Property Dispute and Family Settlement

हिंदी में पढ़ें
October 06, 2020
By Advocate Chikirsha Mohanty



WHAT DOES PROPERTY DISPUTE MEAN?

As the name suggests, property dispute is a legal dispute related to property in India. About 66% of all cases in India are property-related disputes. There are various types of property disputes. These could often arise through claims from co-owners, family, legal heirs, misrepresentation by seller, bad title of property, disputes related to property acquired as a gift or through Will, disputes related to easements rights, etc. 

Wars over wealth (including property) take place across every stratum - from low-income households to ultra-rich families, hence making property disputes (within families) a common occurrence in India. The obvious solution for most is to drag the matter to the court instead of settling down. However, most people don’t realize that apart from being a tedious and expensive process, courts in no way guarantee a satisfactory resolution. It is, therefore, advisable to opt for a family settlement. Here are some points that will make you understand the concept of settlement better.

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WHAT IS FAMILY SETTLEMENT?

In a nutshell, a family settlement is an agreement where family members mutually work out how a property should get distributed among themselves. All the parties should be related to each other and have a claim to a share of the disputed property. The latter need not be limited to real estate, but can also cover movable assets like jewellery or money in bank accounts. A family settlement is usually used to settle common property or joint property that the family owns as opposed to individual or self-acquired property.

 

PARTITION THROUGH FAMILY SETTLEMENT AGREEMENT:

A family settlement is an agreement between family members, generally made to avoid any court disputes and divide the family property with mutual understanding. A family settlement agreement is made in the same format of a partition deed. Moreover, a family settlement agreement does not require registration and stamping.

A family settlement agreement must be signed by all the members of the family voluntarily, without any fraud, coercion or pressure from any family member. In addition to this, it is not necessary that the family settlement agreement is drafted in a written document and can be executed either by a compromise or by a mutual understanding between the family members.
 

USPs:

  • For those who wish to avoid protracted, public and messy court battles

  • Quicker, more harmonious way to resolve disputes.

    Consult: Top Property Lawyers in India
     

PROCEDURE:

A family settlement is a conciliation process where a third person, usually a lawyer or a senior family member, helps the family arrive at a mutually acceptable solution to the property dispute.

A family settlement may not be a single legal document incorporating the distribution of the property; it can also be a series of documents spelling out the property rights of each of the family members.

A settlement instrument is neither a gift nor a transfer of property as per the provisions of the Income Tax Act. Therefore, separate transfer of property documents will have to be drawn up in addition to the said family agreement in order to bring about an actual transfer. The tax fact must be taken into consideration while a transfer of property is decided.


PARTITION/  SETTLEMENT SUIT IN FAMILY DISPUTES IN INDIA:

Now, before a case is filed in court for partition of property, a legal notice has to be sent to the other co-owners of the property regarding family property partition/ settlement. The legal notice for partition suit must state the shares of each co-owner, complete details of the property in dispute and the requisite action required to be taken. If the co-owners do not reply to the legal notice or send an insufficient reply, a partition suit can be filed in the court.

A partition suit is a court case filed when none of the co-owners agrees to the terms and conditions of property division, and one or more co-owners want to divide the property according to their shares. A suit for partition is filed in the court which has jurisdiction over the area in which the property is located.

The court first determines whether the person who has filed the partition suit has a rightful claim in the property or not. One the share is established and no additional inquiry is needed, the court may assign individual ownership of the property to the co-owners.

If the property cannot be distributed merely on the partition suit, the court may order for an inquiry to be conducted and pass a preliminary or initial decision for appointment of a Commissioner who will then evaluate the property and submits a report. The court then determines the share of each co-owner on the basis of the said report and divide the property according to each co-owner’s share.

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CAN FAMILY SETTLEMENT OF SELF-ACQUIRED PROPERTY TAKE PLACE?

Self-acquired property settlement can't be executed during the lifetime of a person who had acquired it, but at the same time, the self-acquired property automatically becomes a part of the ancestral property on the death of such person. However, the person can assign the self-acquired property through his/ her will to any person he desires.
 

