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Partition Of Property Under Hindu Law
Property

Partition Of Property Under Hindu Law

Partition is the process of division of property. The Hindu Succession Act, 1956 ("Act") regulates the partition of property under Hindu Law. 

There are two types of partitions under the Hindu Succession Act. 

  1. Self-Acquired Property 

  2. Ancestral Property 

Property obtained by someone in their lifetime and not inherited from their ancestors is Self-Acquired Property. On the other hand, Ancestral property is property inherited from one's forefathers. Further, Succession itself is of two types: Testamentary Succession and Intestate Succession. 

  1. Types of Succession

As noted, Succession can either be Testamentary or Intestate. Testamentary Succession occurs if there is a will. As long as the will is valid and enforceable, the will has to be executed, and the inheritance provisions do not apply. Part VI of the Indian Succession Act, 1925, further elaborates on provisions related to wills. The will should be clear, reduced to writing, signed by the testator and two independent witnesses. 

By contract, Intestate Succession is primarily covered by the laws of inheritance. For Hindus, these are governed by the Hindu Succession Act, 1956. 

  1. Rules of Succession under Hindu Law

Succession itself depends on whether the property is a self-acquired property or an intestate property.

  1. Succession of Self-Acquired Property

Self-acquired property is also known as coparcenary property. Individuals only have an "interest" in such property, and they receive a share in the property if they have an interest in it. Thus, the "devolution of interest" is an important concept.

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Section 6 of the Act comprehensively discusses the devolution of interest in cases of the death of a Hindu male. The property will devolve to all coparceners within the dictates of Mitakshara law. However, the Act is progressive and has included women and female heirs within the coparcenary. 

  1. The succession of Ancestral Property

The rules of property division are given under Chapter II of the Hindu Succession Act, 1956.

A Hindu male's basic rules of Succession are codified under Sections 8 and 9 of the Act. Under these provisions, the order of Succession is as follows:

Relatives specified in Class 1 > Relatives specified in Class 2 > Agnates of the deceased > Cognates of the deceased. 

The Succession is exclusive. This means that if there are any Class 1 heirs, they will all receive a share in property and exclude heirs from other categories. If there is no class 1 heir, then all members of Class II will exclusively receive an a of the property, and so on. This is the order of Succession clarified in Section 9 of the Act. 

The list of relatives under Class I & II are mentioned under the Schedule to the Act. Class I heirs primarily include the son, daughter, mother, etc. – Usually, the deceased's closest relatives. Class II heirs are more distant but somewhat related: they include the father, son's daughter's son, son's daughter's daughter, and so on. Sections 10 and 11 state the rules of Succession for Class I and II heirs.

The property of an intestate shall be divided among the heirs in class I of the schedule by the following rules- 

Rule 1: The intestate of window (s) shall take one share each. 

Rule 2: The surviving sons and daughters and the mother shall take one share each

Rule 3: The heir in the branch of each pre-deceased son or daughter shall take one share between them. 

This is also applicable to Class-II heirs.

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Finally, property devolves to cognates and agnates. A cognate is any blood relative from the mother's side, while an agnate is any blood relative from the father's side. While both Class I and II heirs receive equal shares, Section 12 of the Act mentions the hierarchy in Succession among the cognates and agnates. 

For females, similar rules are followed. These can be found under Sections 15 and 16 of the Hindu Succession Act.

How to Check Property Details Online in India?
Property

How to Check Property Details Online in India?

Checking the property details can be a very tedious job. However, you should always ensure that the person from whom you buy or rent property is the rightful owner. Now, one can check property details online as well. Let us see how!

1)  How to check if property is legal or not online?

Every state in India has an Online Registration Information System. It is a government portal where all the information about property is available. One can check the status of the property by going on the official website of the State-specific Online Registration Information System. It is a government portal where all the information about the property is available. For example: Property Details of Maharashtra and Delhi can be found on “IGR Marahstra” (https://igrmaharashtra.gov.in/) and “Delhi Online Registration Information System” (“DORIS”) (https://doris.delhigovt.nic.in/) repectively.

Next step is to go to the E-search option available on the webpage. For example, in DORIS, it is the first option from the left. After clicking on E-Search, a new window will open where one can find different options to search the property's details. One can search and verify the correctness of the property details through “Name or Property Address”. If the owner and property details are genuine, one can say that it is a legal property. One will also have to verify various property documents to ensure the property complies with the laws of state/centre.

2)  How to check property ownership online in india?

Every state has a separate website for property detail. To check for the land ownership, one needs to visit the official website of the same. Land records of the concerned states will be available on their respective official website. For example, In order to check the land records of Maharashtra, one will have to visit https://bhulekh.mahabhumi.gov.in/. Though the contents are in Marathi, you will get an option to translate the web page to english on the upper right hand corner. For Delhi the official website is https://dlrc.delhigovt.nic.in/Index.aspx. Most important thing to note here is, the interface for every website will be different. For example: After going on the official website of Maharashtra one will see a Map. One can either put the details manually to search or click their respective district on the map which will then direct the user to the records of the particular district.

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3)  How to verify property documents?

Property Verification is perhaps the most important part while purchasing a property. Due Dilligence of documents is of utmost importance as it gives a clear idea about whether the property is legal or not. Whether the property title is clear helps us check whether the property has some loan which is due, etc.

Nowadays, various legal service providers can verify documents online. One can also visit property lawyers in the district court who can verify the documents for the clients.

