Unregistered memorundum of partition

This query is : Resolved 
 

(Querist)
19 April 2019

Sir,

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.


kavksatyanarayana (Expert)
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)..

rajesh (Querist)
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.

Sudhir Kumar (Expert)
20 April 2019

The property is not divided.

kavksatyanarayana (Expert)
20 April 2019

The partition deed shall be registered and all legal heirs including your mother and sisters have equal rights over the property of your father.

P. Venu (Expert)
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.

rajesh (Querist)
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.

Can this be applied to our issue here.

rajeev sharma (Expert)
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.

P. Venu (Expert)
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.

Thanks for correcting me.



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