What to do during Partition of Ancestral Property

If you are living in a joint family, someday or the other, you are going to face a property related issue unless and until the entire ancestral property has been divided by the head of the family. But in cases where the ancestors die without making a will or gift deed or any kind of a deed of family settlement, then there arises a dispute where each of the living heirs can claim their individual rights over that property. The solution to this is to sign a Deed of Partition if it is a mutual decision by all the co-owners and, if not, then to go for the Partition Suit in the court.

Ideally, in a family unit, most of the disputes happen because of co-ownership. Now the question is, what is a co-ownership? In simple words, co-ownership means an ancestral land/ property is coming down to all the siblings, and all those siblings become co-owners. And this process is termed as co-ownership.

What to do during Partition of Ancestral Property

How Can Disputes of Property Ownership Be Solved?

The only way to resolve co-ownership is to file a legal partition for land and property. The partition can be filed by anyone co-owner, irrespective of whether the other co-owner agree to the partition or not. More or less, the only difference is if they do not agree, it will be called “uncontested partition,” and if they all agree to the same, it will be called a “contested partition”.

The time taken in a contested partition to resolve the separation is much less as compared to the uncontested partition. Partition is a legal process, and every person who owns a property can file a partition suit in the court. If you have jointly inherited a property, it is your legal and constitutional right to get it demarcated and can get a separate position and control over that property.

What should the Legal Notice include in case of an ownership dispute

When any person owns a joint property with other co-owners, he/she can send a legal notice for the partition of that property at any point in time. It can also be sent when any one of the co-owners sell, gift, mortgage, lease out or dispose of the property without taking the consent of the other co-owners. Others can oppose this through a legal notice for the partition of the property. Following are some of the essential ingredients of legal notice for the partition suit:-

  • Name, description, and residential addresses of all the co-owners
  • A detailed description of the cause of action
  • The entire description of the disputed property
  • The relief claimed by the person sending the legal notice.
  • An elaborate and clear division and demarcation of all the portions of the property along with the share of the property which is common and is undivided

Statues for the partition of a property

In India, there are various statues that govern the suit for the partition of a property. These statutes are the Hindu Succession Act 1956, The Partition Act 1893, The Indian Succession Act 1925, and The Civil Procedure Code, 1908. In case the property has been illegally disposed of to a third party without your knowledge and consent and due to which there is an infringement of right over that property, you can file a suit for Declaration and a suit for Permanent Injunction either before the Court of a Civil Judge Senior Division or before the Court of Civil Judge Junior Division.

In this case, the legal notice will be sent to both the co-owner and the third party purchaser. Once the legal notice has been sent, a suit for permanent injunction along with the cancellation of sale should be filed before the concerned Civil Court.

Apart from this, there is an alternate right available to you before the Criminal Court. As per Section 406 of the Indian Penal Code:

“Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

In simple words, it can be said that an offense of Criminal Breach of Trust occurs when an accused with a dishonest intention converts the property to his use when the property belongs to someone else. In such a case, criminal proceedings can be initiated against such co-owner/ accused person before the Judicial Magistrate of First Class.

Lawyer by Profession,. I love to talk about Indian Laws, and discuss them in depth.

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