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.   

Impact of divorce on joint property in India

Impact of divorce on joint property in India

At the time of divorce, couples are often confused and uncertain about the division of property held jointly by them. The problem arises because eventuality of separation is not contemplated while purchasing jointly and there is no proper documentation.

Matrimonial responsibilities are no longer a domain of any single spouse. Both have to participate equally. Joint ownership of husband and wife, in property purchased after marriage, is a common feature. There are various reasons for preferring joint ownership in property.

  • Rebate in stamp duty for women investors
  • Tax benefits associated with joint ownership
  • Loan eligibility increases and repayment process become easy

When couples decide to part away, there are many issues to be addressed and the most important being the division of joint property. 

Many times, estranged couples have approached us to find a solution to their problem of division of property. We generally advise them to decide the same with mutual consent because litigation in this regard can be quite toiling.

Division of property at the time of divorce:

1.    Division by mutual consent: Division of property held jointly, can be smooth if there is a mutual understanding among the two for:

  • Ownership
  • Equity
  • Contribution

The partners get their share as per the equity/contribution.

2.    Proof of Contributions made for the purchase of property: The person who holds the title is the owner even if the other partner has contributed the purchase money in total. The other partner has to prove the financial contributions made by him to get the due share.

3.    Self-acquired property or inherited property: The self-acquired property is not part of any settlement at the time of divorce. The property to be inherited in the future does not become part of the settlement.  If the ancestral property has been partitioned or has devolved as per succession law and husband or wife have got their shares, then such property becomes self-acquired property qua the spouses and is not subject to settlement at the time of divorce.

4.    Joint loan: If the joint property has been bought on loan payable by both, then the parties have to split their liabilities accordingly, or one partner can bear the loan amount and be compensated by other.

5.    Disposal of joint property as per Section 27 of Hindu Marriage Act: The Hindu Marriage Act, 1955 contains a provision u/s 27 of the Act, for disposal of property presented jointly to the spouses, at or about the time of marriage. Joint property purchased after marriage is outside the purview of this section. However, if the parties have reached a compromise regarding such properties, Court may record the same at the time of passing the decree.

6.    Maintenance: Right to maintenance includes right to residence also after divorce. However, the right depends upon the terms of the decree of divorce. In Hindu law, any party can apply for the grant of permanent alimony and maintenance pendent lite. 

The amount of maintenance if not paid as directed, can be recovered from the property of the person liable to pay the same.

Smooth Sailing:

  • It is always advisable to engage a lawyer and prepare the documents relating to purchase of the property taking care of all reasonably expected eventualities. Proper documentation defining the claims based on equity makes division an easy affair later.
  • Selling the property and sharing the proceeds is also an option.
  • In case the joint property is a dwelling house, one can retain the house, and other can be compensated monetarily.

Can you sell your share of an Inherited Property?

Can you sell your share of an Inherited Property

The question of selling a share in an inherited property arises when you inherit a property jointly with others. There is joint ownership, and there are co-owners. To determine the share of each co-owner, we need a partition deed.

After the amendment in the year 2005, in Hindu Succession Act, 1956 the interest of deceased Hindu, shall devolve by testamentary or intestate succession as per the Act. The law of intestate succession is more appropriately the law of inheritance.

The self-acquired property can be bequeathed by will by the owner to anyone even to the exclusion of legal heirs, but the ancestral property devolves as per the law of succession.

Types of co-ownership

Co-ownership can be:


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  • Tenants in common – Share of each co-owner is not specific. When one co-owner dies, his share passes on to his heirs as per his will or intestate succession. The heirs become tenants in common with other surviving co-owners
  • Joint tenancy – Each co-owner owns an equal share in the property. When a co-owner in joint tenancy dies, his share passes to surviving co-owners. There is a right of survivorship.
  • Tenancy in entirety – A particular kind of co-ownership where husband and wife share equally. None of them can sell the property without the consent of other.

Unless expressed, in the document of title to the property, the law presumes co-owners to be tenants in common u/s 19 of Hindu Succession Act, 1956.  It means no right of survivorship.

Rights of Co-owners

A co-owner has


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  • Right to use
  • Right to possession
  • Right to dispose of off his share in the property (with or without the consent of other co-owners as provided in the document of title to the property)

Division of share of co-owners by partition

The shares of the co-owners are undivided. A partition deed is required to divide the property among the co-owners so that each co-owner gets his share to which he is entitled to as per law. Partition can be

  • By mutual consent
  • Through court by filing a partition suit.

