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JP Dubey (retired)     09 January 2013

Pleas for partition

Can deceased sister's legal heirs also file for partion of house property under joint lease deed with her brothers and sisters?

Mr A built a house on a leasehold plot acquired in 1964 in Bhopal, died intestate in 1982 survived by 5 daughters and 4 sons. The lease was renewed in 2010 in names of 9 persons ( 7 surviving heirs and widows of 2 deceased brothers). One sister expired in 2010 survived by husband and 2 daughters and the lease record corrected to substitue their names in place of the deceased. They now plan to file for partition for 1/9 share.

Brothers have put up an alleged NOTARISED family arrangement on nj stamp paper of rs.100 dated Feb 2000 where in sisters had consented to forgo their share just if brothers divided property among themselves amicably, an affidavit  by the now deceased sister dating back to Jan 1999! and another affidavit by all sisters in Aug. 2008 forgoing their shares and debarring their heirs also from making  any claims in the said property. Copies of these were obtained under RTI from Municipal Corp.

What is the validity of such a family settlement and such affidavits? Should the plaint simply ask for partition under HSA making no mention of these docs. or should the "family settlement" not being registered and  her not having signed papers with others due to her terminal illness?



 2 Replies

MohammedRaffiq Bijapur (Advocate)     09 January 2013

Yes the legal heirs of deceased sister can file suit for partition and separate possession of their legitimate share.

As far as the affidavits are concern it can be said that they donot take away the right of deceased sister since the document is not valid under law as required under Sec 17 of Indian Registration Act.

If  the affidavit dating back to Jan 1999 is relied, then, why did the names of heirs of deceased sister are substituted? would be the moot question.

JP Dubey (retired)     09 January 2013

Thanks Advocate Raffiq. My question is whether  it is more advisable to just ask for partition under HSA and let the opposite parties deny it with the help of family settlement and affidavits in which case the onus to prove validity of the document will be theirs. Or based on the copies received under RTI we take cognizance of such documents and challenge their validity in in our plea against stamp act and the deceased not being present before the notaries on the dates of docs, in which case the onus will be on us. 

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