Family partition settlement of land under court decree
varma
(Querist) 08 October 2011
This query is : Resolved
me & my brother got each of 55 cents non agriculture land as our shares after my father death who has only right to enjoy that 110 cents of land till his death ,after his death me & my brother become owners of that land that was said & writtened a WILL by my grand mother in year 1983 & registerd in sub register office & my father died on 2006.Now in year 2011 we both planned to register our shared property by way of Gift partition deed i.e 3.5 % for stamp duty & registering fees which becomes very costly and not affordable(nearly 1.5 lakhs each). At this situation I have heard from some persons that it can also be get done through court decree which is very cheaper in comparison to GIFT DEED which donot require stamp duty.
For that he said that make Memarundum of Oral Partition deed in 100 rs stamp paper about our shares of 55 cents of land each with clear boundaries b/w us and also 4 side boundaries written in that and attest with 2 witness signature. After that plan any one to suit on other by praying that other is disturbing my title and trying to occupy my share hence give permanent injuction to him not to come my share according that court will decree on favour on conditions writeen by both of us in oral partition deed.More over since it is oral memorundum of partition it doesnot require any stamp duty and we are praying in court for only permanent injection of other not to interfere ones shared property as per oral partition deed ,the court fee also very nominal in this case.
1)Whether itwill help or not
2)Please give in details for what is the nominal district court fees in this case if land is located in andhra pradesh for permanent injection of other from ones shared property and also tell on what basis court will calculate the fees for us & how much
3)can court decree in favour of ones shared property as per oral partition deed will automatically reflects what is the partition share of share of other also so that we can both use as proof for our shared property of oral partition deed.
3)Plz tell procedure to get proof i.e court decree for both of us as per we written in oral partition deed
4)Will this helps us to become absolute owners of us shared property
prabhakar singh
(Expert) 08 October 2011
A number of time a query like one of yours have come and i have always advised so.If you will
browse for past queries you will get it.
what i am insisting that state complete facts
not advises received or an opinions formed going through several advises.Doing so your query has become so lengthy that experts have by passed it only because in the same time they can go through and answer five queries.
Any way whatever you have heard are read is correct but its Form in your mind is in rough way.
LOOK IT IN A CLEAN WAY::
1]your property is joint with your brother.
2]NOW YOU BOTH wants its partition.
3]you need to check the legal ways of partition.
4]you find two ways;[a]partition by a partition deed;[b] oral partition both ways are recognized in law.
5]now you compare the two routes of partition allowed by law to weigh the benefits of one against the other.
6]By a comparison you find that while option [b]is cost free option [a]is too costly to afford as each party has to cough out stamp duty according to market valuation or rate fixed by collector in the circle,whichever greater.
7]the cost analysis leads you to decide that there is no sense to pay so much duty
merely for partition just for one benefit that it would be a better peace of evidence.
8]hence you choose the way of oral partition 'decide which side will go to which party and accordingly after giving a thought to equity and easement in future you arrive at a final decision and allot one part to one party and the other part to other party and accordingly implement this oral decision on the spot in such a manner,to say raising a partition wall between two shares, that a severance between two shares can be seen by any naked eye.So now the oral partition has been acted upon.
9]a few month passes and you both realize that there should be some evidence in writing so that in case of any confusion as to terms of partition orally agreed and acted upon between you two may not emerge as dispute either between you or between those claiming under you or any of you.
10]your this probe provides you a solution
that if you to record the terms of oral partition which has been already acted up on the spot can be legally reduced to in writing as a MEMORANDUM for future reference of parties without paying any stamp duty or getting the same registered.
11]you accordingly reduced the terms of ORAL partition ALREADY ACTED UPON THE SPOT in writing on a paper or say on a stamp paper of a token value.
12]A CAUTION IS REQUIRED WHILE THIS MEMORANDUM IS DRAFTED THAT GOING THROUGH WHOLE OF THIS DOCUMENT IT SHOULD NOT APPEAR FROM ANY CORNER OF THE DOCUMENT THAT IT IS THIS DOCUMENT BY WHICH THE PARTITION HAS TAKEN PLACE rather it should speak that partition terms were orally agreed and were accordingly implemented and acted upon by parties on the spot and there after it was thought proper to reduce those already acted upon oral terms into the writing to avoid any future confusion regarding the terms of oral partition so acted between parties.
12]Now few more time passes and a dispute emerges and part allotted to one party goes up in value for some reason and the second party starts claiming that very portion as its own,now a dispute has emerged,the remedy opened to other party to protect possession of his portion of share is to file an injunction suit on the basis of pleading oral partition and having been acted upon the spot supported by later execution of its memorandum.
13]Only injunction suit is advised for it is granted only when a court arrives at a finding that party/plaintiff claiming the injunction is the exclusive owner of the suit property and is also in exclusive possession thereof;so being the case no relief of declaration is required in my view which will attract unnecessary court fees.
14]the court fess is also like stamp duty is the subject matter of state law.In UP it is valued at market rate for Abadi property
and ten times of rent assessed by government for agricultural lands .
So in UP one arrives at a market value say Rs.1000/=then court fees would be payable on 1/5 of the value being Rs.200/=and table given for will Rs.22.50 the net amount.Now suppose the value is Rs.100,000/=,then its 1/5 would be Rs.20,000/=on which as per table given court fees shall come out to be Rs.1907.50
but only Rs.500/=would be payable as this is the maximum court fees prescribed for a suit of injunction irrespective of any valuation.
As the plaintiff has filed the suit decree shall be passed in his favor but defendant can also seek relief by a counterclaim filed in the same very suit and decree would be passed in his favor too.In case a compromise is entered into submitting to the jurisdiction of LokAdalat would be best way to have the desired decree.
i suppose you now understand how to proceed to give your matter a logical end.
