The ancestral property belongs to a number of your family members. Your father, mother, brother, uncle, grandparent, and other heirs of the property. So how will you obtain your part of the property?
Fighting over property wastes many years of your life and none of the family members could utilize the benefits of the ancestral property. So, it is important to the how you could get your portion of the property.
There are 4 ways through which you can obtain your part in the ancestral property. But first, you need to know about types of property.
Types of Property
There are two types of property that a person can acquire in India. The succession of a property is governed by
- Self-acquired Property
Self-acquired property is the type of property that a person earns in his lifetime. The property can be a purchased property, a property received through a gift deed, will, or transfer deed. The ancestral property after being divided will also be a self-acquired property. There is no partition in the case of self-acquired property. A person has full right over his/her self-acquired property.
- Ancestral Property
Ancestral property is an undivided property, in which four or more generations of a single family have their share. All 4 generations must be alive at the same time. If the 4th generation example you were born after the death of your great grandfather, then you won’t have any right over the ancestral property.
A child since his/her birth has right over ancestral property. Earlier, the married daughter did not have right to ancestral property but now the married daughters also have the right to the ancestral property.
Once divided among the stakeholders, an ancestral property would cease to be an ancestral property, and turn into a self-acquired property. Therefore, after obtaining your part in the property the property will no longer be ancestral property rather it will become your self-acquired property. Also, an ancestral property given through a will or gift deed will also be converted into the self-acquired property of the person receiving.
What Is Partition and Why Is It Important?
Along with you, there are other members of your family who have right over the ancestral property. To specify your share in the property partition is necessary. So that there will be no conflict in the future and you can utilize your share in the property as you like.
How To Do Partition of Ancestral Property
There are 4 ways to partition ancestral property: –
- Partition deed
This is the most commonly used way for partitioning of ancestral property in India. A partition deed is made when all the heirs of the property have mutual agreement and consensus between them. In a partition deed, the proportion of each heir is specified and agreed upon by all. Although not many families can use this method as there is less probability of consensus between family members.
It is important to mention all the members of the family along with the family tree. Signature and thumb impression of all the heirs to the property are important. Through the Law of Estoppel, a person cannot refute his thumb impression. If you fail to include any member of the family and later that person files litigation against the deed then the partnership deed will be to stay.
Heirs to a property are determined through classes of heirs mentioned in the Hindu Succession Act, 1956.
Attach a map of the ancestral property along the partition deed to keep clarity relating to the area of each heir and to avoid any conflict in the future.
It makes it easier for you to get a loan. Although you have to pay a heavy stamp duty depending upon the state and DLC rate of your property. DLC rate is the District Level Committee rate. It is the minimum property rate used to calculate stamp duty.
- Partition suit
When there is no consensus between the member of the family regarding the partition of the ancestral property then you can file a partition suit in court.
- Oral agreement
This method is generally used to save on paying the stamp duty. All the members of the property orally or through verbal way agree to partition the property. Although this can raise conflict in the future. Because you may agree to partition but your future generation may not agree to the oral agreement and file litigation.
- Memorandum of family settlement
This is the least known method of partition. In a recent judgment of the supreme court, it was clarified that if you make a memorandum of your family and mention the partition of the ancestral property then that memorandum will be valid in the eyes of law. There is no requirement to pay stamp duty in this method.
Classes of Heirs
Classes of the heir are mentioned in Hindu Succession Act, 1956. These are used to determine the members of a family who will get part in the ancestral property.
- Class 1 heirs mainly include: –
- Son/Daughter
- Widow
- Mother
- Son/Daughter of a pre-deceased Son
- Son/Daughter of a pre-deceased Daughter
- Widow of a pre-deceased Son
- Son/Daughter of a pre-deceased son of a pre-deceased son (3 levels)
- Widow of a pre-deceased Son of a pre-deceased Son
- Class 2 heirs mainly include: –
- Father
- Son’s daughter’s son
- Son’s Daughter’s Daughter
- Brother
- Sister
- Class 3 heirs include Agnates
- Agnates are distant blood relatives of male lineage.
- Class 4 heirs include Cognates
- Cognates are distant blood relatives of the male or female lineage.
Class 1 heirs are entitled to share in the property but if no one from class 1 heir can inherit the property then class 2 heirs are entitled to inherit and so on if class 2 heirs are also not alive or can inherit the property then it is passed to class 3 heirs and at last to class 4 heirs. But if there is no heir from any classes above to inherit the property then the property is passed on to the government.
Conclusion
Property disputes can take many years to solve. Try to choose the right method to fight for your portion in the property. There are many ways through which you can separate your partition in ancestral property. You can use any one of the given methods. Drafting a memorandum of family settlement is the most prescribed method as it is valid in the eyes of law and economical for your family. It is not preferable to use oral agreement as it can lead to conflicts in future.
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