Notarised stamp validity used for family partition
Querist :
Anonymous
(Querist) 12 August 2011
This query is : Resolved
Hello Experts,
We have 49 guntha (aar) land. This was on name of my grandmother. On oral partiotion it was given to my father after death of my grandmother in 1984. In 1990, my uncle claimed on this land and in 1992, district court given the order to give 1/3rd part to my uncle.
Now my uncle and father holds that land as 1/3rd and 2/3rd.
We wanted to make the legal partion of this division, but as per "The Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947", we can not make partition of 16.33 aar (1/3rd of my uncle).
As a security, in 2008, we written the holdings on stamp paper, specifying the partition in detail. Court has only made the partition as 1/3rd and 2/3rd, but not specified the 4 surroundings(boundries or Chatur-sima) of individual. On stamp paper made in 2008 we had mentioned boundries of individuals and also mentioned the partiotion as 32:16 aar and 1 aar for common road.
This stamp is notarised by notary in 2008. But we did not registered this document.
Is this document valid to claim my father's right about 32 aars(specifying boundries)?
I am in confusion about oral partition and Registration act 1908 and its section 17.
Thanks.
Raj Kumar Makkad
(Expert) 12 August 2011
This shall be callled an oral arrangement but not a valid partition. Until and unless formal partition by revenue authorities is not made, such arrangement has no value in the eyes of law.
Querist :
Anonymous
(Querist) 12 August 2011
Thank you Rajkumarji for quick reply.
Revenue officer is rejecting our application with reason of "The Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947".
Is there any legal alternative to preserve our rights on 32 aars?
Adv Amit Kulkarni
(Expert) 12 August 2011
there is no validity for non judicial stamp
Querist :
Anonymous
(Querist) 12 August 2011
Thank you Amit Sir.
Experts,
Can you please comment on, legal alternative to preserve our rights on 32 aars?
DEFENSE ADVOCATE.-firmaction@g
(Expert) 12 August 2011
Unless registered no value of the partition agreement. Yes under the avoidance of fragmentation law in Maharashtra your partition will not be legal , so the best way is one party sale to other and till that time joint holding.
Querist :
Anonymous
(Querist) 12 August 2011
Hello Experts,
I got very nice information regarding this case on following document.
http://revenueharyana.gov.in/html/acts_rules/indian%20stamp%20Act1899.pdf
Partition between two real brothers. - A document drawn to this effect - Document showed that by document it self a partition was effected - It cannot be said to be a mere memorandum of family arrangement which has already been effected and has been recorded for the purpose of rememberance or for record - Not admissible in evidence without registration. AIR 1988 SC 881 relied. Bankey Bihari v. Surya Narain alias Munnoo, 1999(3) RCR(Civil) 469(Allahabad) Family partition _ Registration of.- Family arrangement requires registration if it is reduced into a written document for use in future - However a memorandum of record of past family settlement prepared for the information of the court or for entry of mutation which do not create any title, do not require registration. A.C. Lakshmipathy v. A.M Chakrapani Reddiar, 2001(2) RCR(Civil) 24(Madras}(DB) Unregistered document but properly stamped.- Document could be used for collateral purpose but if it is not properly stamped, it cannot be used even for collateral purposes. Reg-
34 Indian Stamp Act, Section 33 istration Act, Section 17(1). Transfer of Property Act, Section 105 Dhan Prakash Gupta Vs Jai Narain Goel 1997{l) RCR (Rent) 395(Delhi) Necessarily registerable documents. - Non-registration of - Admissibility in evidence -Effect of - Collateral purposes - A document which is compulsorily registrable under Act the cannot be admitted in evidence if not registered - However it can still be received in evidence to be read for collateral purposes if it was stamped properly but not registered _ Collateral purposes pointed out - Unstamped document as per Stamp Act cannot be read for any purposes all .A.C. Lakshmipathy v. A.M Chakrapani Reddiar, 2001(2) RCR(Civil) 24(Madras)(DB) Partition Decree. - Instrument of partition - A decree for partition is also an instrument Partition in terms of Section 2(15) of Stamp Act - Selection 35 records that no instrument chargeable with duty shall be admissible in evidence - Stamp Act is purely an independent . financial legislation and cannot in any manner be read to obliterate the mandate of Article I of Limitation Act - Decision of Special Bench of Calcutta High Court in Bholanath Karmakar v. Madanmohan Karmakar, AIR 1988 Cal. I does not lay down good law and has been based on a manifest error in recording that the period of limitation for execution of a partition decree shall not begin to run until the decree is engrossed on requisite stamp paperHameed Joh (died) by LRs. v. Abdul Salam (died) 2001(4) RCR(Civil) 185(SC)
Querist :
Anonymous
(Querist) 12 August 2011
Can you please more information with reference to above?
Querist :
Anonymous
(Querist) 12 August 2011
My question was :
Can you please *provide* more information with reference to above?
Sorry for typo.
Querist :
Anonymous
(Querist) 12 August 2011
We have paid the full stamp duty as mentioned in Bombay Stamp act 1958, section 46(b) and (c). This is Rs.100 for partition of agricultural land.
Now, my thoughts are: our document is fully stamped but un-registered.
Is it right?
Manish Singh
(Expert) 18 August 2011
Firstly, oral family partition is a valid partition in the eyes of law.
secondly, why dont you use this sub-clause of the said fragment act to get your partition deed registered.
your document needs to be stamped as per the rate applicable in Maharshtra.
Sec 8AA :(e) Where the parties agree upon any other method of partition which will not result in the
creation of a fragment, that method shall be followed in effecting partition.
