Partition deed without involving one legal heir (son)
Bijumon
(Querist) 12 May 2013
This query is : Resolved
Dear Sirs,
I would like obtain your valuable legal guidance/opinion on the following matter, please.
Subject :(1) Partition deed made by members in the family without involving Son
(2) Further transfer of the property to a third-party through a registered gift deed.
Family : Christian
State : Kerala, India
My father died in the year 1996 leaving his wife 3 children (1 son and 2 dauthers). I am the only son in our family. My father left around 55 cent dry land with a house + a paddy field around 55 cents. My father acquired this property from his mother. That means the property in question now is an ancestral property. My father DID NOT MAKE ANY WILL for this particular property. As I said above, I am the only Son in the family and made all the arrangements for the marriage of sisters after the death of father WITHOUT disposing any family property or assets.
In the year March 2003, (10 year before) my younger sister made a partition deed of the property without involving me (as I was living out of kerala) and presently living overseas. She convinced my mother and managed to obtain my mother’s signature on the concerned papers. As per the partition deed, neither my mother nor myself has not right to the family house.
For getting a no objection from my elder sister, my younger sister paid a lump sum amount to elder sister and released her legal rights on the property.
This way younger sister managed to register the partition deed in SubRegistrar office (presenting the fact that the brother is not available in kerala at that time to take part in the partition). Later, my younger sister gifted this property to her husband and they got this deed also registered.
Several times, I have requested my sisters+mother for making a partition deed, which is legally valid and especially my second sister refused to resolve this issue.
Now they (my younger sister and her husband) are ready for a amicable settlement (as they are not able to pay land tax in their name) – the matter is pending at Village Office as “village office says – no further action on the partition can be taken from their end as one of the legal heir was not involved (that is me) in the transactions. As per village office records, the entire property is still in the name of my deceased father.
I WOULD LIKE TO KNOW THE PROCEDURE FOR RESOLVING THIS ISSUE :-
(a) Can they CANCELL registered partition deed + gift deed by themselves by admitting the mistake. (they are requesting me not to initiate any legal proceedings against them)
OR
(b) If the above is not possible, could you please advise me the further steps to be followed on this matter.
Kindly help.
Thanking you,
With Regards,
Biju
prabhakar singh
(Expert) 12 May 2013
"That means the property in question now is an ancestral property" is a labor of mistake of law on two scores:1.There is concept of ancestral property only among Hindus and 2.Even among Hindus property inherited from mother would not be considered to be ancestral in the sense of concept of co parcenary recognized by Mitakshrarins Hindus.
The property on death of your father has devolved upon his widow 1/3rd share,and rest 2/3 in equal to 2 daughters and 1 son as per provisions contained in section 33 and 37 of the Indian succession Act 1925.
All act of partition between sisters and mothers and that of gift between sister and her husband is unlawful and not binding upon the son(you).
Amicable Solution to your Problem:
1.husband donee and donor sister should register a cancellation deed of gift.
2.mother and sisters should register a cancellation of partition deed made earlier
and in the same deed a fresh partition should be arrived at between(among)all 4 of you,mother,and two sisters.
R.K Nanda
(Expert) 12 May 2013
consult local lawyer.
Bijumon
(Querist) 12 May 2013
Respected Sir,
Thank you very much for providing quick reply/guidance.
Advocate Ravinder
(Expert) 13 May 2013
I completely agree with Prabhaker singh sir, he answered elaborately, follow him. If they come to compromise it is ok. If they do not compromise then you have to do the following.
File a partition suit and in the suit you have to immediately take an temporary injunction of not to alienate the property to third persons, you have to file two petitions for cancellation of partition deed and gift deed
Bijumon
(Querist) 16 May 2013
Dear Experts,
Once again thanks for providing valuable guidance.
Further, may I request your opinion on the following subject. :-
1. My mother & sisters are ready for cancellation of the partition by way of Registering a Cancellation Deed.
2. My younger sister's husband (my bro.in-law) is not willing to cancell the Gift Deed, which he got from sister. He is saying, his gift is a valid gift and, therefore, he will not do any cancellation.
My Query :-
(a) Is it legal under the relevant law to cancell the partition deed made by my mother and sisters (reason they have not included me in the said partition deed)?
OR
(b) Before cancelling the partition Deed, will the Gift Deed to be cancelled first?
(c) The person who got the gift (my brother-in-law) from my sister on the basis of the above-mentioned partition Deed is saying - his gift is valid. - Is there any legal validity on that gift.
Thanking you all in anticipation.
With Best Regards,
Biju
Bijumon
(Querist) 22 May 2013
Dear Experts,
May I request to please answer my last query.
Thanking you,
With best Regards
Biju
Raj Kumar Makkad
(Expert) 22 May 2013
You are required to challenge the gift deed & subsequently executed and registered partition deed as the same is invalid. Once gift is cancelled, you shall get the desired relief.
