Most of the overseas persons of Indian origin need to partition their jointly inherited properties in India. Since the properties devolve upon them through succession rights in India, hence over time there can be several co-owners to the inherited properties. Different owners might want to control the properties in a different way and have different objectives. A complicated situation arises if an NRI happens to find himself in dispute with the person who currently has the possession of the joint property. Most likely the individual in possession would prefer to get the authority to control, manage or even sell the relevant share in the property which could be detrimental to the interest of the shareholder living overseas.
In case of a joint property, all the owners have equal ownership rights in the property in record, but their individual shares are not physically defined with separate boundaries. Joint property is the foremost reasons for feuds and disagreements amongst families/relatives. To avoid such disputes and for effective management and control of one’s own share in a joint property, it is highly recommended to divide the individual shares. This could be ancestral land, residential or a commercial establishment that has been co-inherited with siblings or relative. In all cases, joint ownership of property would put an individual in a vulnerable position and especially in case of non-resident Indians where they are not physically present in India to safeguard and protect their own interests.
Moreover because of the complexities in the law and procedures related to partition of property, they generally find themselves trapped in tedious legalities, their inability to travel to India again and again to supervise and manage their cases add to their woes while handing such matters.
Understanding Partition of Property
- Partition suit is a process by which property gets divided into separate portions.
- Any co-owner can file for partition suit even if other co-owners are not in consensus.
- Each co-owner gets a share as per his/her legal entitlement.
- Post the division, every portion gets a new title and each ‘owner’ gives up his share in the other portions.
- After completion of partition suit process, there would be complete control of each co-owner on his share in the property.
- It restrains interference by anybody else in one’s own share.
- Partitioned land fetches much better price than un-partitioned land during sale of the property
- Partition is the best remedy to get the possession back where the person in control of property is not willing to handover the possession to the actual owner.
- Each co-owner’s share is inheritable and transferable. Share of each co-owner is clearly and explicitly identified. This helps in avoiding problems in transfer, alienation, inheritance and taxation.
At NRI Legal Services, we offer one of the best platforms for comprehensive advice and representation in matters pertaining to partition. Our experience both in terms of years and number of clients puts us in an irrefutably advantageous position to provide credible services to all our patrons for any kind of partition i.e. contested or uncontested:
Contested: where all co-owners of a particular property are not in consensus for partition
Uncontested: In such partition, all co-owners of a property mutually agree to partition
Meticulous review of the information and documents provided by the client to ascertain the share of each co-owner, procuring latest and old records to substantiate the shares, effective legal representation in the case in most effective manner ensures best services exclusively to non-resident Indians in such matters. We are proficient in handling all types of partitions for any type of property i.e. agricultural land, residential or commercial property etc.
In case of division of agricultural land, the cases are filed at office of Tehsildar of the valid jurisdiction. In case of absence of family settlement, the partition is executed on the principle of good to good and bad to bad land, equally distributed which means that each co-owner is granted a share of equal value. Irrespective of mode of partition, site visits, measurement of land, preparing maps etc. hold strategic importance for effective implementation of strategy to resolve the matter in prudent manner.
In case of constructed properties, the cases are filed in the civil court of valid jurisdiction. Broadly, the process is that the court appoints a local commissioner to inspect the property. Based on submission of his report after inspecting the property, if it cannot be divided in metes and bounds i.e. into individual saleable units for each co-owner then the court might order the sale of the property and distribution of proceeds.
The procedure of partition involves both in court and out of court work. Our team of specialists in revenue law having vast experience in handling technical and complex procedures at each stage works in tandem with our network of best legal minds who are well versed with the legalities and procedures involved in handling such matters in most judicious manner anywhere in India without the need of the client’s frequent travel to India.
FAQs
Yes, a suit for partition can be instituted by a person who is not residing in India, provided such person has a right in a joint property situated in India.
Yes, a partition can be done for all types of properties, i.e., agricultural, residential, or commercial.
Yes, the value of partitioned and unpartitioned land varies as partition land fetches a better price at the time of sale.
The ownership rights of all the owners are equal in the case of joint property. The shares in the property are partitioned through a department or court of law, as the case may be.
In case there is an absence of family settlement at the time of partition, the land is partitioned by adopting the principle of good-to-good and bad-to-bad land. On the basis of this principle, the land is distributed amongst the co-owners, and they are granted a share of equal value.
As it is a joint property, your father can file a suit for partition and get his individual share separated. The suit can also be filed without taking consent from other co-owners. Once the property is partitioned, your father will have his independent share, and his brother will no longer be able to hold possession of the said share.
There are 2 types of partitions, contested and uncontested. In the case of contested partition, the co-owners of the property are not in consensus for partition and wish to contest for the same. On the other hand, in the case of uncontested partition, all the co-owners of the property mutually agree for partition.
In case the co-owners are not in consensus for partition and any one of them wishes to go for partition, such co-owner can file for a partition suit to get the property divided into individual shares.
A suit instituted for the purpose of getting the joint property divided into separate portions according to the rights and share of co-owners is referred to as a partition suit.
Partition of the land refers to the division of individual shares in joint property. In other words, through a partition, the joint property is divided into separate portions on the basis of the share of co-owners.
When a suit for partition is filed, the court appoints a local commissioner who inspects the property and submits a report. On the basis of this report, if it is ascertained that the property cannot be divided into individual saleable units, the court might order for the sale of the property, and the proceeds from the sale are distributed amongst the owners.
The cases for partition of agricultural lands are filed at the office of the Tehsildar under whose jurisdiction the land falls.
For the partition of constructed properties, the cases are required to be filed before the civil court having appropriate territorial jurisdiction.
No, with the assistance of our team, you can file the suit without travelling to India. This can be done by appointing a Power of Attorney holder. Through this, the case can also be supervised and managed by a team.