Property Disputes amongst siblings – Family Property dispute

Property disputes are very common among siblings nowadays. The property issues have become serious and a bone of contention among family members. Each member is wishing to have the maximum share in the property ignoring the needs of other siblings. There are many factors of dispute that include primarily greed but also include lack of awareness and clarity on the property inheritance laws.

India follows the culture of joint families that not only lives together but also holds property together. The property issue creeps up when the eldest member of the joint family dies then the problem of distribution of property arises. The property dispute among siblings is related to their respective shares in the joint property that they will get at the time partition[i].

Before moving to the solution of resolving the dispute between siblings; let’s first understand some basic legal concepts regarding property acquisition through partition, will, survivorship, etc.

 

Types of property

Ancestral Property: These are the joint family property that is acquired for generations and becomes part of the inheritance in all the members of the family or the members who have rights in the inherited property by law.

Self-Acquired Property: The property that is earned by the person himself, the self-acquired property is only inherited through a will by the person whose property it is to the person who he/she wants to give.

 

Joint Family/ Ancestral property

Joint family or coparcenary property is that property in which every coparcener has a joint interest and over which he has joint possession. There may a case where a joint family does not own any property, but once ancestral nucleus is proved, after that all the subsequent acquisitions of property irrespective to the fact that whether they stand in the name of Karta or not is presumed to be joint family properties. But it can be rebutted by the person setting up the said properties as his self-acquisitions.

In the case of Baikuntha Nath Paramanik v. Sashi Bhusan Paramanik & others, [ii]– It was held by the Apex Court that when a joint family is found to have a nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions.

 

Legislations in India governing property issues

We have the Indian Succession Act and the Hindu Succession Act; laws of intestate succession are different for Hindu, Muslims (different property laws for Shias and Sunnis) and Christians. Even though we have codified laws but there exists a difference in distribution of property rules if the property is ancestral or self-acquired. 

Under the Hindu Succession Act, a person owing a self-acquired property is free to deal with it whereas the ancestral property cannot be distributed as per the family members’ own will. The coparceners that comprise a small unit within a family have a birthright in it. The siblings are entitled to equal shares in their parents’ property under Hindu law. The terms son and daughter include adopted son and daughter but not stepchildren. Hence, siblings who are stepbrothers or step sisters cannot claim a share in the property of their father.

 

Doctrine of survivorship

This doctrine simply dictates the shares of the coparceners and states that their shares are varied and those are subject to change regarding to deaths and birth in the joint family. If there is a death in the family then the coparcenary share shall increases and with a birth in the joint family, share will decrease.

 

Partition

Partition refers to a situation when joint ownership has transformed to separate ownership of the individual coparceners. It may be defined as, “The crystallization of the fluctuating interest of a coparcenary property into a specific share in the joint family estate.”  The concept of coparcenary is an integral part of the Hindu Joint Family Property.

In the case of Syed v. Jorawar[iii] – It was observed by the Privy Council, “It is a settled law that a severance of estate is affected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place.”

Partition among Hindu Joint Family refers to severance of joint status and unity of possession among the members of the family. It can take place through various methods such as agreement, notice, Will, and through certain other modes. Under Mitakshara School, the partition may take place by stripes or by branch. Under the Mitakshara School partition of the joint family does not only refer to the division of property into specific shares, but it also refers to the division of status.

Under this School division of property after partition includes-

Firstly: Severance of status or interest;

Secondly: The actual division of property, known as partition by metes and bounds.

 

Modes of Partition

Partition or severance of joint status or interest is affected by clear and unequivocal expression by words or conduct of an intention to partition. There are various modes of partition such as through filing of a suit; sending of a legal notice; through arbitration or it may also be done through arbitration proceedings etc. Some of the relevant modes of partition of Joint Hindu Family Property include- partition by mere declaration, partition by act of coparcener or through notice.

 

Dispute arising out of Will: Self-acquired property of deceased

If there is a Will even then dispute can arise among the siblings as they may be dissatisfied with the tenor of the Will and hence they may challenge the distribution of property according on the grounds of improper execution, forgery, fraud, etc. The siblings may claim that the Will is invalid.

 

How to Resolve Property Disputes in India?

You can resolve property dispute through two ways in India:

Settlement: This is a recommendable way to settle the property dispute with your sibling.The settlement of dispute involves the process of sitting across the table and mutually deciding how the assets/property would be divided. This may either be done mutually amongst your siblings or through a neutral third party. It is advisable to sign a settlement agreement with your siblings and take advice of a legal expert for the same.

 

Family settlement

It is amutual agreement between family members regarding the distribution of property assets. The agreement includes detail of settlement between the family members with regard to car, jewelry, house, bank balance etc.[iv]. Those who do not wish to enter into long legal battles can opt. for mutual settlement that is easy and less cumbersome as compared to litigation.

The settlement document should be signed by all the family members involved. Note that a missing signature may be a ground for challenging the document in court. The document should be attested by two witnesses, it is advisable thought not a mandate. Registration Act, 1908[v] provides that a family settlement mentioning the allotment of the immovable property between the family members must be compulsorily registered to ensure that the partition deed is valid. A stamp duty is also applicable to a partition deed and the amount of stamp duty shall depend on the value of the property. This is a binding agreement on the parties signed it and it cannot be revoked casually unless there is a fraud or a coercion, etc.

Litigation: It is the means of approaching the courts to resolve property disputes. It includes lawyers, court costs, long procedures, etc. You need proper documents while entering into a litigation to resolve the dispute it includes the title deed, death certificate of karta, etc.

You have to file a suit for partition and a legal notice will be sent mentioning the property details, shares you want, etc. After receiving the notice the other party has to reply and if no reply is filed then the partition suit will be filed. The court will determine whether the party is having any right to claim the property or not? It will also determine the shares of the parties in the disputed property.

In India, property disputes account for more than half of the pending caseload in the courts. Although we have codified laws on property distributions even then dispute between parties go for ages. If you want to resolve your dispute through mutual settlement then it is advisable to take legal advice from an expert. If the parties do not wish to resolve dispute mutually then they have to file the suit for partition (in case of joint family property).

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[i] https://economictimes.indiatimes.com/realty-trends/property-disputes-family-settlement-better-option-than-approaching-a-court/articleshow/20121849.cms?from=mdr

[ii] AIR 1972 SC 2531

[iii] AIR 1922 PC 353

[iv] https://economictimes.indiatimes.com/realty-trends/property-disputes-family-settlement-better-option-than-approaching-a-court/articleshow/20121849.cms

[v] Section 17