While claiming right over the ancestral property any sweet relation may turn sour. The feud is mostly unavoidable while dividing property between you and your relatives. Everyone has their own thought and choices in the division of property. And such choices mostly collide with each other. So how will you claim your right over your ancestral property? How to legally fight for your right to property.
There are many ways through which you can divide the ancestral property: –
- Partition deed – in this all the joint owners of mutually divide the property by drafting a partition deed.
- Partition suit- in a partition suit, one of the joint owners files a suit in court for his portion of the property.
- Oral agreement – is the mutual settlement of the property done orally without any written proof of division.
- Memorandum of family settlement – it is a preferred mode adopted by the families to record the terms of the partition of family property. There is no requirement to register or pay stamp duty.
Here, in this blog, we will talk about how to file a Partition suit.
What is an ancestral property?
Ancestral property is a property that has been passed down from your forefathers or from 4 or more generations. No person can forfeit your right to an ancestral property (except yourself).
Laws That Regulate Partition in India
- The Partition Act, 1893
- The Hindu Succession Act 1956 (Governs the partition of the Hindu Joint Family).
- The Hindu Undivided Family [HUF] and The Hindu Partition Act of Property 1892 (Governs property partition of jointly owned property by two or more co-owners).
Things to note while filing a partition suit
- Plead on joint and ancestral property
The partition can only be possible for the ancestral property. You cannot claim a portion of the self-acquired property. The foremost thing that you need to do is prove that the property is joint and ancestral. And for that, you need to submit the required documents of the property along with your family tree. You need to plead with reference to the family tree that shows your rightful portion of the property.
For example, if your family has 6 members, you, your parents, and 3 siblings. Then, the property will be divided into 6 parts and you can claim your right over 1/6 of the property.
- Documents required
You need to submit the documents of the ancestral property. But in case you don’t have original documents of the property, you can submit a certified copy or photocopy of documents. But, for submitting a photocopy in court you need to attach an application along with second evidence.
If you don’t have property papers then you can file an RTI in the respective municipal corporation. The municipal corporation will send you the property papers of the respective property that you demanded.
- Parties to make
There are two parts to a court case: petitioner and defendant. You will be the petitioner, as you are the one filling the case and the defendant will consist of all other heirs of the property that have a part in ancestral property. Be careful not to miss out on any single heir while filing for a suit because later on, that person can file a suit, and the judgment of this suit will be void. Therefore, you need to make every
- Stamp duty
You need to pay heavy stamp duty on your property for the partition suit. The percentage varies from state to state. But it usually ranges from 1%-3% of the price of the property. The price of the property does not mean the market price of the entire property it means only the price of your part of the property. You need to pay stamp duty only on your part of the property.
- Where to file suit
Suit for partition is filled in the civil court of the city in which the ancestral property is. In case you have an ancestral property in more than 1 city then you can file suit in any 1 of the cities. But you cannot file suit in multiple cities. You can choose any 1 forum and file the suit in your city.
- Limitation to file the suit for partition
You cannot file a partition suit whenever you want. Law has some time limitations. According to the limitation act, a person can file a suit for partition within 12 years. Although through section 5 of the limitation act, 1963 after the time span of 12 years the court may allow a person to file a partition suit by giving a justified reason for such suit.
Article 65 of schedule 1 of the Limitation Act, 1963 prescribes a timeline of 12 years, within which an aggrieved person may file for recovery of possession of immovable property or any interest therein based on the property title.
- Decree in the suit for partition
There are 2 types of the decree that a court draws: preliminary and final. In the preliminary decree, the court decides whether you have a part in the property or not and if yes then how much proportion are you authorized for? Whereas in the final decree the court decides on how to grant you the allotted proportion of the property.
Sometimes, when the distribution of the property becomes complicated then the court orders to sell the property and distribute the amount proportionally among the authorized heirs.
Conclusion
Through this blog you will be aware of the proceedings of your partition suit and the things that you need to check will filing them. Sometimes even a single mistake may lead to the failure of your efforts for years. Partition suits require heavy stamp duty and a long time before the judgment of the case. Therefore, one should avoid any mistake possible that can spoil all your efforts.
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