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Malar Vannon   21 February 2018

Partition of joint property

Sir,
My father had 5 ground property if which he gifted the back portion consisting 1 ground to my mother.

In 2001 my father made 4 gift settlement deeds- 2 in my favour and 2 in my brother's favour each stating a 1/4th undivided share in land and buildings.
Simultaneously my mother made a gift settlement deed of the 1 ground in her name in favour of both of us stating 1/2 undivided share to each of us.
My parents are no more.
Now we want to mutually divide the property.
Please advise how do we go about and also what type of documentation is to be made.
Thank you
Yours sincerely

A MALAR VANNON


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 12 Replies

R.Ramachandran (Advocate)     21 February 2018

When you say Gift Settlement Deeds, whether they were registered in the Sub-registrar's office?

Malar Vannon   21 February 2018

Yes, everything has been registered

R.Ramachandran (Advocate)     21 February 2018

You divide the property amongst yourselves in the same proportion in which it was gifted to you.  Now, it has to be properly demarcated. You can reduce this into writing. How both of you obtained/have equal share has to be properly stated in the Partition Deed.  The partition deed in your case does not require Registration. 

Malar Vannon   21 February 2018

Sir, If the partition deed is not registered will it become legally valid. After demarcating we would like to have seperate title deeds to enable us to pass it on to our children and also to be able to mortgage the separated properties. How can this be done

R.Ramachandran (Advocate)     21 February 2018

Registration of partition deed would be required only if any rights/interests in property are created afresh.  In your case, you both already have interests in the property.  All that you propose to do is to demarcate it by metes and bounds.  That does not create any fresh interests/rights.  Therefore, I said that the partition deed in your case does not require registration (involving payment of stamp duty, which is otherwise unnecessary).

However, there ought to be provision for registering the partition deed, without insisting for payment of stamp duty, but only on payment of registration fee (which is only very nominal).  Once such a registration takes place, that will serve well for all your future needs.

Therefore, better check up with Sub-Registrar's office, explain to them how no fresh interests are being created, but only existing rights are being demarcated, and whether simple registration (without payment of Stamp duty) is possible.

Act accordingly.

Malar Vannon   21 February 2018

Sir, even if registration of the partition deed is done as suggested by you, there would be one document, isn't it. How can we get seperate documents ?

Malar Vannon   21 February 2018

I was told that partition deed is a single document and only extra copy can be had. Since it is essentially one document with one registration number how can we seperate documents, in case we need to mortgage

R.Ramachandran (Advocate)     21 February 2018

As you rightly state, one extra certified copy of the partition deed can be taken.  If at all, you would be mortgaging only your portion, the same can be done on the basis of the same partition deed.  Anybody who would like to take the property on mortgage would also independently make encumbrance check and satisfy themselves.  So, I dont think it would pose any problem.  Further more, on the basis of the said partition deed, you will also get suitable mutation in the Municipal Records.

Malar Vannon   21 February 2018

If my brother has a certified copy of the partition deed can he also mortgage or bequeth his portion using that copy

Malar Vannon   21 February 2018

By mutation of municipal records do you mean seperate pattas

R.Ramachandran (Advocate)     21 February 2018

Yes, on the basis of one copy of the partition deed, your brother, if he so desires can mortgage HIS PORTION of the property.

Mutation in municipal records (may be patta) in your area.

Malar Vannon   21 February 2018

Thank you sir, for the clarifications

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