Hindu law covers diverse subjects. The main focus is family. The family consists of 3-4 generations, which live together under one roof. The property they use is common and comes down from generation to generation.
Such property is called ancestral property. Each person in a direct line of descent gets right over ancestral property as soon as he takes birth. Sometimes, some members of the family want separate ownership of the property. They go for partition of ancestral property, which is discussed hereunder.
Property under Hindu law
Property means a thing, movable or immovable, that belongs to someone. Under Hindu law, property means all assets that are inherited by a person or which devolve onto him. Hindu law categorizes property into 2 types:
Joint family property–
Hindu joint family consists of a common ancestor, his lineal male descendants, his/their wives/widows, and any unmarried daughters. The Head of the family is called Karta. Property acquired by aid/assistance of joint family assets is joint family property, which maintains the whole family. Right to a share in such a property accrues by birth itself.
It is further divided into:
Property inherited by a Hindu from his father, his grandfather, or his great grandfather. A Hindu inherits property from his male ancestors, then it is ancestral property. Property inherited up to immediate 4 generations of male lineage and remained undivided. The share of each generation is first determined and the share of successive generations is sub-divided.
Property no longer remains ancestral if it is partitioned and each member gets his separate share. Property inherited from female ancestors or through will/gift is not ancestral.
Blending of property
When a member voluntarily throws his separate property into the joint property, abandoning separate claims. It is made divisible among all members; it is called blending. Such an act is not considered to be a gift deed or transfer of property. This right of blending is available to coparceners only.
It is a smaller unit of joint family property. Where a joint family includes every member of the family, a coparcenary includes a common ancestor along with 3 lineal descendants. Coparcenary has succession up to four degrees of lineal descent. If the fifth descendant is born, he can become a coparcener if the first common ancestor dies. The interest of coparceners fluctuates and is unpredictable until partition.
Coparceners have the right to ask for partition and challenge partition. Non-coparceners can ask for maintenance only. Earlier only sons were made coparceners but today daughters, married or unmarried, can be made coparceners. If the coparcener died, his share would go to the remaining coparceners but now, it devolves through intestate succession.
One member of the Hindu family owns certain properties which are acquired through his own labor, that is self-acquired property. Every property other than the joint family property is separate property. Every property acquired from other than male ancestors is separate property. A child does not have a right to his father’s self-acquired property by virtue of his birth.
Such property cannot be partitioned but disposed of as the owner wants, through will, gift, sale, etc. Separate property can be converted into joint family property through blending or passing it down from generation to generation.
Partition of ancestral property
The unequivocal intention of members of the family was to partition the ancestral property. The ancestral property gets divided into several shares and ownership of each share changes. The partition that took place before 20 December 2004 remains unaffected by Hindu Succession (Amendment) Act, 2005. The Act does not apply retrospectively.
There are many modes of partition of ancestral property as follows:
Parties can themselves decide to divide ancestral property among themselves orally. There would be no evidence as to what would have happened as it was verbal and not codified. Future generations can challenge oral partition on this ground.
When all joint owners of property mutually agree/consent to divide the property, a deed is made. It mentions the name of joint owners, date of partition, statement of partition, and description of share each will get. It is to be signed by parties. A distinguished and well-demarcated map of the property is important to avoid confusion. The Law of estoppel applies here, that parties are not allowed to withdraw their consent. Parties can register the deed with the sub-registrar, to provide strong evidence if a dispute arises. They have to pay applicable stamp duty. Once the deed is executed, the property loses its ancestral nature and becomes separate property.
When the ancestral property cannot be divided by mutual consent or when agreement cannot be reached. Or in case, owners are not satisfied with their shares or a dispute arises. Non-coparceners cannot file partition suit. Party has to apply to a civil court to ask for its own shares and not partition the whole property. The procedure is the same as followed in civil suits.
Memorandum of Family Settlement
It is similar to a partition deed but no formalities are required. There is no need for registration of paying stamp duty. It is voluntary and no force/fraud is to be involved. It is considered to be a blend of oral partition and partition deed, consisting of features of both.
Partition of property by way of court takes many years and life of people. Members of the family are not able to enjoy the benefits of ancestral property. They end up fighting for their self-interest, keeping aside their familial ties. An agreement should be reached among disputant parties to lessen disputes. For which knowledge of the law is necessary.
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