Below-mentioned documents are required for verification

  1. Sale Deed

  2. Power of Attorney

  3. Property Title

  4. Agreement to sale

  5. Encumbrance Certificate, to ensure there is no mortgage or lien on the property.

  6. Any other document like Partition deed or Will depending upon the context.

4)  Legal and Technical Verification of Property: 

Legal and Technical Verification are a rather safer way to verify a property. Whenever a lender goes to the bank to take Property Loan. Banks (Housing Finance Bank or Non-Banking Financial Companies) will scrutinise the documents for the lender before approving a loan. The Legal Team of the Bank does the documentation in-house. This ensures that lenders are not getting involved in a dubious and fraud transaction and it also helps banks while giving out loans based on the genuineness of the documents.

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Technical Valuation team carries out Technical Verification of Property. Prior to granting a loan to a lender, the Valuation team physically examines the commercial capability of the property. They Physically examine the property, the condition of the property, value for which the property could be sold, the market rate and the area where the property is situated. This is done to ensure that the bank is able to recover the loan, by selling off the property in an open market, in case there is a default by the lender. For example: If the property is worth Rs. 50 Lakh in the open market, the Bank will be willing to give a loan to the lender for around Rs. 50 Lakhs only. Thus even though the lender fails to repay the loan, the Bank can sell off the property to recover the money. In such a case the Bank won’t fund 70-80 Lakhs for the same piece as it will be next to impossible for them to recover that money.

You should always before buying property check the title and other information regarding the property. With all states now having their own websites and facilities to check property details online, it is easier to assess the ownership of the property.

Power of Attorney in India for Selling Property
Property

Power of Attorney in India for Selling Property

NRIs use Power of Attorney (‘POA’) as an instrument to appoint an agent/attorney to help them sell their properties in India. NRIs find it difficult to come to India and sell their property, and hence, the concept of a power of attorney exists. A power of attorney authorizes its holder to enter into transactions and take decisions on behalf of the actual owner of the property. 

Special Power of Attorney for Purchase of Property: India Format

You can find the format of a power of attorney here,. You should draft a POA on a green stamp/bond paper or a non-judicial stamp paper of INR 100. The NRI should authorise the power of attorney himself and the Indian Consulate in the country of residence. Once authorised, the NRI should send a power of attorney to the sub-registrar’s office and relevant witnesses, identity proofs, and photograph copies.

You should include certain clauses in a PoA to ensure that no loopholes could pose a threat to the NRI/owner/principal in case of a dispute. Some of these clauses are:

  • Full details of the parties, including relevant information such as name, age, address, occupation, etc.

  • The reason for entering into this agreement (sale or purchase of property by the NRI in India)

  • Termination clause to ensure that the power is not misused beyond the fulfillment of the objective of this agreement.

  • The clarity in the specific powers granted to the agent and the attached responsibility.

Power of Attorney by NRI to Buy Property in India

NRIs often purchase property in India for investment purposes or to have a visiting home/holiday home. However, most NRIs do not have the time to come to India to execute the Sale Deed/Agreement for Sale transaction. Therefore, a power of attorney for purchase of property by an NRI facilitates sale transactions legally. Moreover, NRIs would require a special power of attorney to execute a transaction. Through a general power of attorney, no NRI would be able to sell or purchase property in India. 

A special power of attorney gives an agent the power to act on behalf of the principal (NRI) for a specific matter, including but not limited to taking legal or financial decisions. 

To have an effective POA for the purchase of property, an NRI must sign the POA agreement in the presence of a consulate officer or Notary in the country of residence. Further, such consulate officers must attest to the agreement for it to be valid. The NRI should register the POA under the Indian Registration Act, 1908, to make it valid and enforceable in India.

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Power of Attorney to Sell Property in India

Power of attorney to sell property in India also requires authorization from the country of residence. Let us examine a few countries of residence and the procedures related to power of attorney therein.

Australia:

An NRI must book an appointment with a Notary in Australia where the NRI and two witnesses and the Notary officer would sign the POAon a green stamped or bond paper. 

After notarizing the POA, you would send it to the Indian Consulate, who would stamp it with an Apostille by the Department of Foreign Affairs (DFAT) and then send it back to India to the appropriate authority duty charges prescribed by the local government.

Then, you can register the agreement, and the transaction can legally take place.

UK:

There is a 3-step process when an NRI from the UK wishes to purchase or sell property in India. 

Firstly, an attorney from India must draft the POA according to the needs of both parties and according to the applicable laws (ICA, 1872, or RERA, 2016, etc.) in India.

Secondly, the POA must be sent to the place of residence, i.e., the UK, where you can get it notarized by a Notary Public for a charge between 20 to 100 pounds. The concerned NRI, along with two witnesses and the Notary, will have to sign the document. After notarization, the Indian Consulate, located at the Indian High Commission, London, would attest the same. 

Thirdly, the document can be sent to the attorney in India where registration happens, and the transaction can legally take place.

USA:

There is a 3-step process when an NRI from the US wishes to purchase or sell property in India.

Firstly, an attorney from India must draft the POA, and the NRI and two witnesses should sign this agreement. The notarization of the document should be done in the presence of a Notary Public. Further, it must be sent to the Indian Consulate for his/her signature. An appropriate fee would be charged for attestation, notarization, etc.

Secondly, the POA must be sent to the Secretary of State for an apostille from the Department of State, Authentications Office, which will use the Seal of the US Department of State to authorize the document's validity will be sent overseas.

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Thirdly, the agreement shall be sent to the attorney in India for the legal execution of the transaction.

The POA is a powerful document and must be drafted between two parties that trust each other. The agent must be selected with caution as the agreement would transfer significant power to decide the owner/principal to the agent. A poorly drafted agreement that does not consider the risks involved (such as consideration, percentage of share between co-owners, obligations of agents, the role of decision making by an agent, etc.) would cause litigation which would severely affect the parties.