What Is The Procedure To Divide Ancestral Property?

Dividing ancestral property can often lead to disputes among family members, as it involves determining the rightful share of each heir. In India, the division of ancestral property is governed by Hindu Law for Hindus, Buddhists, Jains, and Sikhs, as per the Hindu Succession Act of 1956. The procedure for dividing ancestral property involves multiple legal steps, and it is important for heirs to understand their rights and responsibilities to ensure a fair division.

Steps to Divide Ancestral Property:

Determine the Nature of the Property:

First, it is important to establish that the property in question is indeed ancestral property. Under the Hindu Succession Act, ancestral property refers to the property inherited from a paternal ancestor, such as a father, grandfather, or great-grandfather.

• Ancestral Property: The property that is inherited up to four generations of male lineage and remains undivided.
• Self-Acquired Property: Property that is acquired by an individual using their own income or resources, which does not follow the same inheritance rules as ancestral property.

Identify the Legal Heirs:

The legal heirs of ancestral property are usually the children of the deceased (sons and daughters), the spouse of the deceased, and in some cases, the grandchildren and great-grandchildren. In Hindu law, daughters now have equal inheritance rights as sons, thanks to an amendment to the Hindu Succession Act, 1956 in 2005.

Agreement Among Heirs (Mutual Consent):

If all the legal heirs are in agreement, they can divide the ancestral property amicably. This may involve:

• Physical Division: The property can be divided by creating separate allotments of land, buildings, or other assets.
• Monetary Compensation: If one heir wants to keep the entire property, they can compensate the others in cash or assets equivalent to their share.
• Formal Agreement: The heirs should execute a written agreement acknowledging their consent and the share allocated to each heir, which can be registered if necessary.

Partition Deed:

A partition deed is a legally binding document that confirms the division of the ancestral property among the heirs. It should clearly outline:

• The shares of each heir.
• Details of the property being divided (land, house, etc.).
• Signatures of all parties involved.
• The date and terms of division.

This deed must be signed by all legal heirs and can be registered with the local authorities to make it official.

Registration of the Partition:

Once the partition deed is executed, it must be registered with the Sub-Registrar's Office in order to make it legally valid. Registration makes the division of property official and helps avoid future disputes.

The registration process involves submitting the deed, proof of ownership, and identity documents to the registrar.

A nominal fee is required for the registration, and once completed, the property is officially divided according to the terms of the deed.

Update Land Records and Title Deeds:

After the partition deed is registered, it is important to update the land records and the title deeds of the property to reflect the new ownership of each heir.

You may need to approach the revenue department or local authorities to get the changes made in the record of rights (RoR) and other official documents.

The new share of each heir must be reflected in the mutations of the property in government records.

Filing a Partition Suit (In Case of Disputes):

If there is a disagreement among the heirs and they cannot reach a consensus, a partition suit can be filed in the civil court for a formal division of the property. The court will determine the share of each heir and issue a decree for partition. This may involve:

• Court Proceedings: The court will examine evidence, hear testimony, and issue an order for the division of property.
• Appointment of a Commissioner: In some cases, the court may appoint a commissioner to divide the property physically and submit a report.
• Final Decree: After hearing the case, the court will issue a final decree declaring the division of the property, and this decree will be binding on all heirs.

Tax Liabilities and Compliance:

The division of ancestral property may have tax implications, such as capital gains tax on the transfer of property or stamp duty for registering the partition deed. It is important to consult with a tax expert or property lawyer to understand the applicable taxes and ensure compliance with local tax laws.

Possession of the Divided Property:

After the division and registration of the property, each heir becomes the rightful owner of their share. They can:

• Sell, lease, or mortgage their share of the property.
• They can also build on, develop, or make improvements to their portion as per their preference.

Example:

Mr. A has three sons: B, C, and D. After Mr. A’s death, the ancestral property, which is a piece of land, needs to be divided among the three sons. The sons mutually agree to divide the land into three equal parts.

They create a partition deed, outlining each son’s share of the land.

The partition deed is registered with the Sub-Registrar's Office.

After the registration, the land records are updated, and each son becomes the legal owner of their respective share of the land.

If the sons could not agree and had disputes, a partition suit could have been filed in the civil court to resolve the issue.

Key Points to Remember:

• Ancestral property can be divided among legal heirs through a partition deed with mutual consent or through a court partition suit if there is a dispute.
• The division of ancestral property should be documented and registered for legal validity.
• Land records and title deeds must be updated after the division to reflect the new ownership.
• Legal heirs, including daughters, now have equal rights in ancestral property under the amended Hindu Succession Act of 2005.
• In case of disputes, the division can be settled through a court process, which may include the appointment of a court commissioner.