Canceling a partition deed
Querist :
Anonymous
(Querist) 07 August 2017
This query is : Resolved
Hi,
My grand father was missing from 1970s. My father was the only child to my grandfather. In 2004, my father and my grandmother did a partition deed without getting a civil death declaration of my grand father. They even didn't approach court to do this partition. They simply did the partition in 2004 stating in the document that they are the legal heirs of my grand father and as he was dead, they are doing this partition. Is this partition deed legal? can this partition be nullified? Do we have some judgement similar to this one, nullifying these kind of partitions?
Querist :
Anonymous
(Querist) 07 August 2017
The state is kerala
Querist :
Anonymous
(Querist) 07 August 2017
The state is kerala
Rajendra K Goyal
(Expert) 07 August 2017
No reply to query from an author who is anonymous.
You can post the query in fresh thread with your identity and material facts.
Ms.Usha Kapoor
(Expert) 08 August 2017
Without civil death declaration of your grand father by the court such partition is null and void.The national commission observed that the law about presumption of death is governed by sections 107 and 108 of the Evidence Act, which has been interpreted by the Supreme Court, in LIC v/s Anuradha [(2004) 10 SCC 131]. The law provides that if a missing person remains unheard of for seven years, a presumption that he is dead can be raised in appropriate proceedings before a court. There cannot be any evidence about the actual date, time and place of his death
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Ms.Usha Kapoor
(Expert) 08 August 2017
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Querist :
Anonymous
(Querist) 08 August 2017
Usha - Thank you for your answer. So you are saying the partition is null and void. So should I approach court to cancel this partition done by my father and grand mother? Both are not alive now. And one more problem is that my father had sold some of the land after this partition. How they will be impacted?
Querist :
Anonymous
(Querist) 08 August 2017
Also when I read LIC v/s Anuradha [(2004) 10 SCC 131], I could see the statement
"The person was not heard of for a period of seven years by the wife and/or family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings."
Does this mean that the partition done by my father and grandmother is valid(since it is more than 7 years), even though they haven't approached court for partition deed or haven't got civil death declaration from the court?
Ms.Usha Kapoor
(Expert) 08 August 2017
Anyway your grand mother and father are no more now. So the said partition is valid or invalid is immaterial now.
Querist :
Anonymous
(Querist) 08 August 2017
Actually i need to cancel the partition done by my father and grand mother. Is it possible for me to file a suit in court to cancel the existing partition since it is not done according to procedures and partition the properties between my mother and my siblings
P. Venu
(Expert) 08 August 2017
Why you want the partition to be cancelled?
Querist :
Anonymous
(Querist) 08 August 2017
The partition deed is registered. I want to challenge because my father had bought some money from a money lender. The lender asked for sale deed to give the money(though actual verbal agreement was to give the property back when we give back the money). Now my father had died and the money lender says he won't give the property back even though we are ready to give him the money back. He says he needs the property. Since this was registered as a sale deed(though actual verbal agreement was to give the property back when we give back the money) he went to village office and started paying the land tax and got the possession certificate. I want to challenge this deal but it is registered as sale deed simply going court won't work that's what lawyer said. So checking the feasibility of nullifying the partition deed itself so that the sale deed also become void
Kumar Doab
(Expert) 12 August 2017
AQ, so NO reply...................
Kumar Doab
(Expert) 12 August 2017
Same Query:
http://www.lawyersclubindia.com/experts/Validity-of-a-partition-deed-without-civil-death-declaration-650496.asp
P. Venu
(Expert) 13 August 2017
You are making a long-winding story. Put in simple words, you wish to get back the property which your father had sold through a registered deed, on the premise that the buyer had then promised to return back, once the consideration in the sale was paid back. For this purpose, you are exploring the possibility of getting the partition deed, which, in your view, may not be valid as the partition deed was executed without obtaining the declaration of death of the grandfather who had gone missing. Is it true?
Querist :
Anonymous
(Querist) 15 August 2017
P Venu - exactly that is my intention. Is that doable?
Guest
(Expert) 15 August 2017
You may better take help from some local lawyer and show the property related documents to him for guidance and filing a case, if necessary.
P. Venu
(Expert) 15 August 2017
In my considered opinion it is not doable. What cannot be done directly, cannot be done indirectly, too.
