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Laws regarding Partition of Property in India


Authored by - Anjali Shekhawat

Keywords - Partition Law, Hindu Succession Act, Indian Succession Act.


Abstract

Everyone has a right to claim their lawful possession and entitlement. “Property and power remain the biggest causes of disputes the world over and India is no exception to it. A major area of litigation in Indian courts is property ownership or its division[1].” In cases of disputes between two or more persons relate to such property, the determination of such entitled property of a person is done in accordance with the different Partition laws (such as in cases of two or more owners, or in case of inheritance, or in case of division). Indian partition laws are categorized under personal laws, I.e., separate laws are made for people belonging to different religion. Generally, the partition of property is determined by deed or settlement or claim of partition in the court of law. Various types of laws related to partition of a property would be discussed below.

Introduction


The disputes regarding property are existing since the origin of our world; as it is inherent in the nature of a person to claim their share and enjoy it without disruption. As the society grew, various laws were made to deal with the situations and to establish the right of a person over a property. In India, through various case laws and legislations, property & its divisions are defined and classified. A property is, as determined by Supreme Court in the case Raichand Gulabchand vs Dattatraya Shankar[2], ‘in its most comprehensive sense includes all legal rights of a person, except his personal rights, which constitute his status or personal condition.’ Further in the case R C Cooper v. Union of India[3], the Supreme Court clarified that the term property includes both corporeal things such as land, furniture and incorporeal things such as copyrights and patents[4]. There can be two distinct properties such as Ancestral property (inherited from ancestors) and Self-Acquired property (acquired on your own).


Laws regarding Partition of Property


The Partition of property can be termed as the division which is made between several persons, of lands, tenements, or hereditaments, or of goods and chattels which belong to them as co-heirs or co-proprietors. The term is more technically applied to the division of real estate made between coparceners, tenants in common or joint tenants[5].

Distinct provisions related to partition in India:


Under Partition Act 1893, the court is empowered to carry out the partition deed and in case partition does not satisfy the court, the court can also suggest selling of the property. The profit out of selling would go to the entitled people.


In the case of a person who does not belong to Hindu or Muslim Community or who wishes to carry out his will under provisions other than personal laws, Indian Succession Act is applicable. Under Indian Succession Act, there are two kinds of succession which can be done. Testamentary Succession which is done in the case of a will of person after his death, the property is distributed in accordance with the will. Interstate Successions involve the cases where there is no will and the property is distributed in accordance with religious laws. These laws are generally applied to Christians or Buddhists.


Hindus, people belonging to the Hindu Religion, are governed by the Hindu Succession Act. Under this provisions people who convert into other religion can also claim their ancestral property but their children are not entitled to the same. For Muslims, there is Muslim Personal Law Application Act, under which a person whose both parents are Muslims can claim his ancestral property.

The partition can be carried out in various manners such as:


1. The most common is by the way of Partition Deed; an agreement between the co-owners of a property specifying the terms of division and allocation of entitlements.

2. By the way of family settlement, the settlement between family members in relation to the division of ancestral property according their own convenience.

3. By the way of Execution of will, in cases where a person has made a will before dying his trustee or court appointed executioner executes the will in accordance with its terms.

4. By the way of Court Settlement, in cases of disputes and absence of any will courts decide the matter on the basis of law and determine the owner of the property.


There are certain limitation period and formalities relating to partition. Those must be fulfilled during partition and it’s the duty of court to prevent any breach of such provisions. The court can award specific performance and also compensation in case of such breach.


Analysis


There is no other country which has such defined and codified laws of partition for different religion as in India, to satisfy everyone belonging to different religion and be governed by their own religious laws. However, this system creates a lot of vain complexity in the legal system. Many people convert to other religions and such situations creates a lot perplexity for our legal system. As much as it is desired that every person’s needs are fulfilled according to their faith, but it is also required that the complexity and perplexity should be avoided. A secular and single legislation for every citizen would not only reduce the burden of the courts but also would be helpful in enforcing fair deeds. The one development that must be appreciated in the partition laws is the inclusion of female descendants in the right to entitlement of the property. Further the laws must be clarified and the part of oral partition must be defined properly.


[1] Poonam Pradhan Saxena, “LAW RELATING TO PARTITION by M.N. Das” Reviewed work, Journal of the Indian Law Institute, October-December 2001, Vol. 43, No. 4 (October-December 2001), pp. 574-580 Published by: Indian Law Institute Stable URL: http://www.jstor.com/stable/43953402. [2] AIR 1964 Bom 1, (1963) 65 BOMLR 510, ILR 1963 Bom 509. [3] 1970 AIR 564, 1970 SCR (3) 530 [4] PrachiDarji, “Property Partition Laws in India”, My ADVO, 19 Sept 2019, https://www.myadvo.in/blog/family-partition-a-legal-perspective/ [5] “PARTITION”, THELAW.COM LAW DICTIONARY & BLACK'S LAW DICTIONARY 2ND ED. https://dictionary.thelaw.com/partition/

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