Most NRI property in India is jointly held, and most owners do not realise what that means until they try to do something with it.

A co-owner can sell their own share, but the buyer steps into the seller’s shoes: they acquire an undivided share in a jointly held property, not a defined portion of land they can occupy or build on. What cannot be done without every co-owner’s agreement is dealing with the property as a whole.

Partition is what converts an undivided share into something that can actually be sold, mortgaged or used.

Why undivided shares sell cheaply

A buyer taking an undivided share knows what they are acquiring: a co-owner’s position, not a defined piece of land. They cannot occupy a specific portion, cannot build, and may face partition proceedings to realise anything. The price reflects that.

A co-owner who sells without partitioning first generally receives substantially less than their share is worth — which is itself a reason to partition before selling rather than after.

What partition does

Partition separates a co-owner’s share so it is held individually rather than jointly. Once separated, that share can be sold, mortgaged or transferred without anyone else’s consent.

Only a person with an existing share can seek partition. Someone in possession who has no share cannot.

Where a partition is filed depends on the property

The forum differs by the nature of the property, and filing in the wrong one costs time.

Agricultural land. Partition is dealt with by the revenue authorities. The power vests with the Tehsildar, and proceedings are conducted under the revenue system rather than in civil court.

Urban property. Partition is a matter for the civil court, by way of a partition suit.

Gair mumkin land within an agricultural holding. This is where the position is commonly misunderstood. Land recorded as gair mumkin — uncultivable, whether built upon or otherwise — does not fall to the Tehsildar even where it sits within an agricultural holding. Partition of that portion vests with the civil court.

A single holding can therefore require proceedings in both forums. Establishing what is recorded as what, before anything is filed, determines where the matter goes and how long it takes.

Two routes

By agreement. Where co-owners agree, a partition deed is executed on stamp paper of the proper value and registered with the sub-registrar where the property is situated. Registration is what makes it binding — an unregistered deed does not effect the division.

Contested. Where they do not agree, the matter goes before the Tehsildar for agricultural land or the civil court for urban property. The share of each party is determined and the property divided accordingly.

Time depends on whether it is contested. Where co-owners agree, a partition deed resolves matters comparatively quickly. It is contested partitions that take time, in either forum, and where a holding requires proceedings before both the Tehsildar and the civil court, longer still.

This is worth weighing before anything is filed. An agreed division that each party is slightly unhappy with will usually serve everyone better than a contested one that runs for years.

Two modes for agricultural land

Partition before the Tehsildar can proceed either by retaining existing possession or by breaking it.

Retaining possession allocates to each co-owner, so far as possible, the portion they are already in occupation of. Nobody is displaced.

Breaking possession redistributes the holding irrespective of who currently occupies what. It arises where existing possession does not correspond to the shares — where one co-owner has been cultivating more than their entitlement, or where land quality differs materially across the holding.

For NRI co-owners this is often the point of the dispute. The party in possession will press for partition retaining possession, having occupied the better portion for years. The owner abroad, holding a share on paper but nothing on the ground, is arguing for the opposite.

Girdawari and specific khasra numbers

Where a co-owner is recorded in girdawari as being in possession of specific khasra numbers within a joint holding, that recorded possession affects what they can deal with, and a sale in respect of those khasra numbers may be made on that basis.

It is not conclusive. The other co-owners can challenge such a sale — where what has been sold exceeds the seller’s share, or where the girdawari entries themselves were obtained improperly: without notice to the other co-owners, in collusion with the concerned revenue officer, or by any other unlawful means.

For an NRI this cuts both ways. A co-owner in India recorded against the better khasra numbers is in a stronger position than their paper share alone suggests. An owner abroad, recorded against nothing, is weaker than their share suggests — and may find land sold in respect of khasra numbers that ought to have come to them.

This is why the girdawari position should be established before a partition is filed, and why entries should be checked periodically rather than at the point of dispute.

