Suit for partition
Guest
(Querist) 11 July 2009
This query is : Resolved
The owner of a property (residential house) died leaving 2 son 2 daughter. Both daughters are married. Before death the father made a document and registered it.
Title of the deed is DEED OF FAMILY SETTLEMENT.
It starts with,, This indenture is made…..between MR. A (the father) …referred to as SETTLOR And between Mr. B & Mr. C …….referred to as TRUSTEES.
The deed creates a trust and transfers the property to the trust. It says that the daughters shall have no right or interest in the trust property. Two sons will manage the trust property.
Second part of the deed says ‘that upon death of the SETTLOR the trust hereby created shall come to an end and the said trust property shall automatically and immediately vest upon the settlor’s two sons in equal share freed and discharged from the trust. No other heirs of the settler shall have any right or interest in the property.
The deed was signed by the father (settler) and two sons (trustees).
The fact is one of the daughter stays in the same house continuously till date even after marriage with her husband. She is having possession of 1/3 portion of the property.
Now one of the brothers filed against the other brother a Suit for partition claiming ½ share of the property. On strength of the second part of the deed. But no sisters are impleaded as defendant.
My question is what is the nature of the above deed? Is it a trust deed or a will or mixed in nature?
Whether the Second part of the deed can be treated as a will? If so can a partition suit maintainable on that?
I think if it can be treated as a will then proper course was to take a probate. Am I right?
I am for the defendant brother. The defendant brother and other 2 sisters wants the property be equally partitioned each getting equal share. ¼ th each.
Seniors please guide….
A V Vishal
(Expert) 11 July 2009
Dear Jewel
Kindly clarify the nature of the property is it a self acquired property or an ansectral property.
Amarjeet yadav
(Expert) 11 July 2009
yes the whole case is depend on the nature of the property, first tell the said property is self aquired or a ancestral property.
PALNITKAR V.V.
(Expert) 11 July 2009
If the property is self acquired property of the father, he has every right to dispose it off as he likes. hence, it is difficult for the sisters to get share. Still, depending upon the contents of the deed, the sisters can take a chance to claim that the deed can not be called as will or gift or any other kind of legal transfer in favour of the brothers alone and thus, claim their share.
SHYAMSUNDAR
(Expert) 11 July 2009
You need to specify if it is self acquired or ancestral.
Guest
(Querist) 11 July 2009
Seniors it is self acquired...
what is the nature of the particular deed?
if it can be treated as will...then can partition be sought directly without taking probet??
If it is not a will then how the property can be devided excluding the sisters?
thanks in advance
A V Vishal
(Expert) 12 July 2009
Dear Jewel
It is a settlement deed, further the property is self acquired and the settlor has left the property to his sons. The second part is the will of the settlor viz how the property will devolve upon the heirs on the death of the settlor.
Guest
(Querist) 12 July 2009
If the second part is will..why the probate is not necessary? I think execution of Will also to be proved U/s 63 of Indian Succession Act?
whether probate and proof of execution is necessary in this case?
A V Vishal
(Expert) 12 July 2009
Dear Jewel
By will I meant as the wish of the settlor, hence probate is not required since the document is already registered as a settlement deed.
Guest
(Querist) 12 July 2009
Ok thanks
Guest
(Querist) 13 July 2009
Any other experts opinion?
Jayashree Hariharan
(Expert) 13 July 2009
You don't have to think about any facts of the case. The very fact that it is self-acquired property of the father, entitles the father to do as he wishes. I don't think the daughters stand any chance, in this case, unless the defendant brother wishes to accommodate his sisters, by his own free will.
Guest
(Querist) 17 July 2009
seniros did not mentioned about section 63 of Indian Succession Act?
If in this case it is not applicable, tell me why?
if the very nature of the document is testamentory then it should pass through sec. 63 of Indian Succession Act.
