Partition or Division of Property
Non Resident Indians usually inherit property which has been passed on to them after demise of their parents or from the ancestors. The property could be an ancestral house or a commercial shop or agricultural land in their native place.
As these properties have been passed on through generations, there can be several co-owners and properties are jointly owned with either siblings or cousins. The person who currently holds the possession of the jointly owned property, always tends to have an upper hand which may not be in favour of NRI share holders and can be detrimental to their interest.
As NRIs are living in a faraway place and in absence of their physical presence in India, joint ownership of property puts the NRIs in a vulnerable position and it’s better to get the property partitioned in the interest of NRIs.
NRIs prefer to get their share from the jointly owned property transferred in their own names so as to get adequate control to make decisions independently without any interference from anyone. NRIs seek assistance for the division of their co-owned properties so as to avoid any discrepancies and unnecessary hassles from uncalled for litigation.
In order to have better control of one’s own share in a joint property, we recommend our NRI clients to get the partition or division for their individual share. These individual shares will get partitioned by metes and bounds and defined in the government records.
Generally NRIs acquire joint interest in the properties by way of an inheritance in ancestral properties. Inheritance of properties is governed by various laws and acts in India. Based on the facts of individual case, the act which governs the inheritance and partition of the property has to be decided by an expert who is familiar with the various acts as prevalent in India. NRIs can file for a partition of the properties which may be jointly owned by them by way of an inheritance or otherwise. The partition of a property jointly held by two persons can take affect by way of an oral partition or a written partition by way of mutual agreement. As a rule, the written partition is to be registered at the Office of Sub Registrar of the concerned place in order to give it a legal and binding affect.
Partition through Court
In case the joint owners of the property are unable to come to a consensus regarding the partition of the property then the only remedy available to them is to file a suit for partition. Partition of property can be done by filing a civil suit of partition/division.
Following are the methods through which partition of ancestral property can be done.
- A co-owner of the joint property has the right to file a partition suit for getting his share partitioned and defined.
- After the partition of the joint property, each of the co-owner gets share as per their legal entitlement
- Each of this divided share gets a ‘new owner’ and a new title is recorded in the government records.
- As each of the co-owner gets share as per their entitlement, they have to give up their share in the other portions of this divided property.
- After due completion of partition suit, there would be different owners and each owner is independent of others.
- Each owner will have control of their own share of the property without any interference from others.
- Partition of the property is the best legal remedy to safeguard own’s share as it helps to get the Possession of their share in their own hands.
- Partition suit also ensures the possession of the property when the other co-owner is hesitant to handover the possession to other co-owner
- After completion of partition process, being the new owner of his share, the owner can transfer, make a will or sell the property as per his own wish.
According to Limitation Act 1963, the Limitation period of filing of partition suit is 12 years from the date of possession of the defendant. After 12 years the possession becomes ADVERSE to the plaintiff (Original Owner)
Jurisdiction of Partition suit
In case of disagreement among co-owners, the partition suits are to be filed in the court of appropriate jurisdiction. The court appoints a revenue officer to inspect the property and on the basis of his report, the property is divided among the co-owners. In the event, if it cannot be divided into saleable units for each co-owner then the court may decide to appoint a government approved Valuer to get the market value of the property.
Court further gives right to each of the co-owner to buy out the share of other co-owners and if the co-owner shows incapability and is not able to buy the share at decided value, the court may order the sale of the property and distribution of sale proceeds among co-owners.
Our team at Raj & Kanwar Legal Advisors India LLP has immense experience in managing, handling and assisting our NRI clients in partition of the property. The team ensures to ascertain the rightful due of the clients by going through the historical records of the ownership Like family tree and how it is passed on to the co-owners.