Validity of clauses in a registered partition deed, bangalore
Querist :
Anonymous
(Querist) 24 October 2011
This query is : Resolved
A house wife bought land and constructed a house and this property was registered in her name. Her husband was a Govt Servant. She had not written any will and after a sudden illness she expired. The husband and the children got together and got a partition deed done in which one single house was jointly shared by the husband and son. There was a clause in the Partition deed that post the husband's death the portion of the property which belonged to husband would be transferred to the son. There was also a clause that any kind of dealings with the property should be done with the written agreement from both the parties. The husband after few months of the partition deed has made a death will that post his death the portion of the property that he owned should go to someone else. Does this death will stand valid? The partition deed clearly mentions that the property was self acquired property of the deceased woman. Please confirm if the death will is valid or if there can be any legal course of action which can be taken by the son.
Devajyoti Barman
(Expert) 24 October 2011
The partition deals with division of properties in present circumstances and not on future bequests.
Here such clause is of the nature of Will of the father and he rightly could change the same at his own will.
So legally he can make any disposition of his self acquired properties and the share on his part which fell by way of partition.
However he can not make any disposition of the shares of his children.
Querist :
Anonymous
(Querist) 24 October 2011
Thank you for your prompt response. Sir, what if the property in question is a single house jointly held by Father and Son because of which the partition deed has the clause that only with mutual consent the property can be sold/transfered to any other individual. If the death will without the knowledge of the other is going to harm the possession of the other party can't such a death will be challenged?
Devajyoti Barman
(Expert) 24 October 2011
But in your case the belonged to your mother and I answered in that aspect only.
Querist :
Anonymous
(Querist) 24 October 2011
Sorry Sir if I am sounding stupid. Yes this was self acquired property of the mother which post the partition deed has gone to the father and son. Please note this is a single house which post the partition deed has gone to the Father and the Son. And the Partition deed clearly says both Father and son agree to take written consent from each other when doing any kind of transactions with the property (since this is a single house). Does the Father still have the right to write a death will dealing with his share of the house which is 50% share of the single house?
ajay sethi
(Expert) 24 October 2011
the house was self acquired property of mother . on her death property devloved to husband and his chldren .
father can by will bequeath his share of property to anyone he deems fit
on death of father you can challenge the will on grounds that no written consent was obtained by father of the son and bequest was illegal and contray to partition deed . consult a local lawyer
Querist :
Anonymous
(Querist) 24 October 2011
Thank You Mr. Ajay Sethi and Mr. Devajyothi Barman. Extremely grateful to your replies.
prabhakar singh
(Expert) 25 October 2011
Although query is over yet I am touching it for my own reasons of understanding over the matter.
The property was self acquired of mother who died instate without leaving any will then ,if she was Hindu,under Hindu succession Act 1956,heirs left by her shall inherit her property.In the instant case her husband and a son inherited her house left.
Up to this stage no problem with views expressed.But it is being highlighted by you that father and son entered in to an agreement to share the house left by deceased owner shall be shared jointly.
You name it a "Partition deed " with a clause agreed that on death of husband [father]his share shall go in favor of son.
I WANT TO SAY THAT IT IS NOT A PARTITION DEED AT ALL AND EVEN IF IT WAS NOT ENTERED INTO,THE SAME POSITION IN LAW WOULD BE UNDERSTOOD THAT HOUSE IN QUESTION IS BEING SHARED JOINTLY 1/2 AND BY THE TWO INHERITORS.
THIS DEED THOUGH CALLED BY YOU AS PARTITION DEED HAS NOT ALLOCATED ANY SPECIFIC SHARE TO ANY OF TWO INHERITORS,THEN IT CAN NOT BE CALLED A PARTITION DEED ,CALLING IT SO IS SIMPLY A MISNOMER.
HOWEVER AS YOU FURTHER STATE THAT IN THAT SO CALLED 'PARTITION DEED'THERE IS A CLAUSE
WHEREBY HUSBAND HEIR[FATHER]AGREES WITH SON HEIR THAT AFTER HIS DEATH ,HIS SHARE SHALL DEVOLVE UPON THE SON.THEN THE CLAUSE OPENS TO OPERATE AFTER THE DEATH OF HUSBAND
[FATHER].ONCE SOME ONE HAS ABSOLUTE OWNERSHIP HE WOULD BE MASTERLY CAPABLE TO DISPOSE HIS SHARE EITHER BY GIFT SALE OR WILL AND NO AGREEMENT CAN VALIDLY CREATE ANY CLOG ON HIS TITLE.