A co-owner’s share in property is inheritable and transferable.

Undivided share of co-owners

The co-owner can sell even his undivided share in the absence of any partition deed. The buyer of the share steps into the shoes of the co-owner. He can enforce partition. He acquires the rights of the transferor.

Do we need the consent of other co-owners to sell the share in an inherited property?

According to the Transfer of Property Act, every co-owner has a proprietary right of the entire property. The sale has to be made with the consent of all co-owners. But if there is an agreement that gives the co-owners exclusive rights to certain parts/portions of the property, a co-owner can sell his portion.

However, if the dwelling house is the subject matter of sale, then

  • All co-owners who jointly own the house must give their consent.
  • The transferee does not get the right to joint possession with other co-owners.

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Generally, co-owners are free to transfer/sell their share in the inherited property. However, one co-owner cannot transfer the share of other co-owner without permission.

Selling the share in inherited property involves an understanding of the nature of co-ownership and rights of all co-owners. Partition deed is required to determine the share of each co-owner, with clarity.

Family settlement for property disputes in India

Family settlement for property disputes in India

Introduction to the legal aspects

Wars over wealth/ancestral property have been present forever whether it is low-income households or ultra-rich families. Therefore property disputes are frequent in India. The most normal solution to such conflicts is to drag the matter to courts instead of opting for a simple family settlement. People rarely realise that court cases are a tedious and expensive process and satisfactory resolutions courts rarely guarantee a satisfactory resolution. Therefore it is advisable to always opt for a family settlement on the property.

What is a family settlement?

  • It refers to the adjustment that family members make in order avoid court disputes and amicably divide the family property with shared understanding.
  • The parties must be related to each other and have a right to a share of the said property.
  • The latter is not just limited to real estate, but can also claim his/her right on the movable assets like jewellery or money in bank accounts.

What does partition through family settlement connote?

  • A family settlement agreement is made in the same format of a partition deed.
  • It does not need registration and stamping.
  • It must be signed by all the members of the family voluntarily, without any fraud, coercion or pressure from any family member.
  • It does not necessarily have to be drafted in a written document.
  • It can be executed either by a compromise or by a mutual understanding between the family members.

Why is family settlement better than court settlement?

  • It is better because one can avoid protracted, public and messy court battles.
  • It is also quicker and a more harmonious way to resolve disputes.

What is the Procedure?

  • A family settlement is a peaceful process where a third person, mostly a lawyer or an older family member, helps the family arrive at a jointly peaceful solution to the property dispute.
  • A family settlement can also be a series of documents spelling out the property rights of each of the family members.

What about self-acquired property?

  • A person cannot execute self-acquired property during the lifetime of a person who had acquired it.
  • However, the self-acquired property automatically becomes a part of the ancestral estate on the death of such person. Hence the person can distribute the self-acquired property through his/ her will to any person he wants.

These are the basics of issues related to Family Settlement for Property Disputes – more about this in another article in the coming days.

How to get divorce without mutual consent in India

How to get divorce without mutual consent in India

Some people fulfil their vows and stay together till death does them part, many don’t. A harsh truth about India is that parents are eager to marry off their daughters to NRIs, assuming these to be better, but not many to these marriages stand the test of time and end up in divorce, and the spouses going their separate ways. NRIs can either file a divorce in India or they can file it in the country that they reside in.

How to get Divorce in India

All the grounds prescribed in the personal laws are available to NRIs and citizens residing within the territory of India alike. Common grounds for Divorce found in Hindu Law and Special Marriage Act, 1954 alike are Adultery, Desertion, Cruelty, unsoundness of mind, etc.

Usually, it is not necessary for NRIs to stay in India till the divorce is finalized, they can execute a Special Power of Attorney (PoA) in favour of another person once the presentation of the plaint has been done. But, in order to give evidence, it is important that the person be present during the proceedings.

How to get a divorce in a foreign country where you reside?

The Indian Legal system does not recognize an Ex Parte divorce, thus, it has to be a divorce by mutual consent.

One can file for a divorce as per the foreign marriage laws prevailing in the country one resides in. After that, a declaration has to be sought in accordance with the Family Courts Act to make the judgement which has been passed by the foreign court valid in India. This declaration can only be sought which has the jurisdiction to try that particular case.