Mutation of property document legal validity in sale of inherited property
Saswata Maulik
(Querist) 24 August 2014
This query is : Resolved
I am one of the eight inheritors of my mothers property who died intestate. The property is located in West Bengal. We have got the property mutation done in our individual names. We seven inheritors would like to sell our shares to a non family member after the only remaining inheritor has not taken our offer of buying our share. I would like to know whether the mutation records of an inherited property can be considered as a valid registered document showing ownership of the portion of share one holds for sale of that portion to a third party. Will appreciate very much sound advice on the same. Thanks Saswata Maulik
Devajyoti Barman
(Expert) 24 August 2014
Mutation is mere presumption of proof , it is no prof of title.
Saswata Maulik
(Querist) 24 August 2014
Dear Mr. Barman, Many thanks for your reply. Do we then need to therefore necessarily make a partition suit before we offer it for sale? If yes, then where should we file it as our property is located at Chandannagar. Thanks Saswata Maulik
Devajyoti Barman
(Expert) 24 August 2014
Partition suit takes time.
You better execute mutual partition deed among the willing co-sharers and then sell the shares.
it is more expeditious and efficacious to say the least.
If suit is to be filed which i recommend to be the very last option, the same can be filed in Chinsurah Court.
Saswata Maulik
(Querist) 24 August 2014
Dear Mr. Barman,
Many thanks for your mail. I would like to know that do we need to register the mutual partition deed which all of us i.e. the seven brothers and sisters will be willing to do as needed. Also as I am placed in Mumbai and the others are placed in India and abroad, in case we require your help, we would like to know how could we mutually facilitate it. Thanks & regards,
Saswata Maulik
Devajyoti Barman
(Expert) 24 August 2014
Yes, it needs to be registered.
The persons who are staying in abroad can send POA from their country of residence in favour of their relatives who can do the needful in india.
The partition deed shall have to be executed and registered in Kolkata, WB only and in no other place.
Raj Kumar Makkad
(Expert) 24 August 2014
I slightly differ with the advice of Barman. There is no need to get the partition prior to sale of your share. The mutation after the death of your mother is a sufficient document showing your ownership to the mentioned land hence even if one of the co-sharer is no ready to sale his share, there is no bar for you to dispose off your share as per your whims and wishes.
There is no law restricting the share without partition.
Raj Kumar Makkad
(Expert) 24 August 2014
I slightly differ with the advice of Barman. There is no need to get the partition prior to sale of your share. The mutation after the death of your mother is a sufficient document showing your ownership to the mentioned land hence even if one of the co-sharer is no ready to sale his share, there is no bar for you to dispose off your share as per your whims and wishes.
There is no law restricting the share without partition.
Saswata Maulik
(Querist) 24 August 2014
Dear Mr. Barman,
Thanks a lot for your mail. You have been indeed very clear, very direct and to the point and we highly appreciate it. I have seen your contact details in the website. We will discuss amongst ourselves and take the appropriate action. Once again many thanks and best regards from all of us. Saswata Maulik
Saswata Maulik
(Querist) 24 August 2014
Dear Mr Makkad, Thanks for your mail and for your valuable input. We will surely take your point into consideration when we decide our course of action. Thanks and regards, Saswata Maulik
ABDUL RAZIQUE
(Expert) 24 August 2014
I differ with Ld. Barman Ji on this advice " Mutation is mere presumption of proof , it is no prof of title". Can my Ld. Barman Ji say what is proof of TITLE.
Anirudh
(Expert) 24 August 2014
Dear Mr. Abdul Razique,
Only properly registered title deed is the proof of title. Nothing else. The mutation is supposed to be based on such title deed. But if some one has mere proof of mutation, but not having title deed, cannot say that he is the owner. That's why it is said that mere mutation is not proof of title.
Raj Kumar Makkad
(Expert) 24 August 2014
we cannot raise any doubt about the valid ownership of the deceased mother of the author without having any fact thereto. The simple question is whether the ancestral property can be sold by some of the legal heirs of the deceased without partition or not and my firm view is that it can be sold without obtaining the formal partition.
Rajendra K Goyal
(Expert) 25 August 2014
Agree with the expert raj kumar makkad sir.
malipeddi jaggarao
(Expert) 25 August 2014
I also join with Expert Rajendra K goyal for endorsing the views of Ld.Expert Shri Rajkumarji Makkad.
Though mutation is not a proof title, it is common in the villages, they do not possess any title deed but the property devolves on the legal heirs for generations, in which case there is no dispute about ownership and as such the legal heirs who inherit the property would acquire their right by mere mutation.
ABDUL RAZIQUE
(Expert) 25 August 2014
AS per my experience I saw that some person have registered deed of conveyance but not mutated name in the appropriate authority office or department and that person sold out the said land to some other person "B" and B go to mutation office for record self name but not able to mutate name due to non available of record in the name of first person and the registered deed stand on false. My question is here that what is the base of TITLE if registered deed is proof of title then why not recorded name in concern authority or office is proof of TITLE. Why it is called mere ownership or presumption of proof.
