There are several types of property dispute. Most of the disputes pertain to the title of the immovable property. Saying that ‘a person has a good title over the property’, implies that such a person has a right to enjoy the rights or interests in the property, possession, use, income by way of rent, etc. Dispute pertaining to a property, often arise through claims from legal heirs, co-owners, disputes over easement rights, wrong representation by the seller, improper description of the property in the title deed, etc. Hence the need for the property dispute lawyers have been increasing and the need for the best lawyer for property disputes are arising for their clients to get the right title of their property.
As much as the property is deemed to be a valuable asset that everyone is seen aspiring and vying for, it’s also often the root cause of conflicting circumstances that arise amongst family members.
People are seen battling with their kith and kin over even petty, not to mention far more crucial issues that arise as a result of faulty or flawed inheritance or marriage falling apart.
Also, before dealing in any property , reading articles from the property dispute lawyers may help you save your headache from all the conflicts that arise later.
One of the most cherished assets that majority of people aspire for is property and it takes a lot of effort besides investment of resources to acquire a piece of real estate. No matter how careful an individual may be, there may be circumstances which force them to search for property dispute lawyers.
Below are the four essential tips from the best property lawyers to avoid family conflicts
1.Selection of the Executor of the Will
The vast majority of litigations arise between kith and kin or relations owing to inheritance. Experts are of the opinion that in most cases it’s not as much about the will that is the root cause of the problem, rather, it’s more about the way of execution of the will that may have led to the conflict in the first place. The vast majority of property owners commit the flaw or mistake of handpicking and designating an executor solely based on the fact that the person may be a prospective inheritor without any prior assessment of whether or not the chosen person fulfills the eligibility criteria of an executor of the will. While designating a designated executor, ideally, a neutral person who does not have an ax to grind from the will as such or can stake their claim; essentially a person who would be unbiased or neutral. An honest, diligent and hardworking person with integrity who would execute his or her assigned duties and responsibilities efficiently and be able to instill confidence amongst inheritors.
2.Selection of the Co-owner
Purchasing property jointly with relatives is common, and the reason for such investments are usually because of a tax rebate, e.g., less tax for female buyers. However, people must proceed with extreme caution while deciding to buy or own property jointly with any family member, especially for NRIs, because mostly they stay abroad and possession remains with the other co-owner who generally takes care of the share of the property on his behalf.
3. A No-contest Clause to be included in the Will
As already mentioned, an inheritance that isn’t well chalked-out is, in fact, the root cause of the vast majority of once closely-knit families disintegrating; siblings in particular. A well-documented will with a detailed explanation of the asset distribution amongst their siblings or next-of-kin along with the inclusion of a no-contest clause as suggested by some property dispute lawyers. The Best property lawyers ought to advise their clients properly regarding the relevant laws of the jurisdiction of their residence.
4.Avoiding Disputes Related to Divorce Through a Prenuptial Agreement
As a preventive measure, a prenuptial agreement prior to the marriage being solemnized is a step in the right direction towards avoiding problems related to asset distribution. There could be an agreement amongst parties as to the distribution of valuable assets owned singly or jointly by them should they get divorced. A prenuptial agreement (“prenup”) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.
A prenuptial agreement (“prenup” for short) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.
Issues requiring the engagement of property dispute lawyer can be stressful and taxing and therefore individuals must take all necessary precautions before buying or renting a piece of real estate. Engaging a legal advisor before moving ahead with such a transaction will always be helpful in avoiding any hassles in the future.
It was held in the case of Raichand v. Dattatrya that “the term property in its most broad sense covers all legal rights of a person save his personal rights, which define his position or personal situation.” The Supreme Court of India interpreted the idea of property in the case of R.C. Cooper v. Union of India. The Court emphasized in this decision that the term “property” covers both corporeal objects like land and furniture and incorporeal things like copyrights and patents.
There are several laws in our country dealing with property and its distribution. Some of them are the Transfer of Property Act of 1882, the Partition Act, the Indian Succession Act and The Hindu Succession Act etc. However, we must remember that India is a country of diverse religions and communities. Hence, people belonging from different religious background have different laws applicable on them for division of properties. For example, if you are a Hindu and want the Partition of Property among family members, you have to abide by the provisions of Hindu Law for property distribution.
