Suit for cancellation of partition deed

Querist : Anonymous (Querist) 09 January 2021 This query is : Resolved
Query regarding –
We are two brothers and Father (mother passed away long time back in 1995) .
Me and my brother were Joint owners (50%-50%) of a house (with 4 floors) In West delhi.We executed partition deed 2+2 floors

We had written in Partition deed we both will not interfere in each others property. Now , my father passed away 3 months back in sep 2020 . Now as per law , I have to execute my fathers will and do mutation in my name for Noida flat. Authority also asking for NOC. But my brother is challenging the unregstrd Will
Now , my query is that I want to cancel the partition deed by filing suit.
Pls give advice
Thanks experts
Aman Singh

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Guest (Expert) 09 January 2021
In any Legal Matters Everything should be in Written and Registered also. Assumptions will not be accepted Legally. Better to Sort it out amicably with your brother . That is the only Easy Option. Other wise Discuss with an Local Advocate and Proceed with the Legal Battle.

kavksatyanarayana (Expert) 09 January 2021
In the registered Partition deed, you and your brother mutually agreed that if your brother should not claim the Noida property. But his NOC is not necessary as you are the sole beneficiary as per your mother's executed Will. So for mutation, you have to apply with the copy of the Will executed by your mother. Still, the authorities ask NOC of your brother, you have to file a case for cancellation of the Partition Deed.

Advocate Bhartesh goyal (Expert) 10 January 2021
You need not to file suit for cancellation of partition deed ,get will probated.your problem will be solved.

K Rajasekharan (Expert) 11 January 2021
What the query makes out is that the Joint owners of a house registered a partition deed with a clause relating to a property which has not been the subject matter of the partition and referring to a future claim of a party in a property in which he has no claim at all, as it is governed by a Will and solely the Will that bequeaths the property on the other party. So the clause relating to the claim, it seems, has no much meaning at all in law.

A partition deed can be made only for partition of one or a set of properties but it cannot include some other agreement between the parties on anything else making it a two-in-one document, containing a partition deed on one hand and an agreement on relinquishment of some non existing claim on the other.

The Noida flat bequeathed on one party by either father or mother under a Will cannot be claimed by the other party. If so the execution of that Will does not require the concurrence or no objection of the other party owning no rights on the property.

Therefore it seems the partition deed cannot be cancelled by one party without the concurrence of the other party.

However, if the Noida flat is of the mother and the she died intestate, and the Will is made by the father who died later on her property, the other party definitely has a due share in the flat.

The query seems to have some missing links.

Querist : Anonymous (Querist) 11 January 2021
Dear Sh Rajasekaran - Sir sorry there was typo error in the last para. My mother is not in the picture. Father died 3months back where in willed noida flat only my name.

Querist : Anonymous (Querist) 11 January 2021
Dear Sh Kavksatyanarayana - sir what is the procedure i need to do for cancellation of partition deed?

kavksatyanarayana (Expert) 11 January 2021
You should file a case for the cancellation of the Partition deed.

Rajendra K Goyal (Expert) 12 January 2021
As far as cancellation of the partition deed is concerned, full document need to be referred to explore the scope. Secondly as per clause, your brother has not claimed partition of the NOIDA flat, it seems difficult that the said clause would be applicable. Legality of such clause in the partition deed would also be tested.

From the given fact it is doubtful you would be in a strong winning position if the declared suit is filed.

Rajendra K Goyal (Expert) 12 January 2021
With the given facts, it is doubtful that the registered partition deed would be cancelled. However, nothing can be predicted what time would be taken by the court to decide the case.

Stamp duty is state subject, differ fro0m state to state, may discuss with your lawyer.

Rajendra K Goyal (Expert) 12 January 2021
If the NOIDA authority does not agree for Mutation on the basis of Will, may proceed for court orders by filing case.

krishna mohan (Expert) 13 January 2021
It is noted your father has left a will in favour of you for Noida property. You can try to enforce the same. Cancellation of partition deed as per apex court judgment is impermissible if it is a registered partition deed.