Anirudh
(Expert) 25 August 2014
Dear Mr. Abdul Razique,
Let me answer your query and clarify the position in the process.
1. Suppose "A" is the owner of the property having clear title deed (registered sale deed in his favour). The property is also mutated in his name.
2. Now "A" sells the property by means of a duly registered sale Deed in favour of "B". "B" has the title deed in his favour and therefore he is the owner of the property.
Assume for a while, that in case "B" does not get mutation of the property in his name (in fact many persons once they had obtained a Registered Sale Deed, completely forget / ignore to get the mutation done in their favour.).
In this situation, while the Registered Title Deed will be in the name of "B", the mutation will continue to be in the name of "A" till such time "B" gets his name mutated.
Now tell, me, whether one can say that because mutation is in the name of "A", he is the owner?
That is why, it is said that mere mutation is not proof of title.
ABDUL RAZIQUE
(Expert) 25 August 2014
OK. Anirudh Sir, I was not in argument only want to clarify the matter. Thanks my all senior experts.
Saswata Maulik
(Querist) 26 August 2014
Dear Mr.Barman, This is in continuation of my earlier query. A better understanding is desired by us on two issues as below
i) if we do a mutual partition deed amongst the seven co-sharers who are willing to sell their rights, will the eighth co-sharer be in a position to challenge the legal status of such a deed, made by the seven brothers and sisters for its applicability, stating that he was opposed to it, and also,
ii) do we need to inform him prior to our taking up the process.
Will appreciate your opinion.
Thanks and regards from all of us. Saswata Maulik
Devajyoti Barman
(Expert) 26 August 2014
1. No he can not.
2. You can but only if he is willing to to execute the partnership deed as chance is there that he may litigate the property to restrain a third party from buying your shares.
Raj Kumar Makkad
(Expert) 26 August 2014
1. He can raise objection as he is also having the share in the joint property and without his involvement, the partition proceeding cannot be completed.
ii. Yes.
Saswata Maulik
(Querist) 27 August 2014
Dear Mr. Barman,
Thanks for your valuable reply. It has largely cleared our query. However there is a point on which we are needing clarity.
The point is that if we i.e. the seven inheritors(all are brothers and sisters), invite him (the eighth brother) to partcipate in the mutual partition deed making process and he declines to join, then what legal recourse do we have for us to restrain him from going for litigation to prevent i)the sale of our shares, and ii) to complete our mutual partition deed. Will filing a caveat in the court serve the purpose.
Our objective is to make the process totally foolproof so that we do not have any issues left with us after we all seven brothers and sisters go ahead with our mutual partition deed making excercise and selling of our shares. Your considered opinion is of much value to all of us. Thanks and regards from all of us. Saswata Maulik
T. Kalaiselvan, Advocate
(Expert) 30 August 2014
@Author: As you have mentioned that subsequent to your mother's intestate death, all the individuals have mutated the property on each individual's name separately, it means it was done on the basis of a oral partition arrangement thereby individual's property was very well demarcated with boundaries. Now under this situation, draw a mutual partition on the same lines, and get the partition deed registered on individuals' name accordingly, proceed with the sale as per your proposal, if you apprehend that the unwilling member is likely to initiate legal proceedings in this regard, you may file a caveat against him to be cautious of his activities.
Saswata Maulik
(Querist) 30 August 2014
Dear Mr Kalaiselvan,
thanks for your reply.
You are right it was an oral arrangement. It is a dwelling house which is difficult to demarcate with boundaries from the point of view of physical partitioning for usage by any one of the inheritors.
On the basis of our oral agreement and our application for mutation, it is seen that as a registered document in the DLRC however the mutation document clearly says what is the land area and the house area which is accruing to each inheritors in their individual capacity. e.g. land area 200 sq.ft and house portion 160 Sq.ft which totals to 360 Sq.ft per inheritor. We think that we have got a fair perspective of the issue at hand for us from this forum. We would like to keep in touch and apprise you of the status further on as we go ahead.
We are deeply indebted to the lawyers forum of India and to all the learned lawyers for giving their most valuable opinion on an issue which is bothering us and which we would like to settle within ourselves in a true and just manner. We will surely take your considered opinion into account for our decision making. Thanks and regards from all of us. Saswata Maulik
Devajyoti Barman
(Expert) 31 August 2014
sale your shares by making a mutual partition sale deed.'lodging a caveat is also a good choice.
Saswata Maulik
(Querist) 31 August 2014
Dear Mr Barman,
Indeed, we cannot thank you more for your solid insights into our problem. We are truly grateful to your learned self, as we are to other learned lawyers. We would like to keep you posted on the progress of our issue. Wish you all the best. Thanks and regards from all of us. Saswata Maulik