Similarly, if you hail from religious communities like Christianity and Islam, you must follow the rules propounded in Christian and Mohammedan Laws for partition of properties. Property Partition law in India is a vast topic, read on to gather in-depth knowledge about property law in India as well as property distribution law in India and how it influences the partition of property among family members in India.
Partition, according to Black’s Law Dictionary, is the division of lands owned by joint tenants, coparceners, or tenants in common into different sections in order for them to possess them in severalty. It refers to the partition of real or personal property among co-owners or co-proprietors.
There are several laws in India that deal with property, as follows:
According to the Partition Act, in the event of a partition suit, if the Court determines that the partition of the property cannot reasonably occur or that the sale of the property is more beneficial, the Court may, at the request of the shareholders interested, direct the sale of the property and distribution of proceeds.
The family property partition law in India states that any other shareholder may seek permission to purchase the parties’ shares, and the Court may then provide a valuation and sell the property to the applicant. The Act sets specific regulations for what happens if two shareholders disagree. The terms of the Act also address the rights of a family member to acquire the portion of a stranger ‘suing’ for division.
Section 9 of the Act empowers the Court to divide the property evenly, sell reminder property, and distribute the revenues. Various proposals for amending the Partition Act of 1893 were presented in the 86th Law Commission report, however the revision has yet to be implemented.
The Indian Succession Act addresses both testamentary succession and intestate succession. Testamentary succession is the process by which a person specifies in a written document known as a “Will” to whom his property will pass after his death. In the absence of such a written instrument, the deceased’s property would be allocated according to his religious law, a process known as Intestate Succession.
If no personal law applies to the individual, the Indian Succession Act takes effect. Similarly, the Indian Succession Act applies to Christians for both types of successions, but the Indian Succession Act applies to Buddhists only for Testamentary Succession rules.
In the case of Christianity, the religion of the heirs is irrelevant, but the deceased must have been a Christian on the day of his death. Furthermore, an adopted kid will not have the same rights as a biological child.
As the name implies, the Hindu Succession Act governs Hindus. The Act states that a person who changes to another faith can still claim his part of the family property. However, this was not the case previously. Previously, if a person left the Hindu faith or converted to another religion, he could not claim his title to ancestral property, but the Caste Disability Removal Act changed that, and such people are now under-protected by the law.
Unless they were Hindus at the time the succession opened, the descendants of the converted individual do not have the title to the ancestral property.
In the case of Shabana Khan v. D.B. Sulochana and Ors., it was determined that the converted individual can still claim his title to ancestral property, but his kid cannot.
As far as Islamic law for property distribution is concerned, when both partners are Muslims, the Muslim Personal Law (Shariat) Application Act applies. Even though the son has changed to a different faith, he is the biological son with a claim to the family property. Besides, the Islamic law for property distribution in India also provides that if a kid is born outside of marriage, he has the right to claim ancestral property.
What kinds of properties are partitionable?
The land partition rules in India alongside Indian Property Laws states that there are two sorts of properties that can be partitioned:
Self-acquired property is defined as property bought with one’s own hard-earned money and not inherited from one’s forebears. Furthermore, any property obtained through gift or will is considered Self-Acquired Property. Self-acquired property cannot be divided throughout the lifetime of the individual who obtained it. During his lifetime, the individual who has acquired the property might form a Will specifying who he wishes to inherit his property from. If the property owner dies without leaving a will, the property passes to his Class 1 heirs. However, in the absence of a will, the personal law of deceased will come into play as property distribution law in India amongst the family members and relatives are closely associated with personal law of deceased and thus there is Hindu law for property distribution and there is Islamic law for property distribution and there is Christian law for property distribution and so on and so forth which will come in to play.
Ancestral property is defined as any property gained by a person’s progenitors. A property of this kind must be four generations old. A person born in that family has a vested interest in the property, which implies he gained it by virtue of his birth in the family, and such property can be partitioned.
