Validity of a partition deed without civil death declaration
Akhilkumar S
(Querist) 08 August 2017
This query is : Resolved
Hi, My grand father was missing from 1970s. My father was the only child to my grandfather. In 2004, my father and my grandmother did a partition deed without getting a civil death declaration of my grand father or without approaching court to do this partition. They simply did the partition in 2004 stating in the partition deed stating that they are the legal heirs of my grand father and as he was dead, they are doing this partition. Is this partition deed legal?
Both my grand mother and my father had died. Can I question this partition deed and nullify the partition deed?
Rajendra K Goyal
(Expert) 08 August 2017
Whether the partition deed is registered?
Why you want to challenge.
Some important information seem to be missing.
Show all documents to local lawyer and discuss.
Akhilkumar S
(Querist) 08 August 2017
The partition deed is registered. I want to challenge because my father had given bought some money from a money lender. The lender asked for sale deed to give the money. Now my father had died but the money lender says he won't give the property back even though we are ready to give him the money back. He says he need the property. Since this was registered as a sale deed(though actual verbal agreement was to give the property back when we give back the money) he went to village office and started paying the land tax and got the possession certificate. I want to challenge this deal but it is registered as sale deed simply going court won't work that's what lawyer said. So checking the feasibility of nullifying the partition deed itself so that the sale deed also become void.
Kumar Doab
(Expert) 09 August 2017
The property was owned by whom?
Grandfather? or it was joint/HUF/Ancestral?
Which personal law applies in this case say; Hindu?
Akhilkumar S
(Querist) 10 August 2017
The property was owned by grand father. Hindu personal law. After my grand father was missing more than 7 yrs my father did the partition with my grand mother in 2004 simply stating my grand father is died. Shouldn't he have filed a partition suit or civil death declaration before doing this partition? Can this be nullified? Any judgement/case before court similar to this one?
Kumar Doab
(Expert) 10 August 2017
You may go thru:
Central Government Act
Section 17 in The Registration Act, 1908
17. Documents of which registration is compulsory.—(l) The following documents shall be
registered, if the property to which they relate is situate in a district in which, and if they have
been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act,
1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came
or comes into force, namely:—
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit
or extinguish, whether in present or in future, any right, title or interest, whether vested or
contingent, of the value of one hundred rupees and upwards, to or in immovable property;
https://indiankanoon.org/doc/561156/
Kumar Doab
(Expert) 10 August 2017
You may also go thru:
Central Government Act
Section 35 in The Indian Stamp Act, 1899
35. Instruments not duly stamped inadmissible in evidence, etc
https://indiankanoon.org/doc/176042882/
Central Government Act
Section 49 in The Registration Act, 1908
49. Effect of non-registration of documents required to be registered.—
https://indiankanoon.org/doc/1768154/
Kumar Doab
(Expert) 10 August 2017
Supreme Court of India
Roshan Singh & Ors vs Zile Singh & Ors
https://indiankanoon.org/doc/1946998/
‘In the present case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration. But if the writing itself effects a division, it must be registered. ‘
Kumar Doab
(Expert) 10 August 2017
Declaration of Civil death is by court of law.
Kumar Doab
(Expert) 10 August 2017
Succession opens on date of death/upon death.
Kumar Doab
(Expert) 10 August 2017
Atleast I am unable to instantly recall if state of of Kerala has some particular provisions that approves transactions posted by you.
Further citation per finer nuances of the matter shall be chosen by your own local counsel of unshakable repute and integrity specializing in such/civil matters.
Kumar Doab
(Expert) 10 August 2017
Another perspective:
If in any case declaration of civil death, succession is decided then your father gets his share.......
The lender may still stake claim based on docs/evidence on record..............
NO comments on Verbal commitements, posted by you.
P. Venu
(Expert) 13 August 2017
You are making a long-winding story. Put in simple words, you wish to get back the property which your father had sold through a registered deed, on the premise that the buyer had then promised to return back, once the consideration in the sale was paid back. For this purpose, you are exploring the possibility of getting the partition deed, which, in your view, may not be valid as the partition deed was executed without obtaining the declaration of death of the grandfather who had gone missing. Is it true?
Kumar Doab
(Expert) 13 August 2017
The declaration of civil death id by court of law.
The succession opens on date of death. ( No one knows that person-owner-borrower-is alive of dead and has not been declared dead by court having jurisdiction)
The assurance to return the property is verbal....
The lender might be having proper record irrefutable record of lending and Non Payment................
The legal heirs seems to be in knowledge of borrowing and non payment and sale deed..............
The issue is contentious...............
Does state of Kerala have any provisions and scope as sought by you!
Akhilkumar S
(Querist) 15 August 2017
Venu sir- what you said is correct. The lender cheated us and I want get the property back. Exploring all the possibility. Could you please guide me here?
Kumar Doab
(Expert) 16 August 2017
Your query is responded in other thread also...
P. Venu
(Expert) 17 August 2017
Everything depends on evidence of the alleged cheating. Yes, you can file a civil suit. However, chance of getting a favourable decree is rather remote. Perhaps, there could be some partial success if the matter is referred for settlement either through mediation or Adalat.
krishna mohan
(Expert) 17 August 2017
Well advised by legal expert Mr.Venu. You can check whether it is Agreement for Sale which any lender normally get it as a collateral. If it is a Sale Deed, chances will be bleak as the your father being the owner of the property would have sold for a consideration perhaps the money lent. You can get copy of the document cited by them for legal scrutiny by your legal counsel for right advise as exchange of views or opinion based on claims made and not based on perusal of documents.
Kumar Doab
(Expert) 17 August 2017
In the query you have mentioned sale deed and partition deed.
Atleast the sale deed means deed registered with registering authority.
There is NO death certificate/declaration of death on record.
The money lender's seems to be having record to claim charge, in any case.
Kumar Doab
(Expert) 17 August 2017
Assuming that successions sets in (post death certificate/declaration of death) father could dispose his share (+ share from his mother's share)..............
Try with more force and offer to pay principle+interest....
Ms.Usha Kapoor
(Expert) 12 July 2018
I agree with Venu and Kumar Doab.