LEGAL REQUIREMENTS:

Merely reaching a consensus is not enough; there are a few legal formalities that must be completed to ensure that the agreement is valid.

  • The settlement document must be signed by all the family members involved. A missing signature can easily become ground for challenging the document in court at a later date.

  • As a safety measure, the document should be attested by two witnesses, though it is not mandatory.

    Consult: Top Property Lawyers in India
     

REGISTRATION:

The next step is to register the agreement. According to Section- 17 of the Indian Registration Act, a family settlement that purports to assign immovable property must be mandatorily registered or the deed would be invalid. A stamp duty is applicable to such deeds and the amount would depend on the value of the property involved.
 

BINDING FACTOR:

While a duly executed family settlement cannot be revoked, except by a court decree, it can be challenged in a court of law under the following circumstances.

  • An agreement that is brought about by fraud or coercion

  • Any misrepresentation of facts regarding the title of the disputed property, too, can lead to future altercations.

  • Improper execution.
     

Paying heed to these common tripwires while drawing out an agreement will result in a foolproof, amicable and binding family settlement, which benefits everybody.
 

WHY DO YOU NEED A LAWYER?

Sometimes the law and the legal framework can get confusing and difficult to understand, especially when the issue is regarding a dispute related to family property. In such a scenario, one may not realize how to determine the legal issue, the area to which the issue relates to, whether the issue requires going to court and, how the court procedure works. Seeing a lawyer and getting some legal advice can enable you to comprehend your choices and can give you the certainty to enable yourself to determine your legal recourse.

An experienced property attorney can give you expert advice on how to handle your property issue owing to his years of experience in handling such cases. An experienced property lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get your share in the property as quickly as possible.

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CONSEQUENCES OF NOT ADDRESSING THE ISSUE TIMELY

Property disputes between siblings are a common occurrence in India these days. Legal disputes over property take place across people at different levels in the society, be it households with low-income or wealthy families. Even a will as strong as iron can be challenged by the unhappy beneficiaries and the property can be put to dispute for years unless resolved by the courts. Thus, it is important to deal with the issue as soon as possible with the help of an experienced property lawyer, who can guide you with the case and can help you get your share in the property in an effective and less time-consuming manner.



 

These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.


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User Reviews


4.9 - 24 reviews
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Father died without will. How to divide property?

Manjula on Sep 13, 2020
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Very well written. Please share more info on daughters rights. Thanks.

Vineet on Oct 15, 2020
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Very informative. Got all answers regarding my partition case.

Anup on Oct 18, 2020
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please share more details on women property rights.

Shruti on Oct 11, 2020
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Need a lawyer for my family property case. Where to call?

Ekta on Sep 19, 2020
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Gave me a very clear idea of the subject.

Shivam on Sep 30, 2020
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very good article. Please provide more information on the subject

Prabhakar on Sep 21, 2020
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nice article. Thanks for the information

Bharti on Oct 20, 2020
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needed more information on the law

Chandan on Oct 09, 2020
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nice legal article.

Radhika on Oct 04, 2020
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very helpful and detailed

Virendra on Oct 12, 2020
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nice article

Shobha on Oct 06, 2020
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nice work. Learned a lot. Thanks

Gagan on Sep 08, 2020
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thanks for the advice

Ajeet on Oct 05, 2020
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Tells all the legalities about the subject. Good work.

Vikrant on Sep 24, 2020
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very informative. Can you tell more about this

Sangeeta on Sep 06, 2020
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Nicely written article. Very comprehensive.

Navin on Sep 23, 2020
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thanks for the info. How can we contact a lawyer?

Anita on Sep 09, 2020
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good article. Can you share more detail

Gourav on Sep 12, 2020
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It’s a very nice article.

Manpreet on Sep 08, 2020
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very informative.

Prasad on Oct 14, 2020
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informative

Saravanan on Oct 04, 2020
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great legal advice

Surendra on Sep 22, 2020
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Very informative and a good read as well.

Aman on Oct 05, 2020

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