Ancestral property division
To give a brief background on the situation.
My great grandfather owned two pieces of land - one where we have a shop (S), another one where we have our house(H).
He had 3 sons. All of them have passed away. These three grandfathers (G1,G2,G3) had - 4, 3, 3 sons (G11, G12, G13, G14, G21, G22, G23, G31, G32, G33)
G1 and G2 have died intestate without any will. So 25 years ago, in presence of G3, a document was drawn up. It divided the S property.
15 years ago, G21, G22 and G33 divided the property again. In this case the division happened on both S and H. There was also an additional property (H1 and S1) owned by G2 which got divided.
Here where things get confusing. There were two parties instead of 3 - G21 + G22 vs G23
The division document divided property as such:
Property S - 50% to G22 and 50% to G23
Property H - 100% to G23
Property H1 and S1 - 100% to G21
5 years later, there was another division but between G21 and G22:
Property S - 25% to G21 and 25% to G22
because G21 claimed the document said 50% to him and G22. The "and" being the stressed upon word.
So question becomes - Is it possible to divide an already divided property? Also, H was still undivided between G1, G2 and G3 heirs so did G21 et al had the authority to create such a division paper?
Things got even confusing this year. After an internal strife everyone wants to divide H. The document prepared says that 33% each has been given to "heirs of G1, G2 and G3" respectively. Now they want G21, G22 and G23 to divide the H between them. Again is this a valid way to do things? I divide a property between "heirs of someone" who is not alive and re-divide it again?
There is talk of dividing S again (after a gap of 25 years). In which case what is the validity of document signed by G21, G22 and G23, specially given they have signed off properties which is technically not divided yet.
The problem I am facing is, as son of G22 (who has passed away in 2008) I am being forced to honor the deal. As things stand it was quite a raw one and my father had done it trusting his brothers. For now I am not ready to accept this new division but I am being threatened with a case.
Asked in Property Law from Patna, Bihar
1) was property division25 years ago by G3 by partition deed duly stamped and registered ?
2) further whether the second division of properties shop and house 15 years back by partition deed duly stamped and registered ?
3) was mutation done in name of legal heirs on basis of partition deed ?
4) whether all legal heirs were parties to the deed of family settlement ?
5)the various documents cited by you have to be perused to give an opinion
6) contact a local lawyer
7) if you are dissatisfied and are being forced to sign on dotted line you can always move court for necessary reliefs
A mutually agreed partition will be legally valid especially if the same was properly done and registered.
If the entire partitions taken place earlier is confusing and if you feel that you have been deprived of your privilege in the ancestral properties, you may file a suit for partition,before that consult a good advocate in local discuss with him showing all the relevant papers, get his opinion and proceed further.
1. The division firstly took place 25 years ago in the presence of G3, but what were the terms of division have not been set out in your query.
2. Another division took place 15 years back among G21, G22 and G33. If the share of G1's children and G 31, G32 and G33 was given to them or preserved in the preceding division then a fresh division could have taken place among G21, G22 and G33. A property which has been divided once can be sub-divided again.
3. The fact of the matter is that after the demise of G1 and G2 who died without a will their share in shop and house was inherited equally by all their children, whereas G3 had left a will. The division of properties, unless there was a relinquishment of share by any of the children of G1 and G2, had to be compliant with the share if each legal heir.
4. If any of the heirs of G1 and G2 have been deprived of his/her share in the properties he/she can file for partition to cull it out.
5. You are not legally obligated to honour the deal if the deal has unlawfully deprived you of your lawful share in the property. You are at liberty to cull out your share by filing for partition in the court.
1. The terms of partition 25 years ago by G3 was - 33% to "heirs of G1", 33% to "heirs of G2" and 33% to G3 of the property S only. It was not registered rather an oral partition. Thing to note here is H was not divided at that time.
2. The partition 15 years ago is documented but not registered. Though even if it was registered, what is the validity? The reason being - it talks about giving and receiving property in a yet undivided H (and then S too). Could my father and his brothers divide a property for which their share has not been given or even assigned?
3. Mutation was not done.
Though current partition of H raises a question on mutation.
I have received paper for the partition deed of H which says "33% to heirs of G1" and "33% to heirs of G2" and "33% to heirs of G3". Now that G1, G2 and G3 are no longer alive, how valid is this kind of partition. Even if it goes through I cannot legally mutate something in my name.
To actually do a mutation another partition deed will need to be signed on the previous deed saying - "11% to G21, 11% to G22 (though as a heir to me) and 11% to G23". Then only some property can be mutated in my name. So is it valid to do such partition deeds, one after the other?
4. All legal heirs were involved in these previous partitions.
Asked 2 years ago
Partition in any form will be accepted as legally valid, therefore even if there was a oral partition or a partition done through an unregistered document, it can be considered as valid provide proof of partition by way of possession and enjoyment is proved beyond doubt before court. As far as the shares of others is concerned, it can be shared out of the share holders shares to their respective legal heirs.
1)oral partition is valid for division of shop between the legal heirs An oral partition between co-owners is valid in law. Sec. 9 of the Transfer of Property Act says that a transfer of property may be made without writing in every case in which a writing is not expressly required by law
2) A memorandum oral partition recording a past transaction need notbe registered.
3) the various documents mentioned by you have to be perused for advice
1. The partition made 25 years ago honours the share of every shareholder in as much as the heirs of G1 and G2 got 33% each while G3 himself got 33%.
2. An unregistered partition has no validity in the eyes of law. It is deemed as if the partition never took place and the property is undivided.
3. After the demise of G1, G2 and G3 their share has been inherited by their legal heirs.
4. The share of your father can be sub-divided among his heirs by drawing up a separate deed of partition. Mutation can be made even without a further division.