What is a Family Property Dispute?
How
is property divided under Hindu law?
The 1956 Hindu Succession Act governs property division. The
following elements determine family property division:
· Intestate Succession: If a Hindu dies
without a will, their property is distributed by intestate succession. Class I
legal heirs share the property. Sons, daughters, widows, mothers, and others
are legal heirs.
·
Coparcenary Property: Male descendants
receive ancestral property. Before the 2005 Hindu Succession Act modification,
only men could be coparceners and own property. The amendment gave daughters
equal coparcener rights.
· Self-acquired Property: An individual's
own assets, not inherited. Hindu law allows a will to disperse self-acquired
property.
·
Separate: Family members might agree or
go to court to separate shared family property. Coparceners and other family
members share the property in the partition.
What are the partition laws?
The Partition Act,1893
In India, the division of property among co-owners is
governed by the Partition Act of 1893. This statute enables any co-owner to ask
the court to divide up jointly owned property. The co-owners respective shares
of the property may be valued by the court, and the sale or partition of the
assets may be facilitated as a result.
Are property disputes civil or criminal?
Property disputes come under civil law.
Which civil law regulates issues involving property?
The Transfer of Property Act of 1882 is the primary civil law
in India that governs matters relating to property. The general guidelines and
regulations governing the transfer of various types of properties, including
both immovable and moveable goods, are outlined in this act. It controls
processes like property sales, leases, mortgages, gifts, trades, and transfers.
Do police get involved in civil disputes?
Officers generally do not actively get involved in civil
disputes as they are not empowered by state statutes to do so.
How do I settle disputes over family property?
In India, filing a civil lawsuit, engaging in mediation
negotiations, or adopting alternative dispute resolution processes like
arbitration or conciliation are some of the popular ways to address property
issues.
What is the simplest way to settle conflicts?
The most fundamental method of resolving conflicts is
negotiation. It is a back-and-forth exchange of words between the disputing
parties with the aim of resolving the issue.
What steps can a person take in case of a property dispute?
In family, broadly there are two ways you can settle down
with a property dispute.
·
By Mutual Agreement and Discussion
which is called Settlement.
·
By going to court means going for
litigation.
What kinds of issues are settled in family court?
It is used to define a multitude of extrajudicial procedures
that families can employ to settle disputes about parenting, child support, and
in some cases, property. Here are some types of family dispute resolution:
·
Negotiation,
·
Mediation,
·
Collaborative law, and
·
Arbitration.
Is legal notice required in a partition suit?
In most circumstances, a legal notice of partition is
necessary; however, it is especially important when one or more owners of a
joint, undivided property sell, give, mortgage, rent out, or otherwise dispose
of the property without the other owners’ prior written consent.
What is a legal notice for a property dispute?
The phrase “legal notice” describes a formal written
communication between the parties informing the receiver that a lawsuit will be
filed against them. It’s beneficial to discuss the sender's worries with the
recipient party. Consequently, you must be familiar with the format of a legal
notification for a property dispute.
What is the time limit for legal notice?
A stipulated time frame of 30-60 days must be provided for
the receiver to respond to the notice.
Can I send legal notice without a lawyer?
Yes! You can send a legal notice without a Lawyer, but it is
advisable to hire a lawyer as professional writing skills and legal language
makes a Notice very effective.
Can legal notice be sent by WhatsApp?
As per the Registrar Court at the Supreme Court, the service
of notice on a party via the instant messaging platform WhatsApp or e-mail is not
valid.
Do I need a lawyer to respond to a legal notice?
The reply should ideally be written by a lawyer. If you
don’t respond and the sender files a lawsuit, you might have a weaker legal
case, and the court will only hear the claim made by the other party in the
first place.
Can one person challenge a family settlement deed?
Even though a properly completed family settlement cannot be
changed without a court order, there are several situations when it may be
legally contested. These situations include the following. Future arguments may
result from any factual misstatement pertaining to the title of the contested
property. Ineffective execution.
How do brothers share their property?
According to Indian law, when a property is shared between
brothers, it must be divided equally, and the daughter is also entitled to a
share; the father cannot rescind the property’s distribution in a will.
What property rights does the brother have?
The father’s self-acquired property as well as his
ancestor’s lands are equally vested in the son (brother) and daughter (sister).
