Guide · Owning

Partition of ancestral property in India: deed, suit, daughters

How a Hindu joint family property is divided: registered partition deed or court decree, daughters as coparceners since 2005, and stamp duty by state.

Checked on against the official sources at the bottom of the page.

In short

Ancestral property held by a Hindu joint family (a Mitakshara coparcenary) is divided by partition. For the purposes of section 6 of the Hindu Succession Act, 1956, a partition means one made by a deed of partition registered under the Registration Act, 1908 or one effected by a decree of a court. Since the 2005 amendment, a daughter is a coparcener by birth, “in the same manner as son with same rights and liabilities”. In Vineeta Sharma v. Rakesh Sharma (2020), the Supreme Court held that she can claim this right from 9 September 2005, and her father does not need to have been alive on that date. Stamp duty on the partition deed is set by each state: as Payotte read the sheets, nil for ancestral property in Rajasthan, ₹15 per ₹10,000 (minimum ₹1,000) for a family partition in Kerala, 2% in Odisha.

The rule

  • Who is a coparcener. The substituted section 6 makes a daughter a coparcener by birth “in her own right” and gives her the same rights in coparcenary property “as she would have had if she had been a son” (quoted by the Supreme Court, para 60).
  • From when. A daughter born before the amendment “can claim these rights only with effect from” 9 September 2005 (para 68).
  • What is protected. The proviso keeps valid “any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004” (as quoted in Uttam v. Saubhag Singh, 2016).
  • What counts as a partition. The Explanation to section 6(5): “any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 … or partition effected by a decree of a court”.
  • Oral partition. Para 137.5 of Vineeta Sharma: an oral partition cannot be accepted as the statutory mode. In exceptional cases, a plea of oral partition “supported by public documents” may be accepted where the partition is finally evinced as if by a decree. A plea based on oral evidence alone is to be rejected.
  • Pending suits. Para 137.4: even after a preliminary decree, daughters are to be given a share equal to a son’s “in pending proceedings for final decree or in an appeal”.
  • No living father needed. Para 137.3: “it is not necessary that father coparcener should be living as on 9-9-2005”.

Partition by deed or by suit

Partition deedPartition suit
WhenAll coparceners agree on the sharesNo agreement, or a coparcener refuses
InstrumentDeed signed by all sharers, then registeredCourt decree, after a preliminary and a final decree
RegistrationCompulsory: a non-testamentary instrument creating or extinguishing rights in immovable property of ₹100 or more (Registration Act, s. 17(1)(b))A decree or order of a court is exempt from s. 17(1)(b) (s. 17(2)(vi)), except a compromise decree covering property outside the suit
CostState stamp duty and registration fee on the deedCourt fees and lawyer’s fees; Payotte did not read a court-fee scale
TimeAs long as the family takes to agreeIn 2020 the Supreme Court asked that pending matters be decided “as far as possible, within six months”

An unregistered deed that had to be registered does not affect the property (s. 49).

Step by step

  1. Find out whether the property is coparcenary. A parent’s self-acquired property passes by succession instead: see inheriting property in India.
  2. List every coparcener, daughters included, and every heir of a deceased coparcener. In a 2025 case, the Delhi High Court added a daughter left out of a partition suit as a party, applying Vineeta Sharma.
  3. Get a title search and an encumbrance certificate for each property: see title search and encumbrance certificate.
  4. Draft the deed with a schedule of each property and the share allotted to each sharer.
  5. Pay stamp duty and register at the sub-registrar’s office where the property lies: see property registration process.
  6. Mutate the records so each sharer’s name appears on the land or municipal record: see mutation of property records.

Stamp duty on a partition deed: three states read

StatePartition deedRegistration feeSource
RajasthanAncestral property: 0. Other cases: 6%1%, maximum ₹1,000, as Payotte read the sheetRegistration department rate sheet
KeralaAmong members of the family and legal heirs: ₹15 per ₹10,000 of the higher of value and fair value of the separated share(s), minimum ₹1,000 (art. 42 a (ii)). Other cases: 6% of the separated share (art. 42 b)1% of the fair value or market value, whichever is higher (family); 2% (other)Ready reckoner as on 1 April 2023
OdishaEqual or unequal shares: 2%. Tehsildar partition: 02%; tehsildar partition 0IGR fee structure

A release deed, where one sharer gives up a share to the others, is a different article: the Rajasthan sheet shows ₹500 for ancestral property and 6% otherwise. A gift has its own rules: see gift deed for property. Other states set their own rates: see stamp duty and registration charges in India and the state pages for Rajasthan, Kerala and Odisha.

Which professional to consult

A property lawyer (an advocate enrolled with the State Bar Council) drafts the deed or files the suit; this page is general information, not legal advice. A registered valuer can value each share where the duty is charged on the value of the separated shares.

Frequently asked questions

Does a married daughter have a share in ancestral property?

The Supreme Court’s answer to the reference makes no distinction: the substituted section 6 confers coparcener status “on the daughter born before or after the amendment in the same manner as son” (para 137.1). Marriage is not a condition in that answer.

My father died before 9 September 2005. Can I still claim?

Para 137.3 says it is not necessary that the father coparcener should be living on 9 September 2005. The coparcenary itself must exist on that date (para 69), and partitions and dispositions made before 20 December 2004 are saved.

Is a family settlement written on plain paper enough?

For section 6, a partition means a registered deed or a court decree. An unregistered instrument that had to be registered does not affect the property (Registration Act, s. 49). Oral partition is accepted only in exceptional cases supported by public documents (para 137.5).

Does a partition attract income tax?

Payotte did not read the Income-tax Act 2025 provisions on partition for this guide. Ask a chartered accountant, and see capital gains tax on property for a later sale.

Sources and limits

The Hindu Succession (Amendment) Act, 2005 did not open on India Code: section 6 is quoted as reproduced by the Supreme Court. The court-fee scale for a partition suit and other personal laws were not read.

General information drawn from the official sources cited and dated on this page. It is not legal, tax or financial advice: for your own situation, ask a licensed professional.

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Sources

All guides · Payotte India