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Demystifying Property Partition: Ensuring Fair Distribution Among Family Members

Updated: Mar 24

Property Partition is a legal approach for division of property between the family members with an aim to ensure equal shares are equally distributed and the rights of the parties are protected as per the laws. Partition is not the same as transfer of property because nothing new is obtained by the co-sharer of the partition, here only the interest in the joint property is simply separated and the specified shares are allocated on partition. In Indoji Jithaji v Kottapalli, (1919, 54 IC 146), it has been held that a partition is not a transfer because it merely affects a change in the mode of enjoyment of property and is not an act of conveying property from one living person to another.

According to the property law, the kinds of property that can be partitioned are Ancestral Property, Joint Family Property and Self-Acquired Property. In India, the partition of property is done under various acts. Some of the acts are influenced by the religious beliefs of the individuals , apart from the generic laws that are applicable to everyone regardless of their religion.

The laws that deals with partition in India are Partition Act 1893, Indian Succession Act 1925, Hindu Succession Act 1956 and Muslim Personal Law (Shariat) Application Act, 1937.

Property Partition Laws: 1. Partition Act, 1893: The partition act was enacted for the purpose of providing that where the division of property cannot reasonably or conveniently be made and the sale of the property would be more beneficial for all shareholders. The court may direct the sale of property and distribution of proceeds to the shareholders. The court dervies the power from the Section 9, Saving of power to order partly partition and partly sale.—In any suit for partition the Court may, if it shall think fit, make a decree for a partition of part of the property to which the suit relates and a sale of the remainder under this Act.

2. Indian Succession Act ,1925 : It deals with the two categories of succession, Testamentary succession, and Intestate succession.

In Testamentary succession, there is a will that accordes the property to be distributed among the legal heirs on the death of the person. It isn’t applicable in the cases of Muslims, but applicable for people from other communities such as Hindus, Sikhs, Jain, Buddhist, Parsis and Christians.

Intestate succession means a succession where a person dies without making or leaving a will in regards to the distribution of properties among his heirs. In these cases, the personal laws such as Hindu Succession Act and Muslim Personal Law apply and the property is distributed according to legal heirs.

Under the Indian Succession Act, inheritance is dealt with for the Christians under section 31 to 49 and for Parsis from Section 50-56.

3. Hindu Succession Act 1956: The Hindu Succession Act 1956, deals with the matters of deceased dying intestate, meaning any individual who has died without making a will. According to the Hindu Succession Act 1956, the Act applies to any person who is a Hindu by religion and also to any person who is Buddhist, Sikh, and Jain. When can an individual be disqualified from the will process? Under Section 25 in The Hindu Succession Act, 1956 Murderer disqualified.—A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. Under Section 26 in The Hindu Succession Act, 1956. Convert’s descendants disqualified — If an individual has converted to another religion from being a Hindu, then he or she, their children and his descendants shall be disqualified from inheriting the property of any of their Hindu relatives. Unless such children or descendants are Hindus at the time when the succession opens.

4. Muslim Personal Law (Sharyiat) Act 1937: The Muslim Personal law act provides in the case where both the parties are Muslims. In Muslim law, there is no difference between Ancestral Property and Self Acquired Property unlike other laws.

Inheritance of property in Muslim law comes only after the death of a person, any child born into a Muslim family does not get his right to property on his birth. If an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in the property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist.

There is no distinction between the rights of property for men and women. On the death of their ancestor, nothing can prevent both girl and boy child to become the legal heirs of inheritable property. "However, it is generally found that the quantum of the share of a female heir is half of that of the male heirs. The reason behind this is that under the Muslim law a female shall upon marriage receive mehr and maintenance from her husband whereas males will have only the property of the ancestors for inheritance. Also, males have the duty of maintaining their wife and children".



Inheritance under Muslim Law: Law of Property by Dr. SR. MYNENI

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