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V. Agrawal (Software Engineer)     23 May 2015

Ancestral property division

Hi All, I have a unique problem at my ancestral property

Here's the background, there is a piece of land which has been undivided for 4 generations. 

1. My great grandfather had 3 sons.
2. Generation 1 had A,B,C (3) brothers (all of them passed away)
3. Generation 2 sons of gen1 - A had 4 sons, B had 3 and C had 3 again (some of them passed away)
4. Generation 3 has a lot more people (includes me)

There was no will/division from A,B,C as they owned a large property and were happy with it.

Now due to internal strife gen2 wants to distribute the property.
1. In case some of gen2 males has passed away, the PoA to agree to partition goes to their sons, daughters or widows? 

2. What will be the correct process of division? I mean, should the property first divided among gen2 (3 parts)? Will gen2 sons require representatives among themselves to allow 3 part division? Then for people to divide among themselves? 

Or should it be equal 10 parts?

3. What is the validity of a non registered deed? I see that Bihar's stamp duty is at 3%. Given the size of property not many are ready to register it. 

I have read online and find information to be conflicting. Some say a family settlement deed is required and should be registered. There are others which say if there is a verbal agreement and people have occupied the place, a simple document outlining the division followed by public notary (ie no registration or money to be paid) is also valid.

4. There is an auxiliary piece of land. It was owned by one of Gen1. He had then given it to all three families (including his) but in the name of elder sons wives. Will that land be part of division too?



Learning

 13 Replies

prof s c pratihar (medical practitioner &legal studies)     23 May 2015

Any document relating to transfer of property must be registered whether it is family settlement or following verdict of partition suit.however names can be entered in ror  byBLRO or by DLLro.try that.)

V. Agrawal (Software Engineer)     24 May 2015

I am a bit confused about the whole RoR thing. I have read somewhere that verbal agreement and occupany is enough for a public notary filing which I assume means entering the RoR. But then aren't we bypassing the registering the deed step?

Also, can someone help me out with other questions too.

One of my relatives has refused to sign papers and people have started harrassing him saying they will oust him from the ancestral property. My understanding of the Hindu sucession Act is that no one can oust a legitimate heir until the father has done so.

Suneet Gupta (www.vashiadvocates.com)     26 May 2015

The division of the Property in this case is simple.

Generation 1 - 03 equal divisions of entire property, one share each to A, B and C (now expired)

Generation 2
A's share - divide equally between A's sons and daughters
B's share - divide equally between B's sons and daughters
C's share - divide equally between C's sons and daughters

Generation 3
Divide share of each son and daughter of A to their respective heirs
Divide share of each son and daughter of B to their respective heirs
Divide share of each son and daughter of C to their respective heirs

E.g. A has 2 sons (X and Y) and 1 daughter (Z) - Divide share of A in 03 parts one each to X, Y and Z
X has passed away and has 02 sons only, and his wife is still alive - divide share of X in three parts, one for each son and one for the wife
Y is still alive - he keeps his share and it is not split any further, till his death
Z has passed away and has 01 son and 01 daughter - her share is divided in 2 parts, one each for the son and daughter

Similarly divide the shares of B and C. The Final Family partition deed or settlement deed is to be registered with the local Sub-Registrar's office and also communicated to the local tehsildar's office for final mutation of the property.

Please let me know if you need any additional clarifications regarding the above.

1 Like

V. Agrawal (Software Engineer)     26 May 2015

'Thanks that makes sense. But I had some doubts

If Gen 1 have passed away who would really be the signatory in the partition deed? The eldest son of A, B and C? 

The share Y gets (he is currently alive), can he transfer it in the name of his wife? I understand from Hindu Succession ACT that can't happen unless there is some kind of proxy sale. 

I am a bit confused by a link I read on another site which said

यदि विभाजन परिवार के सदस्यों के बीच मौखिक रूप से हो जाए और विभाजन के अनुसार सब सदस्य अपने अपने हिस्से पर काबिज हो जाएँ, तो पहले से आपसी सहमति से हो चुके विभाजन का स्मरण-पत्र लिखा जा कर परिवार के सभी सदस्यों और साक्षीगण के हस्ताक्षर करवा कर उसे नोटेरी पब्लिक के यहाँ सत्यापित कराया जा सकता है। विभाजन के ऐसे स्मरण पत्र का पंजीकृत होना आवश्यक नहीं है। ऐसा विभाजन का स्मरण-पत्र न्यायालय के समक्ष साक्ष्य में भी ग्राह्य होगा।

What I understand from above is - a verbal agreement's paper can be done and that doesn't require any registration of sorts. Is this correct? 