Where physical division is not possible

Some property cannot be divided by metes and bounds — a single residential house being the common example, whether urban or rural. Dividing it would leave nothing usable to anyone.

In that case partition proceeds on value rather than area. Either the property is valued and one co-owner takes it while compensating the others for their shares, or the property is sold and the proceeds divided in proportion to each share.

This is frequently the position for NRI clients, where the family house is occupied by one branch and the others hold shares they cannot realise. The occupying co-owner may buy out the others at valuation; where they will not or cannot, sale is the remaining route.

Where a co-owner has mortgaged before partition

A co-owner can only encumber their own share. Where one has mortgaged the property before partition, the mortgage attaches to the portion allotted to that co-owner on partition — it does not follow the other co-owners’ shares.

For an NRI this matters. A sibling who has raised money against the family property has burdened their own share, not yours. On partition, the charge stays with them and the portion allotted to you comes to you free of it.

Why NRIs are at a disadvantage

Distance changes the position in three ways.

Possession. The co-owner living on the property or cultivating the land accumulates the revenue records — girdawari, electricity connection, municipal assessment — that establish possession. An owner abroad accumulates nothing. Over time this becomes the basis of an adverse possession claim against them.

Attendance. Proceedings require appearances, and an NRI cannot attend every hearing. This is handled through a power of attorney. Executed properly, it allows the matter to be conducted from start to finish without you travelling to India.

Information. The co-owner in India knows what is happening to the property. The one abroad learns of a sale, a mutation or a claim after the fact.

Executing a power of attorney from abroad

The power of attorney is executed before the Indian consulate or embassy in the country where you reside. Once it reaches India, it is endorsed at the office of the Deputy Commissioner where the attorney holder resides.

We draft the instrument with the specific powers the matter requires and confirm what your consulate needs before you attend, so it is not returned for a defect after you have travelled to sign it.

What we do

Establish the shares. Revenue records, registered documents, succession and the ownership chain — determining who holds what before anything is filed.

Determine the correct forum. What is recorded as agricultural, what as gair mumkin, and what falls to the civil court. Getting this wrong at the outset costs months.

Check the possession position. Girdawari, mutation and assessment entries, because a partition brought after possession entries have changed is a different case from one brought before.

Attempt the agreed route first. A registered partition deed is faster and cheaper than contested proceedings. Where agreement is achievable we pursue it.

Conduct contested proceedings where necessary. Including applications for injunction where a co-owner is attempting to sell or alter the property pending the outcome.

Act on power of attorney. No stage of a partition requires your physical presence in India.

Common questions

One sibling has sold the whole property. What now?
A co-owner can only sell their own share. Where one has purported to sell the entire property, the buyer acquires no more than that seller’s undivided share and steps into their position — becoming a co-owner alongside you, with the same constraints. Your share is unaffected, though a buyer in possession will usually have to be litigated out.

How long does a partition take?
If the co-owners agree, a registered partition deed resolves it without proceedings. Contested partitions take considerably longer, and the timeline depends on the property, the forum, and whether the shares themselves are disputed. We give you a realistic assessment at the outset rather than an optimistic one.

My brother lives in the family house. How can it be divided?
It usually cannot be divided physically. Partition then proceeds on valuation — he buys out the other shares, or the property is sold and the proceeds divided.

Can I be partitioned out against my will?
Any co-owner can seek partition, and it will be ordered where the shares are established. What you cannot be forced into is accepting less than your share.

My relative has been living on the property for years. Does that give them a claim?
Possession alone does not defeat title, but sustained possession recorded in the revenue documents can support an adverse possession claim after twelve years from the point possession turned hostile. This is why the records matter.

Do I need to come to India?
No. A power of attorney allows the entire matter to be conducted on your behalf, from filing to final decree.

Starting

Send the property details and what you know of the ownership by WhatsApp or email. If you do not have documents, the owner’s name and the village or locality is enough for us to trace the records and establish the position.

+91 94160 09800 | info@vaqeelsaab.com