• Partition of land purchased by two brothers

We are two brothers, who purchased an agricultural land in Lonavala, Maharashtra, out of our own funds, on which we have equal undivided shares. We jointly converted this land, into N.A. and carried out development, by constructing roads, compound walls, making small plots, for selling. We have four individual plots left with us, which are demarcated with individual 7/12 extracts. We have now decided mutually to partition the same by sharing two plots by each of us. We are Muslims, Mohamedans. What kind of deed can be executed between us and how much stamp duty shall be applicable.
Asked 5 years ago in Property Law
Religion: Muslim

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15 Answers

deed of partition can be executed

2) it has to be duly stamped and registered

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

1) You don't have to pay stamp duty as you are not selling your property here. You are doing partitions so just apply for partition and get partition deed.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

In case a partition is by mutual consent, a partition deed is executed by the co-owners. The partition deed is required to be registered at the office of the sub-registrar of the place where the property is situated as in case of any other registration.

The stamp duty payable in such a case is Rs 1,000 for each share of the property. Further, the registration fee will be Rs 500. More than one person may jointly own a property

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

Dear Sir,

The stamp duty and registration charges vary from state to place based on market value.

Better contact a local lawyer or a stamp vendor who will calculate and tell u exact amount based on recent revised rates.

When there is no other claimant or any dispute why do u want to go to court for partition which also attracts stamp duty and legal fee etc that too time consuming process.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

Dear client,

Oral partition is valid and once partition reduced into writting , registration and stamp duty payable around 2% of market value.

Yogendra Singh Rajawat
Advocate, Jaipur
22591 Answers
31 Consultations

4.4 on 5.0

A partition deed can be made

Both have equal undivided shares in the 4 plots. So by a partition deed the plots will be equally partitioned between two brothers, each becoming owner of 2 plots each

Therefore half equal undivided right in the 4 plots is being converted into absolute right for each plot such that each brother becomes absolute owner of 2 plots

Another option will be release deed. The brothers after mutually agreeing which plot goes to which brother, can execute release deed in favour of each other

Third option would be a gift under Muslim law which does not require any writing or registration. It has only 3 essentials - declaration of gift by donor, acceptance of gift by donee and transfer of possession by donor to donee. This can then be recorded in a Memorandum of Confirmation and can be notorised for record purpose. No stamp duty will be payable except nominal stamp paper of say 100 or 500 rupees for memorandum of confirmation

Each brother can gift his half undivided share in each plot to other brother such that both brothers become entitled to 2 plots each. All these gifts can be recorded vide 2 memorandum of confirmations for each brother

Yusuf Rampurawala
Advocate, Mumbai
7483 Answers
79 Consultations

5.0 on 5.0

This is my response to you:

1. Succession laws will be governed by the Indian Succession Act;

2. Also for division of the plots you will be bound by the laws of Transfer of Property Act;

3. You can execute a Family Settlement Deed and demarcate and distribute the property;

4. You can also execute and register a Partition Deed;

5. Consult a local lawyer and go ahead with drafts;

6. You can add clauses as per your wishes;

7. Incase of dispute, add an arbitration clause so that courtroom litigation is avoided.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

OPTION-1:

1. One Brother executes a Gift Deed for the Two plots (or his share ratio on the same) in favor of the other brother.

a) Stamp Duty: 200/-

b) Registration Fee: 200/-

OPTION-2:

2. Depending on the available documents, execute a Family Settlement Deed, with relevant strategic clauses, mentioning therein the partition of the residual property, to each other, in the pre-determined ratio.

a) Stamp Duty & Registration fee: Depends on the current rateable value of the property.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

As-salamu alaykum

I have come across many cases like this. As you are Muslims, Mohammedans so you can execute a partition deed in this regard. A partition deed for a property is executed to divide the property among different people - usually among the family members. A partition is a division of a property held jointly by several persons, so that each person gets a share and becomes the owner of the share allotted to him. It is done by dividing the property according to the shares to which each of the parties is entitled to in law as applicable to them. In case a partition is by mutual consent, a partition deed is executed by the co-owners. The partition deed is required to be registered at the office of the sub-registrar of the place where the property is situated.

