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Sale of property with unregistered partition deed

(Querist) 22 July 2020 This query is : Resolved 
My friend and his brothers jointly bought a large plot. They made a partition deed which clearly defined the meats and bounds of their individual portions. But the deed was not registered. With this partition deed, they obtained CMDA approvals and built individual houses in their respective partitions. This happened 30 years ago.

They were paying property tax and other charges like EB on individual names for respective houses. They were enjoying their individual houses and partitions all these years, without any joint interaction.
As my friend died 10 years back, his wife and her sons got the Property Tax and EB transferred on to her name. Her sons gave a Release Deed on her name and this Release Deed was registered. She also applied for and got patta for her individual partition.

As she is in dire need of money now for her sons' higher education, she wants to sell her partition with her house. Is it possible for her to sell her portion without NOC from her brothers-in-law? Due to family disputes, they are not allowing her to sell her house saying that it is still a joint property. They will not give their consent when she wants to sell nor do they have the money to buy out her portion. Kindly advise on what is the best way for her to proceed
Isaac Gabriel (Expert) 22 July 2020
She has full right over the property as per records.She need get anybodies' consent for selling it.
Rajendra K Goyal (Expert) 22 July 2020
She can sell her portion if has clear title.

In case of doubt discuss in detail with local lawyer.
kavksatyanarayana Online (Expert) 22 July 2020
She can sell her property as it was already partitioned. However, as the partition deed was not registered, get the document validated through the court. so consult local advocate.
Adv. Yogesh V Nayyar (Expert) 22 July 2020
She has every right to sell the property without NOC. The partition deed though not registered but on the basis of the same both the parties having got their respective shares mutated in their names; the opponent is much aware of this fact and their say now that the property is joint property doesn't hold good either in general or before Court of Law.
In any given circumstance, if at all they wished, thy ought to have challenged the partition deed within 3 years time span, much long ago when it was executed, if at all they had any doubt of it's execution or otherwise.

Regards
Dr J C Vashista (Expert) 23 July 2020
@ Ra Ma,
Whether the subject land was purchased or leasehold, as stated by you that, "....she also applied for and got patta for her individual partition"?
Dr J C Vashista (Expert) 23 July 2020
If she is the titleholder of portion of land under occupation/ possession for the last 30 years or so, she has exclusive rights to sell it, being her self-aqcuired property.
Ra Ma (Querist) 23 July 2020
@ Dr J C Vashista, the subject land was purchased; not on leasehold
Aniket Giri (Expert) 23 July 2020
Unless a Deed of Partition is registered or a Final Decree of Partition is allowed by the Court of Law is passed, the property remains unpartitioned and all the owners have equal joint right, title & interest over the same even though they have demarcated their possession or record .of rights have been published in their names. The solution over here is that the owner who wants to transfer the property can do so by transferring her share in the property, say, 1/2 or 1/3 or 1/4 and not by metes and bounds. and the person buying the property will then become the joint owner and file a suit for partition.
P. Venu (Expert) 25 July 2020
The facts posted suggest that the partition or the settlement among the brothers have been acted upon and each of them has long been occupation of the property in their respective shares. The title of the legal heirs of the deceased brother has been further corroborated by the grant of patta. As such, the other brothers or their successors are estopped from claiming joint title to the entire property.

It is the settled legal position that family arrangement may be even oral in which case no registration is necessary.The Supreme Court held that even if a family arrangement which required registration was not registered, it would operate as a complete estoppel against the parties who have taken advantage of the family arrangement.

It has been held by the Supreme Court S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312 that:

“13. Equitable, principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.'

Based on the above principle. the unregistered partition, as stated, is saved by proviso to Section 49 of the Indian Registration Act:

49. Effect of non-registration of documents required to be registered.—No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall—
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.


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