two types of mutation:

  • Mutation of agriculture land
  • Mutation of non– agriculture land

In case of agriculture land, mutation is necessary as the title passes to the new owner, only after mutation. If the Government acquires such land, the compensation is paid only to the person who is the owner as per land revenuerecord.

In case of non-agriculture land, the title of the owner is not affected if mutation isnot done. However, for payment of municipal tax, electricity connection, waterconnection, mutation becomes necessary.

How is mutation done?

An application is made to the Tehsildar with court fee stamp affixed on it. The documentation and fee for mutation differ from State to State.

What is the importance of mutation, especially for a buyer?

Since the onus to verify the title of the property is on the buyer, mutation is of greatsignificance to him. It is essential to get the mutation done because:

  • The Government looks into the land records to verify the actual owner for imposing taxes and for awarding compensation.
  • Mutation shows possession of the property.
  • Mutation is vital for further sale of the property.
  • Mutation helps to prevent the fraudulentsale by seller to more than one buyer.
  • Mutation helps the buyer to ascertain that the property is free from    encumbrances or if there is any liabilityto be incurred by him. 

However, mere mutation does not confer any title. Mutation is invalid if the document transferring the title is not registered as required in law.

It is important to note that mutation is not a onetime process. It needs to be doneregularly to ensure that the property record is clear.

It is always advisable to take legal help from lawyers to effect any transfer of property to avoid legal ramifications later and to ensure that all legal formalities are complied with. Lawyers can provide legal advice and assistance in case of mutation or for cross-checking the revenue records in case of purchase/sale of any property.

Why You Need Property Management Lawyers in India

Property management lawyer in India

Over the time, we have seen NRIs struggle with various property disputes such as illegal occupancy, transfer of assets, inherited and gifted assets, and much more. They face issues related to ownership or some other related matter such as registry details, the status of the title, etc. and then they seek legal advice to find the best suitable solutions.

What they are not conscious of is that these matters are part of the management of property and they should take help of Property Management Lawyers. Asset management includes operation, administration, and control of residential, industrial and commercial real estate along with maintaining updated documents and knowing the history of the concerned property ownership.

It’s the duty of the Property Management Lawyers to look after all the aspects related to Property Management. It is imperative to understand what a property legal representative can do and what are his responsibilities towards his client.

Property Management lawyers India

Services provided by Property Management Lawyers

In the case of Renting of the property:

  • Advertises about the asset for tenancy and then show it to the prospective tenant.
  • Handle the lease, collect and adjust the rent as the estate market
  • Deals with the complaints of the tenants
  • Deals with the eviction of the renters
  • Maintain and make repairs to the estate and keep it in proper shape even after leasing it
  • Make it sure that property is with compliance of government rules and regulations
  • Serves as a liaison between tenants, site personnel, and landlords

In the case of buying a property or inheritance or gifted assets:

  • Make sure to help trace the previous and current ownership records
  • Assist in finding the details of land registry that may be lost or not properly maintained
  • Help in transfer of the deed in your name by helping in getting the clear title deed and all the updated documents from the current or the previous property owner
  • Contribute in interpreting the documents in understandable language or English.
  • Validate the accuracy of the record by making a formal request under Right to Information Act (RTI)
  • Assist in finding and identifying the property using the old address if the address has been changed.

Role and Responsibilities of Property Management Lawyers

The Role and Responsibilities of the Lawyer are to –

  • Give legal advice on all the aspects of property management such as market value of the property, tax benefits, restrictions laid by the government, etc.
  • Specify all the terms and conditions of the sale as well as in purchase deed clearly and as per the law related to contract and agreement.
  • Deal with the matters relating to title deed, tenants, eviction.
  • Make the transactions related to the property.
  • Solve the issues with the deed and any property dispute.
  • Resolve the problem of trespass, encroachment, injuries, and boundaries.
  • Help in preparing and evaluating the draft deeds, other documents and then filing them.
  • Register all the documents with the proper authority and check if any adjustment is required.
  • Help the clients with title deed problems, insurance, and environmental issues.
  • Make sure that the inspections and appraisals are done on time.
  • Evaluate the purchase agreements and leases.
  • Review all the transactions done by the client.
  • Represent his client in the court when required.
  • Participate in the hearings and the trials.
  • File appeal if necessary.
  • Negotiate and bargain or make settlements on behalf of his client.

 

Common situations where one need Property management lawyer

Property Management Lawyer

Common Queries

My name is Vikram Khanna, and I am a non-resident Indian (NRI.) My father had purchased property along with his elder brother somewhere in Rajasthan. My father and my uncle owned equal parts of the land. My father died two years ago, and as per his will, his portion of land was transferred to me. I want to use the land to make an apartment. However, I don’t have complete information about the whereabouts and the condition of the property. Also, my relatives have refused to share any information with me. Someone suggested me that I should seek help from a Property Management Lawyer. How can he help me? What should I do to tackle the situation? How long will it take to claim the land? Kindly explain.

My name is Ayesha Khurana, and I am a non-resident Indian. I have filed for divorce from my husband a month back. While sharing details for alimony settlement, he mentioned he owned a piece of land in India. However, as per my knowledge, he owns two pieces of land back there. He is not divulging any details of the other piece. But I want to know everything about that piece of land as well so that I can make sure that I am getting my fair share. What should I do to get the necessary information? Whom should I contact? Kindly explain.

The cases mentioned above are quite different, but the basic solution is the same for both. Both the issues require Property Search service.

The Property Management Lawyers provide such Property Search service.

The most common problems that NRIs face, when they own property in India, are:-

  • Either they don’t have the necessary details and documents that are required for entitlement of the land
  • Or if they have all the documents, they just haven’t updated them or haven’t authenticated the title deeds or checked the reality of the property.

This negligence on their behalf causes them to face issues and problems such as transfer of assets, illegal possession, the sale of land, etc.

Thus, the property management lawyers help them to tackle the situation. They provide assistance wherever required and handle the situation without asking the client to be present physically. They take the following actions:-

  • Trace ownership records, which aren’t easily traceable.
  • Find the land registry details, which are usually either lost or not maintained properly.
  • Help in attaining updated documents and clear title deed of the previous property owner or the current owner. Once all of this is sought out, one can transfer the deed in his name.
  • Understand and translate the documents written in local languages to English.
  • In the case of a fraudulent activity such as transferring the land illegally or carrying out an invalid sale or exchange of the property, apply for and retrieve the old documents to know when and how the fraud was committed.
  • Make formal applications under Right to Information Act (RTI) to validate the accuracy of the papers.
  • Identify the property using the older address in case the address has been changed.

Clearly, the most appropriate way to handle the above mentioned situations is to hire Property Management Lawyers as they’re expert in this field and know what should be done, how and when to provide the best suited solution.