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.
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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.