There is no effect from the daughter's (sister's) marital status.
What are two types of property?
It can be of two broad types – tangible and intangible.
1. Tangible
can include automotive vehicles, industrial equipment, furniture, and real
estate. Real estate is called “real property”.
2. Intangible
describes those assets that have current or potential value but do not have any
intrinsic value of their own.
Who is the legal heir of the brother's property?
Therefore, just like other surviving legal heirs, the brother’s
wife is entitled to an equal portion of his property. According to Section 8 of
the Act, if no Class I heirs are present and the father is not still living,
the brother, who is a Class II heir, receives the portion of the deceased
brother’s property.
Who is the legal heir of the father’s property?
According to the Hindu Succession Act, a Hindu father’s
property is initially divided equally among his Class I heirs, which comprise
his mother, widow, and children (including daughters). If the father’s mother
is not still alive, his widow and children will each receive an equal share of
the property.
Can a married sister claim property from her father?
According to the Hindu Succession Act of 1956, if the
property belonged to the father, the elder sister, who is a class I legal heir, was
entitled to claim her part, unless she had been denied that right by any valid
instrument.
When is it prohibited for a daughter to claim her father’s property?
The daughter does not have a right to any self-acquired
property unless it is specifically named in the will. But if the father passes
away without leaving a will, the daughters are equally entitled to any self-acquired
property.
Can the father deny property to the son?
Sons are born coparceners of ancestral property under Hindu
law. If the property is ancestral, the father cannot deny the son's portion.
In rare cases, a father might limit or deny a son's property
rights. If the property is self-acquired and not ancestral, the father may have
the right to distribute it.
What is ancestral property?
Ancestral property means, as regards sons, property
inherited from a direct male lineal ancestor, and as regards collaterals,
property inherited from a common ancestor.”
Is it possible to transfer the disputed property?
It states that any movable property involved in a title
dispute cannot be transferred or sold until the legal action is finished or
until the court with authority over the situation renders a decision.
Can I fight my own property case?
Yes, one can appear in court in his own case. However,
it is always better to engage a lawyer in the legal battle. Anyone can file their
case in court if they know the law.
How do you win a property case?
9 Important Tips for Winning a Court Case
1. Hire
the best possible lawyer.
2. Be
confident and have good body language.
3. Treat
the clerk nicely.
4. Be
prepared for your part of the story.
5. Stay
kind and calm at all times.
6. Trial.
7. Don’t
be overconfident.
8. Appropriate
recording of your claim or barrier.
9. Follow
up
What are 3 ways one can take to resolve disputes?
Here’s a review of the three basic types of dispute
resolution to consider:
1. Mediation.
The goal of mediation is for a neutral third party to help disputants come to a
consensus on their own.
2. Arbitration.
In arbitration, a neutral third party serves as a judge who is responsible for
resolving the dispute.
3. Litigation.
What if my brother is not given a share in my house?
Issue him notice through a lawyer demanding your share and if
he refused to give your share then File Suit for partition in court to claim
your share.
Can a disputed property be sold?
You can surely sell the property if there is no stay.
However, be certain to clarify that there isn’t a stay. The sale deed, not the agreement, is the correct document. In the document, all information must be
disclosed.
What is the time limit for property disputes?
The Limitation Act of 1963’s Article 65 Sch-I, which
establishes a 12-year statute of limitations for actions brought for possession
of real property or any interest therein based on title, contains the law of
adverse possession.
Can a person obtain a loan against disputed property?
As banks do not allow loan requests if the property used as collateral
for a loan is in dispute or the property papers are unclear about ownership,
the loan request may be denied if the property is presented as collateral is
disputed.
What is the section for property disputes?
When there is a disagreement over an immovable property and
the dispute is such that it may most likely lead to a breach of peace, section
145 of the CrPC is used in real life. The magistrate is then given the authority
to settle the right of possession dispute in order to avoid disruption and
breach of peace.
How can you stop the sale of Disputed property without your consent or
signature?
As long as they have a legitimate claim to the property,
anyone can ask the court for an injunction order. Legal heir certificates,
letters of administration, and other documents can be used as proof that one is
a legitimate heir to the contested property in question.
Who is not entitled to a share in partition under Hindu law?