A partition deed creates new owners of a property and needs to be registered at the office of the sub-registrar to give it a legal and binding effect. The deed should in particular mention the date from which the partition is effective. The names of the parties and their respective shares should be specifically mentioned.

The stamp duty payable in such a case is Rs 1,000 for each share of the property. Further, the registration fee will be Rs 500 in Mumbai, Maharashtra.

If you need any help you can contact my assistant to book a consultation. I will help you.

SHRI GOPAL VERMA

ADVOCATE ON RECORD

SUPREME COURT OF INDIA

Shri Gopal Verma
Advocate, New Delhi
371 Answers
10 Consultations

4.0 on 5.0

Partition law is common for all religions under the given circumstances.

Since both have decided to divide the properties between you equally you can draw a family arrangement deed as per the mutually agreed conditions and get it registered to become absolute owner of your respective share in the jointly held property.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Hi,

The settlement deed may also solve the purpose.

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

Provisions relating to gift of immovable property contained in Transfer of Property Act do not apply to or affect Mohammedan Law - see section 129 of Transfer of Property Act

Why do you need gazette notifications when there are Supreme Court judgments on the subject?

The Talathi will need some document on basis of which he can do the mutation entry in the 7/12 extracts

That document will be the Memorandum of Confirmation recording transaction of oral gift between the brothers

However these people do not understand and recognise such Memo of Confirmation or other recording documents. Even if you produce the Supreme Court judgment they will say go get a declaration from Court

In that case you will have to ask the Talathi to give a written order refusing to effect mutation on basis of such recording document evidencing a Muslim gift and then approach the High Court by filing a Writ Petition

Yusuf Rampurawala
Advocate, Mumbai
7483 Answers
79 Consultations

5.0 on 5.0

I missed the aspect Muslim ?

Under mualim law declaration as well as acceptance of gift may be oral whatever may be nature of property gifted. When the gift is made in writing, it is known as Hibanama[x]. This gift deed need not be on stamp paper and also need not be attested or registered. This held by court in India.

But if will go for registration - stamp duty payable.

Yogendra Singh Rajawat
Advocate, Jaipur
22591 Answers
31 Consultations

4.4 on 5.0

bench of justices R M Lodha and S S Nijjar in a judgement quashed a ruling of the Andhra Pradesh High Court that the property gifted by late Shaik Dawood to one of his sons Mohammed Yakub was not valid as it was not registered under the law. The bench said the three essentials of a gift under Mohammadan Law are (i) declaration of the gift by the donor (2) acceptance of the gift by the donee and (3) delivery of possession. "Though the rules of Mohammadan Law do not make writing essential to the validity of a gift, an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled," Justice Lodha writing the judgement said. The apex court passed the judgement while upholding the appeal filed by Yakub challenging the High Court's ruling which had set aside a Visakhapatnam trial court decree that no such registeration was required. In the instant case, Shaikh Dawood had gifted (hiba) his properties to one of his sons Yakub on February 5, 1968, by way of an unregistered written document. The validity of the gift was challenged by his other son Shaikh Farid and family members. Though the trial court rejected their plea, the High Court took the contrary view that the gift was invalid as it was not registered. The apex court said Section 17(1)(a)of the Registration Act leaves no manner of doubt that an instrument of gift of immoveable property requires registration irrespective of the value of the propertY

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

As per the Muslim Law, a gift is called as Hiba.

as per section 129 of the Act, the Transfer of Property Act, 1882 does not apply to the Muslims making gift.

Since muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an acceptance (qabul), and transfer (qabza).

A gift of immovable property made by a Muslim is valid even if it is not registered under the Transfer of Property Act or the Stamps and Registration Act, the Supreme Court ruled."Though the rules of Mohammadan Law do not make writing essential to the validity of a gift, an oral gift fulfilling all the three essentials make the gift complete and

irrevocable. However, the donor may record the transaction of gift in writing. The apex court said though the TP Act mandates registration of a gift, the same would not apply to a Muslim donor as the community has been exempted from the provision.

The mutation of revenue records and other aspects involved in the revenue department may be enquired locally since the local law is also involved in it.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

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