Unregistered partition deed

Querist : Anonymous (Querist) 01 October 2010 This query is : Resolved
Dear Sir,
Is unregistered partition deed of joint ancestral property valid? The deed was made among family members 24 years back and all family members have been enjoying their respective shares with harmony as per that unregistered partition deed. Now one person wants to challenge that unregistered partition deed made 24 years back, which was made when that person was a minor of 12 yrs. Can she challenge this unregistered partition deed in a court of law.

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R.Ranganathan (Expert) 01 October 2010
She cannot challenge it now because the limitation period is 3 years from the date she attained majority. Now it is more than 24 years and she was 12 years old at that time. Everyone has been enjoying their respective shares for so many years, so she will be successful challenging the partition deed unless and otherwise she proves very grave discrepancy or major fraud has been played on her and she has suffered due to that.

s.subramanian (Expert) 01 October 2010
I agree.

Rajeev kulshreshtha (Expert) 01 October 2010
Yes i agree with Mr. Rangnathan.

adv. rajeev ( rajoo ) (Expert) 01 October 2010
Now she cannot challenge it, if she challenged it amounts to time barred suit. Within 3 years after attaining the majority she had to challenge.

Kirti Kar Tripathi (Expert) 01 October 2010
Yes, the opinion of Mr. Rangnathan is correct

Radha (Expert) 01 October 2010
It also depends as to on what grounds does that person wants to challenge the partnership deed. Because as per The Partnership Act, 1932, no suit to enforce a right arising from a contract/partnership deed can be instituted in any Court by or on behalf of any persons suing as partner in a firm against the firm or any other partner in the firm unless the firm is registered.

Akhilesh Kumar (Expert) 01 October 2010
Yes she can challenge becouse the deed has no legal sanctity if it is made for the partion of the immovable property and it is not registered. Go through the TP Act and Contract Act.
But if it on stamp paper and not registered then she cant challenge and is for the movable property then it cant be.

R.Ramachandran (Expert) 01 October 2010
The legal position is as under:
1. Partition is severance of joint status.
2. Partition can take place in two methods (i) orally and (ii) through document.
3. Parties can make a private partition orally in respect of immovable property.
4. Parties can also make a partition by executing a registered deed.
5. A memorandum or acknowledgement of a partition already effected orally does not require registration, since it does not create any right in any property and its registration was not compulsory.
6. However, if by that very document the will to separate and the manner of the partition is to be deduced, then it is compulsorily registrable.
7. A deed of partition is compulsorily registrable under Sec. 17 of the Registration Act, 1908. A non-registered partition deed will not be admissible in evidence.

8. In the instant case, if she is in the direct line of decendent first stage, she can demand partition (she need not actually challenge any alleged existing partition deed. This will take care of any need to protest within 3 years of her attaining majority). If against such a demand for partition, the unregistered partition deed of 24 years old is shown as a defence, such a document will not be admissible in evidence.

Querist : Anonymous (Querist) 01 October 2010
Dear Sir
The unregistered partition deed was written on a stamp paper and was notarized and the person who wants to challenge this deed is the daughter of one of the brothers who had undergone partition. So I think she is in the direct line of descendent second stage and not first stage. So kindly clarify in the light of the above matter.

n.k.sarin (Expert) 01 October 2010
I think Mr.R.Ramachandran is right.

R.Ramachandran (Expert) 01 October 2010
Dear Anonymous,
Please clarify the following:
(1) Whether all the first stage decendants are quite happy and agreeable with the partition done 24 years ago?
(2) Was the partition done in equal measure between the co-parcenars or in an unequal manner?
(3) If it had been done in an equal manner, what is the grouse of the lady in question?
(4) Is she angling for a separate share for herself based on the 2005 amendment in the Hindu Succession Act?
(5) If answer to question (1) is in the affirmative, whether all the co-parcenars are still alive and kicking?
(6) If answer to question (5) is "YES" then, will all of them be now ready to reduce it in writing whatever was agreed to orally as a family settlement 24 years ago? (In that case there is no necesssity to depend upon the unregistered partition deed at all.) Such a document in which merely the earlier oral settlement was reduced in writing for record sake - would not require registration at all.
(Be careful, that it should be mentioned that in the oral settlement 24 years back, the ancestral property was partitioned by mutual oral agreement / family settlement and according to which such and such portion would go to ABC, and such and such portion would go to DEF etc... and it is considered expedient to reduce the said already agreed oral family settlement into writing and hence this document.)
7. If what is mentioned in point 6 is possible, then the unregistered partition deed entered into 24 years ago should be treated by all the co-parcenars as non-existent for all purposes.
8. Once such a partition is given effect to, then the lady in question can demand the partition only out of the portion that had gone to his father and cannot question the partition per se.

Querist : Anonymous (Querist) 02 October 2010
Dear Sir
1. All first stage descendants are very happy and agreeable with partition done 24 yrs ago.
2. It was done in equal measure between the coparceners.
3. Father of the lady in question died in 2004 in road accident. Mother also died in the same accident.
4. Father wrote a Will giving away properties to son and daughter(i.e. lady in question).
5.Daughter(i.e. lady in question) not satisfied with properties given to her through the WILL and wants to target the 24 year old Partition deed as a black mailing tactic to extract more property.

Kindly clarify in the light of the above matter.

R.Ramachandran (Expert) 02 October 2010
So long as the original property in question has been partitioned between the first decendants in equal measure, nothing to worry.
The share of the property in the hands of the deceased person is not his individual property and is the coparcenary property. He could not have given the same through a WILL At all.
According to hindu law, it will devolve on the surviving coparcenor. In this case the surviving coparcenar is the son of the decesead person (since he died in the year 2004 - i.e. prior to the amendment of 2005 in the Hindu Succession Act). If she simply accepts willy nilly the portion given to her by will, it will be good for her, otherwise the entire property would go to her brother only as per the hindu succession law prevailing on the day of death of her father. In any case, from the facts narrated by you, it will in no way affect the partition done 24 years ago, especially when a equal share had been given to the coparcenar (who has since died). If at all, the lady can claim a share only from that portion - for which she was not entitled in the year 2004 when the amendment to HSA had not taken place.