A sonless widow is not entitled to a share on partition not nor is a
stepmother entitled to a share if she has no son. Under the dayabhaga law a
sonless stepmother is not entitled to a share on a partition between her step
sons.
What kind of property is exempt from partition?
Self-acquired property of a member is exempt from partition
because they belong to the owner. Property that has been gained through gift,
will, or hard work belongs to the owner.
Can the partition deed be challenged after 20 years?
Once you have filed the case for partition, the aggrieved
party, if they wish to contest the case, must approach the court within 3 years
from the date the partition suit is filed.
In which court partition suit can be filed?
A suit for partition is filed in a Civil Court having
jurisdiction over the area where the property is located. If there are several
properties, the lawsuit can be filed in any one of the courts. The partition
suit results in a decree which ends the joint nature of the property.
What
circumstances would prevent a partition from being a property transfer?
Partition refers to the division of property between two
blood relatives, such as brothers. Additionally, there can be no transfer of
property because they already owned it and no new property was formed.
Can a property be sold without partition?
Now an individual can sell their share of the property as
they wish by executing a sale deed without partition, but the Vendee cannot
claim rights until a partition suit is filed.
What is the maximum height of a partition wall?
Partition walls can be constructed either up to full floor
height or up to a height of 2.5m. As mentioned before, they are usually
constructed to take their self-weight and are occasionally used to support the
floor joists and roof trusses as well.
What is the limitation for challenging a settlement deed?
The limitation to challenge the sale deed is three years
from the date of execution.
Can we file a civil suit after 3 years?
The suit can be filed within 3 years from the date of the cause
of action having arisen. The said period of limitation cannot be condoned.
What is the value of a partition suit?
It is necessary to determine the overall value of the assets
at issue in each partition lawsuit. The plaintiff’s part of the total property
must be determined, and ¾ of that share will be used to determine how much the
lawsuit is worth.
Who has the power to alter partition?
Co-owners or legal parties can change a partition. They can
amend the partition, redistribute shares, or make other changes. A joint
agreement or new partition deed can do this.
What happens if the partition deed is not registered?
The registered instrument shall prevail over the
unregistered partition deed. Because the partition was not registered, there is
no opportunity to contest it in court because it is legal.
What distinguishes the division of property from the transfer of property?
While a transfer is an act by a party by which the title to
a property is transferred from one person to another, a partition is the
division of property amongst co-parceners/co-tenants that results in each
co-parceners/co-tenants having their own separate ownership/tenancy of
interest.
How many types of partition deeds are there?
There are 2 main categories of property that can be
partitioned in India:
1. Joint
Family or Coparcenary Property.
2. Self-acquired
Property.
What is Self-acquired property?
Self-acquired property is a property that a person buys with
his own money and work and does not inherit from his ancestors. He is the
exclusive owner of the asset and has private rights in relation to it. The self-acquired property also includes that gained through a gift or a will. The
same applies to property gained by hostile possession; it is also regarded as
self-acquired property.
What happens to the property of a deceased person under Hindu law?
According to the Hindu Succession Act, 1956, a deceased
Hindu’s assets are divided among his legal heirs, either according to his will or under the rules stated in the Act if the person has died without leaving a
will – i.e., intestate.
What is the burden of proof in a partition suit?
The burden of proof refers to the obligation of a party to
provide evidence and establish the truth of their assertions in a legal
proceeding. The burden of proof is entirely on the person who claims oral
partition. Such burden, at no point of time, has been shifted to the defendants
to prove that there was no amicable arrangement between the co-sharers does
not amount to partition.
What is probate?
Probate is the process completed when a decedent leaves
assets to distribute, such as bank accounts, real estate, and financial
investments. Probate is the general administration of a deceased person’s will
or the estate of a deceased person without a will
How does IPC define property?
According to Section 22 of the IPC, “moveable property”
refers to all corporeal property, excluding land and items that are permanently
fastened to the soil or objects that are attached to it.
What are the types of property law?
Types of Property Law. There are three types of property law
in focus. Those areas are real property, personal property, and intellectual
property.
What are the modes of transfer of property?
There are 5 Modes of transfer:
1. Sale:
Sale is defined under Section 54 of the Act and involves “transfer of ownership
for consideration”. …
2. Mortgage:
Section 58 of the Act defines a mortgage as a “transfer of interest” in immovable
property for securing the repayment of money advanced or to be advanced.
