Filing partition of property with joint owners in your absence can become a nightmare, Beware!

Life is very hard for some people. When a person goes through a lot of financial hardships, getting a property worth crore of rupees is nothing less than bliss.

Can we imagine cases, where people are not even aware that they are being duped by their own siblings or close relatives ?

We were approached by a person who had gone abroad many years ago. After the demise of his father, he and his mother had faced a lot of hardships in life. Their relatives informed them they have some property in India and they are filing the partition of the same to give them their share. They were happy to hear the news and gave the power of attorneys to do all the partitions on their behalf.

Since they never been to India from a long time so they had no idea about the actual value of the land and property. They were shown a rosy picture by their relatives and they fell into the trap. Anyhow somebody told them about our firm and they came for a free legal consultation just to check on whatever they are being told by their relatives is correct or not.

Our team did all the appropriate research work. We carried massive search to inquire if any joint ownership existed in the client’s father’s name. We ultimately got the success. The property was found. Partition was done among the co-owners and shares were transferred to legal heirs but to our shock the whole partition was biased. Their relatives took all the expensive chunks to themselves and gave them the least valued portions.

We immediately took the actions and devolved all the partition their relatives had done. It was a massive work that our team did by making several applications and explaining the ill intentions their relatives had. After that, we filed the new partition where everybody got the fair share of the land and property.  The family received their rightful share worth crores of rupees.

How do you approach partition of joint property?

Immovable Property is generally owned jointly. Joint property means a property where more than one party is the owner of the property.

Arising of disputes is inevitable in such properties. Partition is a solution. It is a division of property as per the share of each co-owner. Partition of joint property can take place by:

  • mutual understanding among co-owners
  • demanding one’s share

For partition, we need to know our share in the joint property. Share can exist due to inheritance or through some title document (sale deed, will etc). In the absence of clear title, other documents like land records, tax receipts, survey documents, help to prove a title.

What about certified copies of the documents related to property?

If a party has no document available with him, he can file for inspection of documents in the Registration Office where the property is located and get the certified copies of certain documents.

  • Shares in joint property:

Till the time property is joint, shares of co-owners are undivided. After partition, each co-owner gets a share in the joint property as per his entitlement according to the law.  Law of inheritance is also applicable when partition takes place. Each co-owner becomes the absolute owner of his property (share). He is free to dispose of the property.

  • Partition deed for smooth partition:

A partition deed, drawn in a clear and unambiguous manner, executed on a stamp paper is required to be registered at a place where the property is situated.  Names of the parties and their respective shares need to be clearly mentioned. It must carry the date from which the partition will be effective

  • Partition by Family Settlement Agreement:

The partition can take place through a family settlement agreement. It is drawn on the same lines as a partition deed but does not require any registration or stamp duty. It need not necessarily be a written document, can be oral based on mutual understanding.

  • Partition by filing suit in court:

Here, the court determines the share of each person and property is divided accordingly. It is filed in the court which has the jurisdiction in the area where the property is located.

Why do you need expert guidance?

Generally, the partition is not very easy as the shares in the property are not well defined.  A partition deed executed under expert guidance and legal advice helps to sail through such problems.

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.