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Rules: How A Property Under Occupancy By Family Members Is Divided In India


1947-2014 (Archived)
Jun 17, 2004
If you live with your spouse in a house that is owned by his parents, you might wonder if you will be asked to vacate it on their death if your husband’s siblings demand their share in the property. But the good news is you won’t have to. Under the Hindu Succession Act, there are rules as to how a property under occupancy by family members can be divided. The Hindu succession laws are applicable to Buddhists, Jains and Sikhs in addition to Hindus.

If the matter goes to the court

Several families sort out matters and divide properties amicably, but this may not always be possible. If the matter goes to the court, the court will first ask the legal heirs, i.e. those who have the right to obtain possession to the property upon death of the house owner, to determine if the property can be divided by metes and bounds, i.e. by measurement. This means that a physical division of the property will first be attempted so that each heir gets an equal share. For instance, if the deceased owned a two-storeyed house and has two children, then each of them will get one floor each, though the market valuation of the two may not be the same. So, the two children will be asked to settle the difference in cash.

If physical division is not possible

If physical division of the property is not possible, then one or more heirs will be asked to buy out the share of the other. For instance if you and your husband are staying in your parents-in-law’s flat, then on their demise, since a division by metes and bounds is not possible, as a single flat cannot be physically divided among the siblings, you will be asked to buyout the share of your husband’s sibling by paying to him/her the cash equivalent of her share. This is called right of pre-emption.

If the share has to be sold to an outsider

If no one within the family is in a position to buy out the other and one or more of the shares have to be sold to an outsider, then that can be done as a last resort, but the outsider who buys the share cannot ask to occupy the premises while the family still occupies it. He is only a titular owner and can hold it as an investment. The outsiders can claim their share of the property (physical possession) only when the family somehow physically divides the property or liquidates it.

The last option is to liquidate the property and divide the proceeds among themselves.




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