SO BEING THE LEGAL POSITION EVEN IF SOME ONE INCLINES TO CONCLUDE THE SO CALLED "PARTITION DEED'S" CLAUSE STATED ABOVE IT CAN NOT BE ANY THING MORE THAN IN NATURE OF WILL ;AND IT IS COMMON KNOWLEDGE THAT AN OWNER CAN CREATE AS MUCH WILL AS HE DESIRES OF THEM ONLY LAST ONE SHALL BE GIVEN EFFECT TO BY COURTS.
THEN I OPINE THE HUSBAND CAN DISPOSE HIS 1/2 SHARE OF THE HOUSE DESPITE THIS SO CALLED PARTITION DEED IN ANY MANNER HE CHOOSES,SALE GIFT ,OR WILL,THE SON CAN NOT CHECK HIM EITHER IN HIS LIFE OR AFTER HIS DEATH ONLY ON THE GROUND OF THIS SO CALLED PARTITION DEED.
THE REMEDY ,IF ANY OF THE SON WOULD BE TO ASSAIL THE WILL IT SELF ON THE GROUND OF
NOT FREELY MADE OR IF THE HOUSE IS PERSONAL DWELLING,AS IT IS HERE,TO PLEAD TO HAVE RIGHT TO BUY BACK THE SHARE SO DISPOSED BY WILL TO ANY STRANGER.
Querist :
Anonymous
(Querist) 25 October 2011
Thank You Mr. Prabhakar Singh.
Will clarify with the below points.
Mother was a hindu. The Son got this partition deed done for the properties so that the children who are also legal heirs of the Mother's properties can get their share. The Father's name was included in the Partition deed since he was old and without a wife so he should be able to stay in the house peacefully along with his son till his death. The Partition deed was done to distribute the properties (land) and the house jointly in the name of the Father an Son where Father and Son both individually are 50% owners of the single house. The 50% partition was clearly mentioned in the partition deed. Since you have standard clauses like first party has been given this much and remaining parties cannot claim their share and so on there were two clauses added which all the parties in the partition deed agreed to. These are the clauses that I am talking about. I do understand that a person can write as many wills he wishes to in his life and the last one before his death is considered valid so this would over ride the clause that post the Father's death his share of the property goes to the Son. However my question is; as Mr Ajay Sethi mentioned, post the Father's death cannot the Will be challenged since both the parties had agreed to take written consent to do anything with the property? Is there any way that you can suggest wherein the Father can take benefit of the share only till he is alive and post his death it goes to the son? A will by the Father doesnt make sense as you mentioned that he, the Father can change it as and when he wishes.
Please advise.
Raj Kumar Makkad
(Expert) 25 October 2011
Father is fully entitled to effect his legal right which he has done in the present case. The matter under consideration with his son was only for partition and not ownership for ever.
prabhakar singh
(Expert) 25 October 2011
1]conversion is not a bar to inheritance.
2]on the death of mother her husband sons and daughters all became heirs.They all have right to sue father and buyer as father was entitled to sale only his share.
3]The marriage and gift given to daughters can not keep them deprived of there share in the mothers'properties or any property inherited by them.
4],5],6],&7]The agreement can be enforced only when made between all parties father son and daughters.Much depend on the very draft of the deed,without looking into the same i can not speak about inferences you are trying to draw.You may be correct and may not be correct,both things are equally true.If it is a family settlement or some thing like that??
8]&9]a suit and compromise among all heirs,
mother left stating all deals you have now disclosed,if possible amicably, may be a better way,else cancellation of his sale deed to compel him to come to terms as desired would be serving alternate,but do not choose to decide things post his death.
Querist :
Anonymous
(Querist) 25 October 2011
Thank You Mr. Prabhakar Singh. Deeply appreciate your feedback and advice.
1. Yes this was a kind of family settlement. This agreement was made between all the legal heirs of the deceased woman.
2. If you could give me your email id, I could send you a scanned copy of the Partition Deed.
3. The Son can try buying out the Father's share from the Father and registering the sale of the Father's portion in the Son's name however the Father insists on some kind of surety that he would not be asked to leave the house as long as he is alive.
4. Legally is there anything that can be done by the son to give the Father such a kind of sureity without having the property in the Father's name.. If yes what is it called?
Thanks.
prabhakar singh
(Expert) 25 October 2011
1]okay!registered or unregistered??
2]psinghadv@gmail.com
3]when does not have any share what would be bought from him and why???
4]A suit and compromise between all will end the issue for ever.
Querist :
Anonymous
(Querist) 25 October 2011
1.Yes sir.. Registered in the Sub Registrar office.
2. Thank You. Will scan the copy and send as soon as possible.
Thank You sooo much :)