3. Lease
4. Exchange
5. Gift
What kind of property is not transferable?
Some kinds of property cannot be transferred, including the
right to sue, the right to future maintenance, stipends for members of the
armed forces, the navy, political prisoners, and civil pensions, and the
potential for an heir apparent to accede to an estate. The mentioned
requirements must be met for the property to be transferable.
What is the probate of a will in India?
Probate is defined under the Indian Succession Act, 1925 as
– “A copy of will be certified under the seal of the court of competent
jurisdiction with a grant of administration of the estate of the testator”.
Do wills require probate to be valid?
Indian law does not require that they will be put up for
probate. But getting a will probated is advised to prevent any future issues
with how the property is distributed. The legal heir can simply acquire
property ownership if the will is probated.
What is the validity of probate of will?
A probate order once passed, is valid. It can be executed at any time, there is no time limit for estate-related issues.
What are the reasons for family property disputes?
There are some important reasons for Family property disputes-
·
Dispute on the inherited property and
purchased property;
·
Dispute in reference to sharing in family
property;
·
Dispute in reference to ‘Will’ and/or
‘Trust;’
·
Dispute in reference to a particular
property (both the parties want to have it not ready to share or take another
property instead of);
·
If one of the parties taken undue
advantage of his power of attorney and cheated with other;
Is family settlement valid?
Such an agreement is a valid, legally binding enforceable
contract, applicable to all the signatories of the settlement.
Is a family settlement notarized valid?
The right holders are guaranteed access to all available
legal remedies if a family settlement deed is properly notarized and registered
with the appropriate authorities.
What is a settlement’s legality?
A settlement may be enforceable if it is documented and
registered. A settlement deed can be registered following a certain process.
The settlement deed must have specific documents attached.
Why family settlement is not a transfer of property?
A family settlement agreement is useful given that it is an
amicable resolution among parties and does not take as much time as a court of
law. Do note that the transfer of property or assets under this agreement is not to
be considered as a gift and is neither a transfer of right.
Is unregistered family settlement valid?
An unregistered family settlement is not admissible as evidence
in court.
What is a 12-year land rule in India?
According to a ruling by the Supreme Court, a person who has
obtained ownership of the property after possessing it for 12 years may bring a
lawsuit. It is to reclaim it in the event that the rightful owner or another
party forcibly removes them from it.
What is the value of final settlement?
Final Settlement Price means the price per Unit which the
Seller would receive on the Settlement Date in accordance with the agreement
between the parties if the Commodity were to be physically delivered.
What distinguishes a partition deed from a family settlement?
The payment of stamp duty and the registration of the
document recording partition account for the majority of the differences. The
execution of a partition deed is a pricey remedy because a family settlement
does not need to be registered or stamped, but a partition deed does.
Is the family settlement deed taxable?
It will not attract any income tax as the arrangement is
among the members of the family.
Is the settlement deed a legal document?
The settlement deed is a legally binding contract that must
be documented.
How can I prevent unauthorised use of my property?
Anyone who observes trespassing or illegal possession may
report it to the police in writing.
How can I remove trespassers from my property in India?
There are three steps-
1. You
can politely ask the trespasser to keep away from your property.
2. You
can get a court order of injunction.
3. You
can approach the court with the request to recover damages.
What is the illegal takeover of property?
An illegal takeover of property means the property is not
transferred with the consent of the real owner of the property.
What is the punishment for Section 441?
Punishment for house trespass. – Whoever commits house trespass shall be punished with imprisonment of either description for a
term which may extend to three years, or with a fine, or with both.
What can you do if someone is trespassing?
A person has the right to use reasonable force to remove a
trespass if it has interfered with his or her property.
Can a criminal sell their possessions?
No Objection Certificate would be issued by the competent
authority if it believed the property’s value was reasonable. The relevant
authority may make a preemptive purchase of the property and afterward sell it
through an auction or tender if it believes it to be undervalued.
Is it legal for police to seize real estate?
Immovable property is something that cannot be physically
taken possession of or seized; it can only be fastened or sealed. Chapter VIIA
of the Criminal Procedure Code states that only the Court has the authority to
annex or seal any immovable property.
