There are many instances of family disputes over the property in India. This is something found commonly in every stratum, be it poor or rich. The ultimate option to settle such conflicts is to take the matter to the Court.
There are many types of property disputes faced by many families in India. These may arise between siblings, heirs, and co-owners. There may be disputes related to the ratio of property distribution, will, easement rights, the bad title of a property, and more.
There are many laws that the constitution of India has provided for handling such matters. Here are some important family property distribution laws:
Partition Act, 1893
- Under the act, if there is a suit for partition, if the Court finds that the property’s partition cannot happen due to some reason or sale of that property is more beneficial, the Court may direct the property’s sale and distribution of proceeds on request of the interested shareholders.
- It provides that any of the shareholders can ask for leave to buy the other parties’ shares, and the Court may then offer a valuation to the concerned party and sell their part of the property to the applicant.
- The Act also comprises detailed provisions if there is a disagreement between the shareholders.
- The Act has provisions that give the family members the right to purchase the share of the stranger ‘suing’ for the partition.
- The Act’s section 9 gives the Court the power to distribute the property equally among the family members, sell the remaining property, and distribute the proceeds.
The Act was reported to have gaps under the 86th Law Commission report on the Partition Act, 1893, and various suggestions were made to amend it. However, the amendment is yet to be made.
Indian Succession Act, 1925
- This Act deals with two types of succession, them being testamentary succession and intestate succession. Testamentary succession is wherein a person makes a ‘will’ (a written document specifying whom their property will be transferred to after their death). If there is no will, the deceased’s properties are distributed according to their religious law called intestate succession.
- This Act is applicable if there is no personal law applicable to the concerned person. Similarly, this Act is applicable to Christians for both types of successions, while for Buddhists, only testamentary succession laws are applicable.
- In the case of Christians, the religion of the heir doesn’t matter, but the deceased must be a Christian on the date of their death. Also, under this Act, the adopted child won’t have the same right as the biological child.
Hindu Succession Act
- Under this Act, even after the person has changed their religion from Hinduism, they can still claim their share from their ancestral property. This kind of flexibility was not in the Act before, but it has now been amended.
- Under this Act, the descendents of the converted don’t have any right over their ancestral property unless they were Hindus at the time of the succession’s opening.
Muslim Personal Law (Shariat) Application Act, 1937
- This Act is applicable when both the parties belong to Muslim religion.
- Under this Act, the biological son of the person has the right to claim their property even if he has changed his religion.
Ways To Resolve Property Disputes In A Family
If you are thinking of how to resolve property disputes in family, or property dispute cases between brothers using other methods, here are some resolutions:
- Family Settlement
To avoid going to the Court for family disputes over property, the property can be divided among the members through family settlement. Herein, the family members can negotiate and settle the dispute. It is not necessary for the family settlement deed to be registered or be on a stamp paper. This way only focuses on complete satisfaction of the members.
2. Partition Deed
The partition deed divides property between its co-owners. A deed is prepared stating the share of each co-owner, giving them an absolute title over their part of the property. The co-owners execute this partition deed on their own. The division is done on the basis of the share of the co-owners. It is done according to the law.
3. Will Probate
A probate is a copy of the will certified under the Court’s seal. It can be granted only to the executor under the will (section 222 of the Indian Succession Act, 1922). After the petition is filed, the Court releases a public notice in leading newspapers inviting any objection. If there is no objection, the Court considers the evidence and grants probate.
As per Article 137 of the Limitation Act, 1963, the limitation period for filing a probate petition is 3 years from the date when the cause of action or the right accrued. For a probate, a Court fee needs to be paid; this depends on the facts and the state jurisdiction of the case.
There is no specific time mentioned under the act as to when the suit ends. It depends on the facts and the whereabouts of the case.
Property Partition: Common Misconceptions
There are a lot of misconceptions related to family disputes in India. However, the most common are the following:
- Many people have a misconception that a will is necessary in case of an ancestral property. Herein, partition is done according to the laws of that particular religion. A will cannot be made in such a case; however, a will can be made in the case of self-acquired property.
- Another misconception among people is that only the nominee can become the owner of the property once it is transferred to them, but it is not so. A nominee is only a trustee of the property. They are just appointed to do all the work on behalf of the person who nominated them and is now deceased.
There are many people who have doubts on how to resolve property disputes in India. While many settle the matter amongst themselves, others seek legal advice on property disputes. Many people don’t know property related disputes are settled in which court. In such cases, it is best to consult a lawyer.
If you are a resident of Chandigarh, Lex Solutions is a reputed property law Firm thatcan you can find many reputed property lawyers who can offer you the best resolution in any property dispute you might have been facing. There are experienced lawyers who are easily accessible and offer the best guidance. You can check them out online or visit them.