Where there are inheritances to be shared with several heirs, they must be divided, and this is referred to as the distribution of property or the division of property in compliance with the law. The Partition of Property is the division made between the heirs of the hereditary assets.
This Partition of Property may be carried out by the same deceased before death, by means of a will, by the same deceased before death.
What is to be done while dividing the property?
The Civil Code provides that husband, wife, father, mother, son or daughter are shareholders in the distribution of the property of Sagol (joint or paternal or ancestral). The principle of division of property between members of the family, whether son, daughter, father, mother or husband, is based on JIYA JIYA (जियजिय). Jiya Jiya means to distribute the property to every person in the family.
This means that each shareholder has an equal share of his or her ancestral property. That provision applies only to shareholders of the same level.
The father and mother of both the elder and younger brothers living in a joint family have an equal share of the property. The wife gets her share of property from her husband’s share of property.
How is the property distributed between the father and the mother during the division of the property?
Many people in the village still have the misconception that, while dividing the property, only their older sons are entitled to share the property, whereas they are not liable to share the ancestral property. But this is just a misconception, as stated previously.
There are many people who still believe that parents have to keep jiuni (property set aside or earned by their parents on their own) in order to make their living, or that their mother and father can only obtain one share of the property.
However, both father and mother must understand clearly that they also have the same right to property as their sons do. The recently passed Civil Code states that if a person (mother and father) has acquired a share of jiuni before the act comes into effect, it will be considered as a share.
In the event of a sudden death of the shareholder before the division of the property or during the lawsuit on the division of the property. This means that in the event of a lawsuit seeking Partition of Property is filed, in the event of the death of an unmarried or childless son or in the event of the death of a father.
The share of the deceased shall be merged into the original share and all other shareholders shall receive the equal share.
What kind of lawsuit should a woman file in the event of the husband’s negligence?
The wife has the right to receive the maintenance or support property from her husband for her livelihood. She is also entitled to claim the share of her property in the property of her husband.
The person who has already taken the share of his property is not allowed to claim the maintenance allowance, but even after filing the maintenance allowance, it is possible to obtain a share of the property instead of a maintenance allowance. However, the right to claim for maintenance costs ends after receiving the share.
What should be done to prevent the sale or transfer of property to others or collateral in the course of litigation?
In the event that the transfer and sale of property to someone else is restricted or prevented while the Partition of Property case is ongoing. The restraining order may be made by filing an application in accordance with the Civil Code.
What kind of property can be divided?
In accordance with the Civil Code and the Partition of Property principle, the following assets are possessions which may be shared between the shareholders:
I. Patrimony Property
II. Increased and added property of ancestral property
III. Added or extended property with an ancestral or patrimonial property investment
The provisions laid down in Article 6 of the Evidence Act 2031 clearly set out the type of property to be considered ancestral and not ancestral.
This Article also stated that, unless otherwise established, property registered in the name of any shareholder shall be considered an ancestral property.
Property acquired through the personal knowledge, skills or efforts of the shareholder.
If the shareholder has earned the property through his own personal knowledge, skill and effort. That kind of property is his own private property, which he doesn’t have to share with others. And other shareholders are also unable to claim their share of such property.
In the case of a woman, her dowry or the property of her own earnings.
- If a woman has property collected as part of a dowry, or if she has brought the property from her maternal home, or if she has earned the property on her own. Can such a property be shared or divided?
No, such property is considered to be the joint property (स्त्रीधन) of a woman. This property cannot be shared or partitioned.
In the case relating to the division of property, what do the terms Mano Separation Date (Perhaps) and Tayadati(Perhaps) mean?
Mano Separation Date is the date on which the kitchen of the household is divided into two or more family members who are present. For example, if there are two brothers, including the mother and the father, who share the home. The Tayadati process is considered to be one of the most critical steps in any division of property lawsuit.
The procedure for determining the amount of property to be divided between the plaintiff and the defendant is called Tayadati. The plaintiff must submit the details of the entire property, which is the name of the plaintiff, the defendant and the shareholder, together with the complaint at the time of the lawsuit under the current Civil Code.
As the list is called Tayadati in Persian, the act of asking for a list of assets is called Tayadati. In the past, the procedure for dividing the property is explained in Sections 20 to 24 of the Civil Code. The person who has to submit Tayadati should not, during the division of the property, conceal the details of his property.
