Property Laws in India
In India, there are various laws that deal with property in India, some of which are as follows:
1. Transfer of Property Act, 1882
- The Transfer of Property Act 1882 is an Indian legislation which regulates the transfer of property in India. It contains specific provisions regarding what constitutes a transfer and the conditions attached thereto. It came into force on July 01,1882.
- According to the Act, 'transfer of property' means an act by which a person conveys the property to one or more persons, or himself and one or more other persons. The act of transfer may be done in the present or for the future. The person may include an individual, company or association or body of individuals, and any kind of property may be transferred, including the transfer of immovable property.
2. Partition Act, 1893
- Under the Partition Act, in case of a suit for partition, if it appears to the Court that the partition of the property cannot reasonably happen or sale of the property is more beneficial, then the Court may, on the request of the shareholders interested, direct the sale of the property and distribution of proceeds.
- Section 9 of the Act gives power to the Court to distribute the property equally and make the sale of reminder property and to distribute the proceeds.
- Under the 86th Law Commission report on Partition Act, 1893, various suggestions have been made to amend the Act as there are gaps in the Act but the amendment is yet to be made.
3. Indian Succession Act, 1925
- The Indian Succession Act deals with two kinds of succession: testamentary succession and intestate succession. Testamentary succession is where a person makes a written document called ‘Will’ as to whom his property will go after his death. In case there is no such written document, the properties of the deceased would be distributed according to his religious law and this is known as Intestate Succession.
- In case there is no personal law applicable to the person, the Indian Succession Act would apply. Likewise, the Indian Succession Act is applicable to Christians for both kinds of successions whereas in the case of Buddhists, only the Testamentary Succession laws are applicable as per the Indian Succession Act.
- In the case of Christianity, the heirs’ religion is immaterial but the person who is dead must be a Christian on the date of his death. Adding to this, the adopted child will not have the same right as the biological child.
4. Hindu Succession Act, 1956
• Hindu Succession Act governs the Hindus as the name suggests. According to the Act, the person who converts into any other religion can still claim his share in the ancestral property but the child of the converted person cannot.
5. Muslim Personal Law (Shariat) Application Act, 1937
The Muslim Personal Law (Shariat) Application Act applies in the case where both the parties are Muslims. Even if the son has converted into another religion, he is the biological son who has a right to claim over the ancestral property. The act also states that if the child is born out of wedlock, he has the right to claim over the ancestral property.
WHAT KIND OF PROPERTIES CAN BE PARTITIONED?
There are two types of properties that can be partitioned as per the Property Partition Laws in India:
1. Self-Acquired Property
Self-acquired property is the property that a person acquires with his own hard-earned money and is not inherited by his forefathers. Also, any property acquired by gift or will is also considered as a Self-Acquired Property. Self-Acquired property cannot be partitioned during the lifetime of the person who has acquired it. The person who has acquired the property can make a Will during his lifetime as to whom he wants to give his property to. If the owner of the property dies without leaving a will, the property is passed onto his heirs as per the Hindu Succession Act 1956.
2. Ancestral property
Any property which is acquired by a person’s forefathers is termed as ancestral property. Such a property must be four generations old. A person who is born in that family has a vested interest in the property which means that he has acquired the property by the virtue of his birth in the family and such property can be partitioned.
METHODS OF THE PARTITION OF ANCESTRAL PROPERTY:
Following are methods to partition an Ancestral Property:
1. Partition by mutual agreement
Partition of the property by mutual agreement can be done by Partition Deed or Family settlement.
• Partition Deed- Partition Deed divides the property between the co-owners of the property. This deed is prepared in order to divide the property so that each person gets an absolute title over his own part of the property. The partition by Partition Deed is governed by the respective religious acts or Indian Succession Act where there is no special act governing that particular religion. After the Partition Deed is executed, each co-owner becomes the absolute owner of their share of the property and they can dispose of the property as they want it to. This means that they can sell, transfer or gift it to anyone as they want. The deed must be registered and executed on the stamp paper in a very clear and unambiguous manner, specifying the share each co-owner has been given.
• Family Settlement- The property can also be divided by family settlement where the family does not want the Court to be involved; they go for the negotiations and settle the matter. The family settlement deed need not be on stamp paper or be registered. Also, it need not be written but it must be with the complete satisfaction of all the co-owners.
2. Partition through Court
Before filing a partition suit, a legal notice must be served to all the co-owners specifying their interest in the property, their share, and the action to be taken and try to settle the dispute. Even after this, if the dispute is not settled, then a civil suit is filed before the Court.
Limitation Period: The limitation period for filing this suit, according to the Limitation Act, 1963, is twelve years from the date the possession of the defendant becomes adverse to the plaintiff. However, the burden of proving that the suit is barred by time is upon the opposite party.
Court Fee: The Court determines the court fees according to the value of the suit and the court fees must be paid before filing the suit. The fee differs according to the case and also with the respective state jurisdiction.
Time Involved: The time involved in the partition suit can not be ascertained as it purely depends upon the facts of each case and the technicalities involved.
3. Partition through Will Probate
Probate is a copy of the Will certified under the seal of the Court. Probate can be granted only to the executor under the Will as stated under Section 222 of the Indian Succession Act, 1922.
After filing the petition, the Court gives public notice in any leading newspaper to invite any objection. If there is no objection, the Court upon being satisfied considering the evidence, grants probate.
Limitation Period: According to Article 137 of Limitation Act, 1963, the limitation period for filing probate petition is 3 years from the date when the cause of action accrues or the right accrues.
Court Fee: A stipulated Court fee has to be paid depending upon the facts and the state jurisdiction of the case.
Time Involved: There is no specified time which is given under any act as to when the suit must end. It purely depends upon the facts and circumstances of the case and the technicalities involved in it.
HOW ANEJA & ANEJA HELPS IN PROPERTY MATTERS?
Aneja & Aneja is fully equipped to handle filing of appropriate Civil Suits for the disputes related to your properties which are situated in the vicinity of New Delhi and NCR.
The services handled by Aneja & Aneja shall include, though not limited to, the following aspects:
- Study of documents pertaining to title/ownership rights.
- Counseling, advising and formulation of strategy on the property matter in dispute.
- Preparing and filing of the Civil Suits or any other appropriate legal proceedings before the competent Courts of jurisdiction.
- Representing clients before the competent Court(s) in proceedings related to aforesaid aspects.
We possess strong capabilities in procuring your legitimate rights in the property in dispute and litigating Civil Suits across New Delhi and NCR.