What is the legal notice for trespassing in India?
Legal notice for trespassing must contain these essential
points: Name, description, and place of residence of the person or persons.
Name, description, and place of residence of the sender of the notice. Details
of the cause of action.
What happens when a person who has possession of property (that has been taken)
fails to establish his legal right to that property?
In such a situation, the Magistrate may decide that the
state government be given control of the property and allowed to sell it or put
it up for auction.
Can anyone sell their property for 1 rupee?
From the legal point of view, there is no restriction on the
amount of consideration that is payable on the sale of a particular property
and it is the prerogative of the owner to sell at the amount he wishes.
How do I stop a property transfer?
A civil lawsuit can be filed for the declaration of conveyance
deed as null and void with respect to the share of the owner.
Why is probate necessary?
Probate is especially appropriate and required for those who
have a large amount of property or money, and it is even more important if
there are, or are likely to be, others who question the individual’s will and
the distribution of the relevant assets.
How do you avoid probate?
There are some steps to avoid probate-
·
Have a small estate. Most states set an
exemption level for probate, offering at least an expedited process for what is
deemed a small estate.
- ·
Establish trust. Property held in
trust is not part of your estate upon your death.
- ·
Make accounts payable on death.
- ·
Own property jointly.
Are wills mandatory to be registered?
No, there is no legal requirement to register a will. It
does not even have to be on a stamp paper or notarized.
Can a will be registered after the testator passed away?
Even after the testator has died away, a will registration
that has already been signed by both parties and witnessed may be filed.
Who is the executor of the will?
An executor is a person/institution who is the legal
representative, named in a will or implied as such, to carry out the process of
the distribution of the assets of the testator.
Is handwritten will legal in India?
Yes, handwritten Wills are legal in India.
How many copies of Will can be made?
The testator must obtain a duplicate of the will in
accordance with Section 63 of the Indian Succession Act of 1925, sign it, and
have it attested in the same manner as they did for the original will. The
testator may give one copy, and the other may be retained in safe custody by a
trustee, a bank safe, or a legal professional.
What does it cost to register a will in India?
Registering a will in India costs between 10,000 and 15,000
rupees, which includes the price of just creating the Will. Except for the
small scanning and Xerox expenses, there are no government fees associated with
registering a Will.
Is it required to appoint an executor in a will?
Although the appointment of an executor in a will is not
required by the Indian Succession Act, it is still one of the testator’s most
significant choices since an executor is crucial and should always be named
unambiguously.
What is the capacity to execute a Will?
People must be over 18 to create a will according to the law.
The capacity to make a will is assumed to exist in adults. It can be contested
on the grounds of senility, dementia, insanity, the testator’s intoxication, or
another circumstance where they lacked the mental capacity to make a will.
Does a will require stamp paper?
No, the use of stamp paper is not mandatory for will.
What is the essential validity of a will?
Signed, Dated, and Witnessed: For a will to be valid it must
be signed, dated, and must also have witness signatures.
Does a will have an expiry date?
No, A will does not have an expiry date.
Which paper will be used for a will?
A will can be written on any paper sheet, there is no set
structure. It could be scribbled by the testator and drawn up on a blank piece
of paper. There is no requirement to employ technical language, per Section 74
of the Indian Succession Act of 1925.
How much does a lawyer charge to write a will in India?
Drafting a Will generally costs around Rs. 10,000/- to Rs.
15,000/- by an experienced legal practitioner, a young legal practitioner can
draft the same with costs anywhere between Rs. 4,000 to Rs.
Can a son challenge his father’s will?
Nevertheless, if the son believes that he was unfairly denied the
right to the property by unethical means or that the will itself was produced
fraudulently, he can legally challenge the validity of the will as a class I
legal heir.
What are the documents required for making a will in India?
There are some documentations required-
1. Identity
proof such as PAN card, Aadhar card, etc of the testator and the witnesses.
2. A
mental fitness certificate from a qualified medical professional for the
testator.
3. Passport-sized
photos of the testator as well as the witnesses.
Can a father acquire property without a will?
If a person passes away without leaving a will, according to
the Hindu Succession Act of 1956, his property shall be divided among his heirs
in Class-I of the schedule. When someone passes away without leaving a will,
his widow receives one share.