It should also disclose the details of the loans and the details of the mortgaged property. Before the court decides to set aside the share, it maintains the date of Mano Separation between the plaintiff and the defendants.
The court then asks for the details of the loans, the mortgaged property, and the Tayadati. Thus, when the court asks for a list, the court asks for the Tayadati before the date of Mano’s separation. And this property is only shared by the shareholders. So sometimes the set date of Mano’s separation becomes the basis for the division of the property. The general rule as to the date of Mano’s separation is as follows:
- In the event that the plaintiff and the defendant agree on a date such as the date of Mano’s separation, the same date shall be maintained as the date of Mano’s separation.
- Even if the plaintiff and the defendant do not agree on certain dates, if there is evidence that shows the date of Mano’s separation. Then the same date shall be considered the formal date of Mano’s separation. In this regard, if it is established that only movable property has been divided between the plaintiff and the defendant, the date of distribution of movable property shall be maintained as the date of separation of Mano.
- In the absence of any corroborating evidence, the day before the complaint lodged shall be regarded as the date of Mano Separation. Thus, the assets and the debts before the date of Mano Separation shall be divided equally between the shareholders.
- If someone wants to argue that the property should not be divided before that date, then he or she has a burden to prove with the evidence that he or she can support his/her claim.
Under the current civil code, the division of property must be clearly complained at the outset. If a shareholder wishes to live separately after receiving his share, he must file a complaint with the details of the date of separation of Mano, the detailed information on his property and, as far as he knows, the detailed information on the property of the other shareholders (movable, immovable, Tayadati).
According to the Civil Code of Nepal, the date of Mano Separation (Mano Xutaeko Miti) should be considered as the following:
- If the date of separation of Mano is in written form, that date shall be regarded as the formal date of separation of Mano.
- However, unless there is a written form, all shareholders agree on the dates. That agreed date is then considered to be the date of Mano’s separation.
- If an agreement cannot be reached between the shareholders, then, as per Section Kha, the date before filing the complaint shall be regarded as Mano Separation.
Similar manner, in response to the allegation, the respondent or the defendant must explicitly state whether or not he is subject to liability to share his property. If he agrees to share the property, he must submit to the court the detailed lists of movable and immovable property and the loan in his name at the time of the reply.
In the event of the birth of a new shareholder following the filing of a complaint concerning the issue of the share or if the status of shareholder is determined by marriage, the question arises as to what the status of such shareholder would be. In this regard, some principles have been formulated by the former Partition Act No. 11, the Civil Code and the Hon. Supreme Court.
According to these principles, a new shareholder born after the Mano separation date shall receive the same share as the other shareholders. In the same way, the wife who is married while the issue of the share is subject to a court ruling also receives the same share as the other shareholders.
What does Ansh Dapot mean when it comes to division of property?
If the plaintiff conceals the Tayadati at the time of filing a complaint in the court. If, at the time of responding to the complaint, the defendant or respondent conceals information on the property in his/her name.
Then the act of concealing the property details is called Ansh Dapot. According to the Civil Code, no one is allowed to cover up the property to be distributed. If, at the time of division of property, the shareholder hides the property of his or her name from the court.
And if such conduct is established in a court of law, the concealer will not be allowed to share in such property. Such hidden assets shall be shared equally among the other shareholders.
If any shareholder comes to know that one of the shareholders had hidden the property of his name at the time of the lawsuit on the division of the property. The other shareholder is then entitled to bring an Ansha Dapot lawsuit against the concealer before the court.
However, the Supreme Court held that no one providing the Tayadati had to give details of the property in his or her name. Such a case cannot fall within the jurisdiction of the Ansh Dapot case. The person responsible for providing Tayadati must provide his or her detailed property information.
Except for the provision in court of Tayadati, where registration is made after the property has been divided into the household on consensual understanding. Then, in such a case, the detailed information on the property is not to be submitted to the court and the case cannot be regarded as Ansh Dapot. In the case of proven Abanda, however, all shareholders have the same right to property.
What is Abanda Property? What is the difference between Abanda and Ansh Banda or the division of property?
If a part of the ancestral property has already been divided between the shareholders and if some of the assets are still to be divided, the remaining property is considered to be Abanda Property. All shareholders shall have equal rights to such property. Sometimes a lawsuit may be brought against ancestral property, some registration may be pending.