Suneet Gupta (www.vashiadvocates.com)     26 May 2015

The heirs who are currently alive and take the final shares in the property will be the signatories to the partition deed. If the partition deed is equitable, i.e. it gives the shares to the heirs as per the above rules of succession, then their will not be any stamp duty on the partition deed and it can be registered with only nominal fees.

If Y is alive, then he is the signatory to the Partition Deed and retains his share. However, he can subsequently gift his share to his wife through a separate Gift Deed. Though it is technically possible to combine the Gift in the Partition Deed, it is not advisable due to future complications.

1 Like

V. Agrawal (Software Engineer)     27 May 2015

Thanks for the answers but what will then a non-equitable partition deed be? Considering deed should be valid only if it is equitable, cause everyone has to agree that things are fair. Or am I missing something?

Also, can heirs X,Y and Z agree to a partition before the A, B and C division is done? To explain it further, there is a land which was A's personal property. So only X, Y, Z can have partition share of it. Can Y create an agreement saying I give up my share which will be inherited from yet undivided larger land (between A, B and C heirs) in exchange for taking up A's property? Or can he even vest them to Z in an exchange before the larger partition is done? My understanding is there is something called an exchange deed which can achieve this but then how will it work? Specially the exchange is something not really tangible in Y's hands.

 

Furthermore, if Y gifts this land to his wife. What is the validity of that gift deed? 

 

V. Agrawal (Software Engineer)     27 May 2015

Originally posted by : V. Agrawal
Thanks for the answers but what will then a non-equitable partition deed be? Considering deed should be valid only if it is equitable, cause everyone has to agree that things are fair. Or am I missing something?

Also, can heirs X,Y and Z agree to a partition before the A, B and C division is done? To explain it further, there is a land which was A's personal property. So only X, Y, Z can have partition share of it. Can Y create an agreement saying I give up my share which will be inherited from yet undivided larger land (between A, B and C heirs) in exchange for taking up A's property? Or can he even vest them to Z in an exchange before the larger partition is done? My understanding is there is something called an exchange deed which can achieve this but then how will it work? Specially the exchange is something not really tangible in Y's hands.

 

Furthermore, if Y gifts this land to his wife. What is the validity of that gift deed? 

 

Sorry I meant if the relinquishment is not via a settlement/relinquishment deed but rather a partition deed promising a relinquishent of yet undivided property.

Suneet Gupta (www.vashiadvocates.com)     01 June 2015

The partition deed can be in any format and can contain any manner of division of the ancestral property, e.g. X can relinquish part of his share or the whole in favour of Y or Z, (or even in favour of the heirs of B or C). The deed can mention that some particular property is given to X in lieu of his share in another property and can have all permutations and combinations of division of the ancestral property.

However, it is better to make a separate deed for purpose of gifting to wife or any other relative. Similarly, it is preferable to keep non-ancestral property out of the partition deed and to sign a separate deed if share in ancestral property is being swapped with another heir's self-acquired property. E.g. if X relinquishes his share in ancestral property in favour of Y, in lieu of a separate property being transferred by Y to X, then it is better to execute a separate transfer deed for this transaction, separate from the partition deed.

The deed is equitable is the partition is as per the shares prescribed under the Hindu Succession laws (explained before). It is inequitable if any of the heirs relinquish their shares in favour of others. In any case all the heirs must sign the deed ad it must be registered with the local sub-registrar for it to be valid. In some cases, if the division of the ancesrtal property is complicated and spans multiple districts, it is also prefereable to get a Succession Certificate from the Local Civil Court, where the common ancestor last resided.

1 Like

V. Agrawal (Software Engineer)     01 June 2015

Thanks for the answers. 

