Partation deed
R Balaji
(Querist) 20 March 2013
This query is : Resolved
Dear
Sir/Madem
I need to know whether partition deed can make only in family or third person also who can divide the share in the property if we make partition deed if we dint register is it value
ajay sethi
(Expert) 20 March 2013
registration is necessary
Raj Kumar Makkad
(Expert) 21 March 2013
Family partition do not provide scope to include third party therein except to bring the family to an amicable settlement and he can also become a witness also but not a party to the deed.
prabhakar singh
(Expert) 21 March 2013
The question of any partition arises only when any thing is jointly or co-owned or is in coparcenary of a Hindu Mitakshra family.
Any stranger can not join a partition for he does not have any kind of right title or interest in the property.
If a partition takes place through a partition deed it requires registration after paying proper stamp duty as per law of state where property is.
An oral partition is also lawful and once it has been acted upon by the parties a memorandum of such acted oral partition in writing can be made which would not require payment of any stamp duty or registration.
Raj Kumar Makkad
(Expert) 21 March 2013
A family arrangement requires to be duly stamped and registered - This depends on the manner in which the document is made. Generally, if it is a memorandum recording a past transaction or is a record or a chit or a list merely reducing the earlier oral family arrangement, then there may not be any necessity for payment of stamp duty and registration charges as this is not a document of title. Otherwise, if it is intended to be a document of title containing declarations of rights of parties, then it has to be properly stamped and registered. This is the most difficult and controversial part of family arrangements.
A particular document relating to a family arrangement requires to be stamped and registered – It depends on various facts and circumstances and the document itself. One has to look into the manner in which it is made; the phraseology and wordings employed; the setting out of rights and terms and conditions; reference to pre-existing rights of the members; reference to the parties being members of Joint Hindu Family; timing of the document, besides other matters which may be relevant on a case to case basis.
Depending on the wordings employed, facts and circumstances and other factors, it may or may not required to be stamped and registered. Each document has to be scrutinised on the basis of the wordings contained in the document to arrive at a conclusion whether the same requires to be stamped and registered or otherwise.
At times, it may only be stamped, but not registered in which case it can be looked into for collateral purposes. If it is required to be stamped and registered, but is not properly stamped and registered, it cannot be looked into for any purpose. Whether a purpose is collateral or not, is a matter which has to be gathered from the facts and circumstances concerned.
Family arrangement as such can be arrived orally or may be recorded in writing as memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it would amount to a document of title declaring for future what rights in what properties the parties possess.
Another aspect that attracts our attention is whether family arrangement, if recorded in a document, requires registration as per the provisions of section 17(1)(b) of the Indian Registration Act, 1908. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to create declare, assign, limit or extinguish either in present or in future any right, title or interest in immovable property. Thus if an instrument of family arrangement is recorded in writing and operates or purports to create or extinguish rights, it has to be compulsorily registered. But where a document, merely records the terms and recital of the family arrangement after the family arrangement had already been made which per se does not create or extinguish any right in immovable properties, such document does not fall within the ambit of section 17(1)(b) of the Act and so it does not require registration.
According to the Supreme Court in Roshan Singh v. Zile Singh AIR 1988 SC 881, the true principle that emerges can be stated thus ‘If the arrangement, of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, then, there is no question of one deriving title from the other and therefore, the arrangement does not fall within the mischief of section 17 (1) (b) it read with section 49 of the Registration Act as no interest in property is created or declared by the document for the first time.
Family Arrangement does not amount to transfer - The transaction of a family settlement entered into by the parties bonafide for the purpose of putting an end to the dispute among family members, does not amount to a transfer. It is not also the creation of an interest. For, as pointed out by the Privy Council in Hiran Bibi’s case AIR 1914 PC 44, in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other party. It is not necessary, as would appear from the decision in Rangaswami Gounden v. Nachiappa Gounden AIR 1918 PC 196, that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a resemblance of a claim on some other ground as say, affection.
It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of section 17 of the Registration Act and is, therefore not compulsorily registrable –Kale v. Dy. Director AIR 1976 SC 807.
The family arrangement will need registration only if it creates any interest in immoveable property in present in favour of the party mentioned therein. In case however no such interest is created, the document will be valid despite its non-registration and will not be hit by section 17 of the Indian Registration Act, 1908. Maturi Pullaih v. Maturi Narasimhan AIR 1966 SC 1836.
Even a family arrangement, which was registrable but not registered, can be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties .In pursuance of the family settlement. Kale v. Director of Consolidation AIR 1976 SC 807, (1976) 3 SCC 119.