Because those properties could not be shared at that time. The Civil Code has made provision for legal action to be taken against such property as long as the shareholder is alive. The Supreme Court ruled that any patrimonial property which is under the name of any shareholder but which has not been defined as a share of any person shall also be regarded as property of Abanda.
The law does not recognize the division of property that takes place in households. Article 221 of the Civil Code makes it clear that the division of property which takes place must be registered and transferred in writing.
A written document should be prepared during the property division process, a witness should be present and all the shareholders, the witnesses, must sign a written document on the division of property. After due process, the written document should be transferred from the relevant law office.
If the shareholder has divided the property and taken his/her share of the property before the 27th of Poush, 2034 BS or one of the shareholders has taken his/her share of the property with the act of household deed and has left home, or the shareholder waives his/her right to property or has sold his/her immovable property.
Thus, although the property is not divided and no record is registered in the relevant office or transferred in writing, the division of the property is considered to be a division of the property in a formalized setting.
What does a waiver of the right to property mean? Is it lawful to waive one’s right to property?
Pursuant to Article 218 of the Civil Code, provision has been made to waive the right to property. A shareholder may waive his or her right to property with or without taking part in his or her share or may take some form of cash or other form of property.
If a shareholder has his wife, husband, son, daughter of age, then in such a case it is vital that they give their consent to waive the right to property. Only waiver of the right to property shall be deemed to have taken place. When the right to property is waived. It is considered that he has a share from his own.
If any shareholder intends to waive his right to property, he or she must register it with the Land Revenue Office in accordance with the law. The law provides for the waiver of the rights to property, the reduction of the share or the complete waiver of the rights to property.
There appears to be no legal provision allowing any shareholder to waive property rights. However, if any shareholder intends to waive their rights, they must register a written application in accordance with section 1 of the Registration Act. It suggests that the law has not prevented shareholders from giving up their property rights.
In a situation where there are four siblings (brothers) and one of them resides in the United States, can the three brothers and the parent divide the property?
The division of property, as explained above, is an equal division of property between all the rightful shareholders. If your eldest brother is in the United States, and he does not like to come to Nepal, then his share of the property should be divided, and you can divide the share of the remaining property.
What are the things to consider when dividing a property?
If you are planning to divide your property, there are certain things you need to take into account.
- If the shareholder is pregnant at the time of the division of property and the unborn child is the shareholder. The child born should then be treated as an equal shareholder. Thus, at the time of the division of property, the share of the unborn child must be allocated to the remaining shareholders at the outset of the division of property.
- There is no law as to when the property was to be divided. If there is a mutual agreement between the shareholders, they can always divide the assets whenever they want.
- Components to be disclosed when writing a shareholding document:
- Names, surnames, ages, addresses and names of the grandparents of each shareholder. But if the division of property occurs between the husband and the wife, the name of the husband and the wife should also be stated.
- If there is a loan or debt in the name of the shareholder, the amount of the loan or debt should also be indicated.
- If, during the division of the property, one shareholder lives with another shareholder, that condition should also be detailed.
- Tangible and intangible assets were received by the shareholders.
- If there is a loan or debt in the name of the shareholder, the amount of that loan or debt should also be indicated.
- If, during the division of the property, one shareholder lives with another shareholder, that condition should also be stated.
- It should be made clear that none of the shareholders has hidden any details of the assets that have to be divided equally between all the shareholders.
- If there is a shareholder who gets the property after the death of his father, mother, husband, and wife. Detailed information on such shareholders should also be provided.
- If the share of the property of any shareholder remains under the control of other shareholders, this condition should also be stated.
- Other key details
- Property divisions cannot take place in households. In the division of the property. The division of property must be made in writing. A witness is required to be present. Witnesses and shareholders are required to sign an act of property. That must be subject to the procedures laid down in the law.
- A person acting as head of the house will not have the right to give the property to a single shareholder without a formal division of the property. However, with the consent of all shareholders, any shareholder may have a share of the property. In this way, property belonging to one’s share may, to any extent, be granted to any shareholder even if other shareholders do not agree.
- From whom do those sons and daughters who don’t know their father’s identity get their share of property?
Sons and daughters who do not know their father will only get a share of their mother’s property.
If a man has more than one wife, they will only receive a share of their husband’s share. If the shareholder has taken his share of the property and parted with his wife, son and daughter, and if the shareholder is remarried.
And if a son or a daughter is born of such a married wife, then a wife or a son of that kind, the daughter will have only the share of the property of her husband or father.
