An oral partition has been carried out between father and his two sons in August 1982 and the same is made as memorandum of partition in November 1982. In that document it is mentioned that partition is carried out orally earlier. That memorandum of partition is unregistered.
Is that Valid?
In Memorandum of partition Entire Property is divided into 3 parts and was taken by all 3 parties.
Father died in 2010.
Now the father here has 3 daughters but nothing was mentioned in the memorandum of partition made in 1982.
Now one of the son want to sell his one of the property ( plot), which comes into his share through this unregistered memorandum of partition.
What are the complications here and who all should sign the sale registration document
Property is a vacant land and the son has not mutated in municipal records.
His brother has got the adjacent plot and he builded a house in 2000 and he got mutated.
19 April 2019
Dear queriest, where the place that property situates? Memorandum of Partition shall be registered. Now all the legal heirs divide the property in equal shares. Consult your elders and well wishers of your family come to an amicable settlement. And by mutual understanding.among the legal heirs it can be in un-equal shares (Your brother got mutation for a piece of property, that property give him)..
20 April 2019
Sir, Thanks for the reply. This property is a vacant land in Andhra Pradesh, Tekkali. But Refering to Kale & Others vs Deputy Director Of Consolidation ... on 21 January, 1976 " Memorandum of partition acknowledging earlier oral partition does not require stamp duty and registration "
Can this applies to this issue.
Secondly it this applies property is divided through this unregistered memorandum of partition to father and his two sons only with any share to daughters.
22 April 2019
'Memorandum of Partition' has no existence in law if the property was self acquired by the father. As such, the legal position appears to be that that the father had died intestate and thus presently vested with all the siblings and, (if alive), the mother.
22 April 2019
Sir, Thanks for the reply. Father here has acquired the property through will. He has 2 sons and 3 daughters. In 1982, Father and two sons have made oral partition and after 3 months that have made Memorandum of Partition acknowledging the earlier oral partition. Nothing has been mentioned about daughters in 1982. This Memorandum of partition is unregistered and has been signed by Father and 2 sons.
Father died in 2010.
Now that I am intrested to buy a Land that comes to one of the sons share. Who all should come for registration from their end.
Also we are referring to Kale & Others vs Deputy Director Of Consolidation ... on 21 January, 1976 Supreme Court judgement on unregistered partition deed acknowledging earlier oral partition.
07 May 2019
From the particulars given by you it appears you propose to buy a piece of land which came into ownership of seller through unregistered oral partition. An oral partition of th property if acted upon is a valid partition of property. Partition deed require registration when the deed itself is dividing the property. When a memo of the division of property which had already taken place is drawn no registration is required. It is well recognised by court of law. But you are a buyer and the poignant question of law is whether the part you are purchasing actually in the share of seller or some other co sharer has any claim on that. If you are otherwise satisfied go ahead and purchase the property. If you have iota of doubt ask the seller to get a deed of disclaimer registered from all other co sharers regarding the piece of land you are purchasing. This deed of disclaimer may be got registered at very minimal registratio cost.
07 May 2019
Supreme Court, in a recent decision (Sita Ram Bhama v. Ramvatar Bhama) has expounded law and principles on the subject matter. The relevant portions are reproduced below"
"Pertaining to family settlement, a memorandum of family settlement and its necessity of registration, the law has been settled by this Court. It is sufficient to refer to the judgment of this Court in Kale and others vs. Deputy Director of Consolidation and others, (1976) 3 SCC 119. The propositions with regard to family settlement, its registration were laid down by this Court in paragraphs 10 and 11:
“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangement may be even oral in which case no registration is necessary; (4) 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 the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement. 11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently.” 12. We are, thus, in full agreement with the view taken by the trial court as well as the High Court that the document dated 09.09.1994 was compulsorily registrable. The document also being not stamped could not have been accepted in evidence and order of trial court allowing the application under Order XII Rule 3 CPC and the reasons given by the trial court in allowing the application of the defendant holding the document as inadmissible cannot be faulted. 13. There is only one aspect of the matter which needs consideration, i.e., whether the document dated 09.09.1994 which was inadmissible in evidence could have been used for any collateral purpose. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. Further, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. A twoJudge Bench judgment of this Court in Yellapu Uma Maheswari and another vs. Buddha Jagadheeswararao and others, (2015) 16 SCC 787, is appropriate. In the above case also admissibility of documents Ext. B21 dated 05.06.1975 a deed of memorandum and Ext. B22 dated 04.06.1975 being an agreement between one late Mahalakshamma, respondent No.1plaintiff and appellant No.1defendant came for consideration. Objection was taken regarding admissibility which was upheld both by the High Court and trial court. Matter was taken up by this Court. In the above case, this Court held that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents. This Court after considering both the documents, B21 and B22 held that they require registration. In paragraph 15 following was held: “15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B21 and B22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B21 and B22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.” 14. After holding the said documents as inadmissible, this Court further proceeded to consider the question as to whether the documents B21 and B22 can be used for any collateral purpose. In the above context the Court accepted the submission of the appellant that the documents can be looked into for collateral purpose provided appellantdefendant to pay the stamp duty together with penalty and get the document impounded. In paragraphs 16 and 17 following has been laid down: “16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy(AIR 1969 AP 242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellantdefendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B21 and B22 for collateral purpose subject to proof and relevance. 17. Accordingly, the civil appeal is partly allowed holding that Exts. B21 and B22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy.” 15. Following the law laid down by this Court in the above case, we are of the opinion that document dated 09.09.1994 may be admissible in evidence for collateral purpose provided the appellant get the document impounded and to pay the stamp duty together with penalty as has been directed in the above case. 16. In the result, this appeal is partly allowed in the following manner:
The order of the trial court as well as the High Court holding that the document dated 09.09.1994 required compulsory registration is upheld. Following the aforesaid view of this Court in Yellapu Uma Maheswari (supra), this appeal is partly allowed holding that deed dated 09.09.1994 is admissible in evidence for collateral purpose subject to payment of stamp duty and penalty. "
In view of the ratio laid down by the decision, I need to correct my earlier suggestion and agree with learned expert Shri Rajeev Sharma.