I understand people can create quite a lot of permutations and combinations of deeds but the question is can it break the flow of division stated in the first post (replacing Gens to steps):

Step 1 - 03 equal divisions of entire property, one share each to A, B and C (now expired)

Step 2
A's share - divide equally between A's sons and daughters
B's share - divide equally between B's sons and daughters
C's share - divide equally between C's sons and daughters

 

But what if the steps go like this:

Step 1 - A's share - divide equally between A's sons and daughters 

Step 2
03 equal divisions of entire property, one share each to A, B and C (now expired)

Step 3
B's share - divide equally between B's sons and daughters
C's share - divide equally between C's sons and daughters

 

Will Step 1 still be valid? Considering A's share has not really been partitioned yet. Specifically if the division between A heirs (X,Y,Z) becomes sort of relinquishment deed wherein everyone gives up a part to gain another part. 

The added complication is that there was a property i which was owned solely by A.

X takes over i by writing a partition deed promising Y and Z to give up on his shares, if Step 2 was to happen someday in the future. Is that valid? Specially if Y or Z were to feel that Step 2 doesn't give them equal property that was promised. 

 

Also, my understanding now is if the deed is non-equitable (ie there is some sort of relinquishment happening) then the deed cannot be registered by paying a nominal fees. It is rather required to pay a percentage of the property ( 2% as per gift tax?).

 

But if there is no relinquishment and it is equitable, then fees will be pretty nominal (1k or something? )

Suneet Gupta (www.vashiadvocates.com)     01 June 2015

The division is not step wise. The division steps described are for understanding only and just to arrive at the equitable distribution.

The deed is constructed in a different manner. The Deed just states the end division, e.g. Property 1 - To B, Property 2 - To X, Y and Z equally, Property 3 - To C, etc.

There can be no division amongst the subsequent heirs till the previous generations shares are divided. The entire division of the property has to be together and multiple deeds cannot be registered for the same set of properties.

Also as stated earlier, it is better to have an equitable distribution of all property in the partition deed (and get it registered with the nominal charges). Thereafter, a separate gift deed can be registered with the individual properties that are relinquished and / or exchanged.

1 Like

V. Agrawal (Software Engineer)     01 June 2015

Thanks for the clarification. I changed it to steps to make it easier to frame my question The "There can be no division amongst the subsequent heirs till the previous generations shares are divided." answers that.

Another clarification, when you say multiple deeds cannot be registered for same set of properties. Then the current deed should say something like what you said "The Deed just states the end division, e.g. Property 1 - To B, Property 2 - To X, Y and Z equally, Property 3 - To C, etc."

 

What if there is Deed1, saying Property 1 - To heirs of B, Property 2 to heirs of A, Property 3 - To heirs of C. 

Subsquently there is Deed1.1, 1.2 and 1.3 each of which saying:

Deed 1.1 -> Property 1 to T, U, V equally, heirs of B

Deed 1.2 -> Property 2 to X, Y, Z equally, heirs of A

Deed 1.3 -> Property 3 to Q,R,S equally, heirs of C

is this not valid? 

 

In that case, if heirs of Q (who is alive right now) want to divide among themselves they would need to create a deed 1.3.1 -> Property of Q (coming from division of Property 3) will that not be valid too? 

Suneet Gupta (www.vashiadvocates.com)     01 June 2015

This is not the right way. You need only one deed which mentions all the existing heirs of the property and their relationships to the common ancestor. Then the deed can divide the property amongst the existing heirs.

If Q is alive, then his subsequent heirs do not arise as heirs are of a dead person and not a live person. Q will inherit his share of the property presently and after his death only will his heirs inherit.

1 Like

V. Agrawal (Software Engineer)     01 June 2015

Awesome! Thank you.

This way I can challenge a deed my father (Y) did with his brothers X and Z. X had taken property t (belonged to grandfather B) in exchange for relinquishing his share "as heir of B" in yet undivided shop s and house h.

Y had got 70% of eventual share of B in s by relinquishing his share "as heir of B" in t and yet undivided h, s.

Z had got 30% of s and 100% of h eventual share of B by relinquishing his share "as heir of B" in t and yet undivided h, s.

Only thing remaining to be seen is if this really needs to go to court.

Thanks again.


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