What information is needed in order to file a case for the division of property?
If you want to file for the property division, you need the following information:
Names, ages, and telephone numbers of all shareholders
Total ancestral land, its plot number, area, and estimated value;
All of this information should be collected in detail.
Details and estimated value of the capital asset, if any,
If cash is available, details of cash, bank balance, shares, debits, and treasury bills,
Details and estimated value, if any, of livestock
Details and the estimated value of gold, silver and jewelry, if any,
Details and the estimated vehicle price, if any
If you have filed a case for division of property, how will the court deal if your father or husband has no interest or does not show any list of property?
If, after a complaint or a reply in respect of a case filed for division of property, it is established that the property needs to be divided. Or if the list of assets has been provided to the court with a complaint or response.
In such a case, the court will have to distribute the share of the shareholders’ property on the basis of records showing that it is the total property to be distributed and that the property is not concealed. If the list of properties is not submitted to the court for a complaint or a reply.
The court will then have to ask the shareholders for a list of assets by providing a limited period of time. If the shareholder submits a list of the assets within the prescribed period, the court should divide the assets between the shareholders after the formal paperwork has been concluded.
However, if the time limit expires and the defendant fails to submit a reply to the court, the court will divide the property on the basis of the list of assets that the shareholders submit to the court.
What should be done if the husband or father refuses to make a list of properties available for distribution?
If the person who should provide the list of properties refuses to appear before the court. Then the court can send some of its staff to take the house key. Either in the presence or in the absence of the owner of the house, or in the presence of the person seeking the share of the property. The house shall be opened in the presence of at least two representatives of the local body, and the Tayadati may be drafted of the property.
If the person who is to give the list of properties does not provide the list, or if he passes the time limit, without giving any answer to the court. Nor is a person who has filed a case for division of property able to provide the court with a list of property.
Then, in such a case, the court will keep the case pending, so that the Partition of Property may take place only after the list of properties has been submitted. In the future, if the applicant is able to submit the list of assets to the court, the court will divide the assets between the shareholders on the basis of the previous paperwork.
If any shareholder is not in a position to own or use his share of property because it is not a fair deal In such cases, the equivalent property will have to be paid out in proportion to all other shareholders.
However, in the event of division of property, unless there is a mutual agreement between the shareholders, any shareholder is not allowed to exchange his property with others simply because he does not like it or has damaged the property after the division has taken place.
How will the court divide the property if the property is mortgaged and the court orders the Land Revenue Office to freeze the property?
If the shareholder appears to have mortgaged the property to be divided, the court, if all the shareholders agree, shall release the mortgaged property from the ancestral property. Or the requirement to release the assets will be divided among the shareholders. If not all shareholders have entered into an agreement and the person acting as head of household is the person who has mortgaged the property.
Or any other person in the household who is of age has mortgaged the property by the signature of the head of the household. In other circumstances, where the shareholder has mortgaged the property, the court will release the mortgaged property from its share of the property. Or the requirement to release the property will divide the property between the shareholders.
How does the court distribute the ancestral loan at the time of the division of the property?
The court should only distribute the loan as claims of the lender. When dividing the property, consent must be given to the lender so that no shareholder has the sole responsibility to repay the ancestral loan. Even if the shareholder is responsible for repaying the ancestral loan, unless the lender agrees, all shareholders will receive an equal share of the ancestral loan.
According to the recently passed Civil Code, if a person who has no right to claim a share of the property, the court will check the record and search for the property claimed. If a record of the claimed property is found, it shall be made payable to the defendant on the basis of the claimed property.
If the record of the claimed property is not established, the status of the claimed property will be examined and, accordingly, a reasonable amount of compensation will be paid to the defendant.
In accordance with the Civil Code, what is the time limit for filing a case for the division of property?
If all shareholders have used properties, whether the division of property has taken place or, in the event of division of property, Goshawara is drafted or not. Then, in such a condition, a lawsuit for the division of property may be filed at any time.
If the property has already been divided and the deed of division of the property has also been signed. In the event that any shareholder is not satisfied with the way in which the property has been divided, a complaint must be lodged with the court within three months from the date of the division.
Should you have any questions, please do not hesitate to contact us.
Alpana Bhandari is a founding partner and CEO of Prime Legal Consultants and Research Center. She graduated from American University Washington College of Law. She specializes in corporate/arbitration and family law.