“The right to forcible division is a common law gift granted to all coparceners. “This right exists not by decision, but by God’s mercy (vested interest). As a result, such a right must be honored,”
Methods for Dividing Ancestral Property
The procedures for partitioning an Ancestral Property are as follows:
Property can be divided by mutual consent through a partition deed or a family settlement.
Deed of Partition
The partition deed distributes the property among the co-owners. This deed is produced to divide the land so that each individual has indisputable ownership to his or her own portion of the property. The division deed is carried out by the co-owners. This is accomplished by dividing the property into equal shares for each co-owner as per the partition law in India. This does not imply that the property would be shared evenly. The division is mandated by legislation.
Acts that control partition by partition deed
Where there is no unique legislation controlling that particular faith, the partition by deed is controlled by the various religious acts or the Indian Succession Act. For example, if you belong to the Islam religion, you need to follow the rules laid down by the Indian Muslim law for property distribution. With the execution of the Partition Deed, each co-owner becomes the absolute owner of their half of the property and can dispose of it as they see fit. This implies they may sell, transfer, or give it to anybody they wish.
The deed must be recorded and executed on stamp paper in a clear and unambiguous way, detailing the portion assigned to each co-owner.
“The purpose of partition procedures is to allow people who possess property as joint owners to end it so that everyone has a solitary estate in a specific property or an allotment of the lands.”
Family Agreement
Property can also be distributed by family settlement if the family does not want the Court to become involved; instead, they negotiate and settle the situation. The family settlement agreement does not have to be on stamp paper or registered. It does not have to be written, but it must be completed to the satisfaction of all co-owners.
Before filing a partition suit, a legal notice must be sent to all co-owners outlining their interest in the property, their portion, and the action to be taken, as well as an attempt to resolve the disagreement. Even if the matter is not resolved, a civil complaint is filed with the Court.
Limitation Time: According to the Limitation Act of 1963, the limitation period for filing this complaint is twelve years from the moment the defendant’s ownership became adverse to the plaintiff. The opposite party, however, bears the burden of establishing that the claim is time-barred.
Court Fee: The Court decides the court costs based on the value of the suit, and the court fees must be paid before the suit may be filed. The price varies depending on the case and the corresponding state jurisdiction.
Time Involved: The time involved in a partition litigation cannot be determined since it is entirely dependent on the facts of each case and the difficulties involved.
Probate is a certified copy of the Will under the Court’s seal. Probate can only be granted to the executor named in the Will, according to Section 222 of the Indian Succession Act of 1922.
Following the filing of the petition, the Court publishes a notice in any major newspaper inviting objections. If there is no opposition, the Court grants probate after reviewing the facts.
Limitation Time: The limitation period for filing a probate petition is three years from the day the cause of action or right accrues, according to Article 137 of the Limitation Act of 1963.
Court Charge: Depending on the facts of the lawsuit and the state jurisdiction, a court fee must be paid.
Time Involved: There is no time limit established in any legislation as to when the suit must terminate. It is entirely dependent on the facts and circumstances of the case, as well as the technicalities involved.
Partition Suit
A Partition Suit is filed when a party or parties claim rights to a piece of land or building and file a case in court as a result of a family property dispute. If family members are willing to discuss property division, a Partition Deed must be drafted in accordance with the Partition Act of 1893. It is an official document that is established either by Court Order or via the parties’ dialogue. It specifies the parts of the property that each party would be entitled to. A division deed must also be approved by the Court. To have legal and binding effect, this new division deed must be registered with the Sub-office. Registrar’s The deed must then be recorded and drafted on stamp paper in a clear and unambiguous way by the party or parties. It specifies each person’s portion as well as the date of the division property. If the families still need to resolve this in court, they must file a Suit of Partition at the court where the case will be heard.
Partition law in our country is one of the most complex statutes. Besides, it has many amendments, making it a very complex subject with various nuances. If you need guidance on the matters regarding the Partition Act, 2013 or anything else, taking professional help would set you up for success. So, go ahead and act accordingly.
Hope the above article gives you some clarification on the Property law of India as well as Partition of property among family members and property distribution law in India. This Article is written by Mr. Pankaj Ailani, an Intern with our law firm, under the guidance and supervision of the Seniors of the Firm.
The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at admin@rksassociate.com