Since land is considered to be one of the most important assets, the range of land-related disputes is huge. However, in this explainer, we will focus on the more common types of disputes, which include:
- Right of Inheritance Disputes
- Partition Disputes
- Land Measurement Disputes
- Land Encroachment and Boundary Disputes
- Right of Way Disputes
- Land Ownership Disputes
When it comes to immovable property, inheritance refers to the transfer of a property’s ownership after the death of an individual. The ideal way to ensure smooth transfer of property ownership following someone’s death is through a will.
However, if there is no will, i.e., an intestacy, law of inheritance applies to decide distribution of the property. In India, personal laws, customary laws and legislative laws govern the law of inheritance of property e . The broad laws are the Hindu Succession Act 1956 and Islamic personal laws.
Under the Hindu law of inheritance, a person/owner can deal with their self-acquired property as they like, but there are restrictions about transfer of ancestral property. The law gives certain family members a birthright to ancestral properties. Brothers and sisters are entitled to equal shares in the property of their mother or father under the Hindu law of inheritance. Here, the terms ‘son’ and ‘daughter’ include adopted sons and daughters, but not stepchildren.
If the survivors have a dispute over immovable property, and the owner of the property does not have a will, they can file a suit before court.
In the case of Muslim law of inheritance, the personal laws that apply depend on which sub-sect one belongs to, i.e., Sunni or Shia. The laws are not codified, which means that there is no act setting them down. For Sunnis following Hanafi Law, personal law restricts legacies to a maximum of one-third of the estate remaining after taking care of funeral expenses, outstanding wages of domestic servants and debts.
A will is a written document a person makes to describe how their assets and wealth are to be distributed among their descendants. The making and execution of wills is governed by the Indian Succession Act of 1925, which applies to all religions except Islam.
Drafting a last will and testament ensures that your property is safely and securely distributed amongst your beneficiaries, as per your wishes. This would avoid intestacy and minimize the chances of a dispute over right of inheritance and avoid long-drawn court processes. You need to name an executor (who will carry out all the proceedings of the will) and a legal guardian for your children if they are minors.
To know more, do read the Nyaaya explainer on Wills.
Partition disputes refer to disputes around dividing the property of a Hindu Undivided Family as per the Hindu law of inheritance, i.e., Hindu Succession Act 1956.
There are two ways to resolve disputes about property partition: a family settlement agreement and a partition suit.
Family Settlement Agreement
A family settlement is a an agreement among family members, usually made to avoid court battles, by splitting up the family property through mutual understanding among the family members. It follows the same format as that of a partition deed. It is not mandatory to register and stamp the family settlement agreement. However, all family members should sign it voluntarily, that is, without any fraud or coercion or undue pressure from any family member or anyone.
A suit for partition of property, is a court case filed when the family members cannot agree on the terms and conditions of dividing the property. In such cases, the family members usually want to divide the property according to their shares in it. The first step here is to carefully draft and send a legal notice to the other legal heirs of the property related to family property partition/ settlement.
If there is a dispute between owners who have land next to each other about the measurements of their plots, they can resolve it by getting assistance from the government surveyor to conduct a joint survey. The ownership documents and the information in the revenue records have to be looked into while settling such a dispute. You can find them in the Record of Rights (RoR) at your local tehsildar’s office or online, if the state has digitized RoRs available. Any encroachment by one party on the land of another has to be removed. For instance, such encroachments may consist of building a fence that trespasses into another’s property, extending a building beyond one’s own property boundaries, overhanging tree branch protruding into neighbors’ property which could potentially cause injury/damage, etc.
If that is not done, the aggrieved party can go to court.
If someone encroaches or trespasses on your property or a construction extends beyond the boundary line, there are three ways to resolve it.
Trespass: If someone enters your property:,
- with the intention to commit an offence or to intimidate, insult or annoy you, or
- enters lawfully but remains there unlawfully,
it can amount to criminal trespass under the Indian Penal Code. You can file a criminal complaint against them.
Demarcation of property: The second option is to demarcate the land, by building walls or fences. It fixes the boundaries of the land, assures the protection of the demarcated land and keeps invaders away.
Civil suit for encroachment of property: The third option is to move an application in a civil court and seek orders against the encroachment. You can ask for a permanent injunction stopping anyone from disturbing your possession of land.
Easements or right of way is an owner’s or occupier’s right over other land, not his own, which allows them to enjoy their own property. It includes the right to pass over the land of another person uninterruptedly to enjoy one’s own land. If there is obstruction of this right, you can sue for an injunction to stop the obstruction or for damages.
Ownership rights on land can be acquired by succession, survivorship, inheritance, partition and purchase. Disputes can arise out of objections about validity of rights of owner/seller or eligibility of purchaser and breach of government rules and regulations to hold the land. The manner in which these disputes are dealt with, is very specific to the facts of each case and needs specialized domain knowledge. It is important to consult a lawyer before taking any steps towards litigation. There are ways to check buyer and seller eligibility in a transaction of sale of immovable property. More information on how to check the eligibility is available here
The location of your property is one of the main considerations in deciding which court you should approach to file a suit about immovable property. The court must have jurisdiction over the place where the disputed property is situated. If a property is located across jurisdictional boundaries of more than one court, the suit can be filed in any of those courts. Please consult a lawyer before taking such steps.
Besides approaching courts, disputes can be settled with the help of Lok Adalats. This is an alternate dispute resolution mechanism recognized under the Legal Services Authorities Act, 1987.
Lok Adalats are a forum where disputes/cases pending in the court of law or at pre-litigation stage, like land and property disputes, are settled/ compromised amicably. The decision of the Lok Adalat is final and binding; there is no provision for appeal. However, if the party is unsatisfied with the award, they can initiate the litigation process.