Partition suit filed in 2022 & I plaintiff & daughter of joint family. During my father lifetime he made registered family settlement deed in 1970 & given share to all of 2 daughters & 4 sons & he expired later in 1975. However, in partition deed 2 "recitals" clauses were mentioned (a) It is stated that there were no more joint family properties left for partition in the family (b) Parent’s share of property which was there in registered deed of 1972 should be divided among 4 sons equally after parents’ lifetime. However, in reality apart from registered deed properties there were still many more properties left out without being covered under registered deed of 1972 after my father’s death and those intestate properties were divided among 4 sons through unregistered deed in 1988 without daughters consent So after knowing facts filed suit for partition in respect of only those intestate properties which were not covered under registered deed of 1972. Among such intestate properties, few properties were illegally mutated into the names of my brothers & even few properties were sold to outsiders & one property RTC still stands in my father’s name & moreover, even as per unregistered deed of 1988 they not shared & acted and as such, there were disputes among my brothers. Questions 1. In the plaint copy, I stated that sale of intestate properties made by my brothers does not bind on my lawful share but not asked for null and void of such sale deeds in prayer of the suit but now defendants asking that (a) Plaintiff has not stated anything about her possession in the suit which means she is not in possession of any properties under suit and as such she should pay stamp duty as per section 35(1) of Karnataka court fee. (b) My suit more of includes agricultural lands and very few revenue sites and constructed buildings which were sold to outsiders So if this is the case, should I need to pay stamp duty as they are objecting now? 2. Also they objecting that we have not challenged unregistered deed of 1988 which was created by 4 sons privately but since we do t know where it is and what is there in that, we not challenged the same in prayer and more over it is not public document to challenge it and is it lawfully required to be challenged as per their arguments? 3. As per 1st recital clause in the deed of 1970 there were no more properties left for partition but actually there were properties left out and for the same I have filed suit but if that is the case is it compulsory to challenge registered deed of 1970 to remove such clause in the deed now? 4. In case of joint family properties, being a coparcener is it I am liable to pay stamp duty if I challenge such sale deeds made by my brothers to outsiders? 5. In partition suit is it compulsory to state that we are in possession or it is presumed that its being all r in possession in respect of joint family properties which were not sold?
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
you have to pay deficit stamp duty
2) take the plea that you dont have copy of un registered deed of 1988
3) ask for copy of said deed
4) then amend the plaint and ask for setting aside deed of 1988
5) not necessary to challenge deed of 1970
6) possession of one is regarded as possession of all
1. you have to pay court fee being proportionate to the share which you claim in the joint family properties. because a partition suit is for partition and separate possession. so defendant's objection is legally valid
2. if that unregistered deed is not challenged then you can apply to the court for amending your plaint if the trial has not yet commenced in order to meet the defendant's objections
3. not necessary because even after the 1970 deed, the parties can acquire properties to be treated as joint family property. however you can make an averment in your plaint that the 1970 deed did not cover all the joint family properties
4. you have to seek a declaration that the sale deeds between your brothers and third parties is not binding on you. you will have to pay nominal court fee for seeking such a declaration.
5. whether or not you are in possession is immaterial, since in a partition suit you will be asking for partition of the joint family properties by metes and bounds and for separate possession of your share for which you will have to pay the applicable court fee
1.a. If it is found that the requisite court fee was not paid then you may be directed by the court to make good the Deficit court fee.
You should understand the difference between court fee and the stamp duty, if court finds you that you are required to pay deficit court fee, you have to either pay it or your suit may be dismissed for the same reason.
2. You do not have to answer their such illegal and unlawful questions or allegations because once they accepted that it was an unregistered partition deed, then the said deed becomes invalid in the eyes of law, therefore the partition itself can be held as illegal and invalid. However even if it was a registered partition deed, since you being one of the shareholders, if you are excluded from the partition and allotment of your legitimate share in the property that were partitioned, you can claim your rightful share in the property through court of law.
3. You do not have to challenge the recitals mad in the 1970 deed. The properties subsequently discovered and found to be the family property, then you have full rights to claim your rightful share in them.
Do not get misguided by any false or misguiding information in this regard, which may be spread to dissuade your claim in the property.
4. You can mention that the sale done by the brothers which include your share in the property hence it is not binding on you therefore you are not required to pay stamp duty on them, however as far as the partition suit is concerned you may have to pay the court fee to the newly added property as per the court fee and suit valuation act of your state.
5. The mere mention of constructive possession will take care of all the issues.
1 to 3 its yes your observation is correct
4. No you are not liable
5. you need to state real facts without concealment
Dear Client,
To attain legal validity, a partition deed must be registered with the sub-registrar of the area in which the immovable asset is located. This is mandatory under Section 17 of the Indian registration Act, 1908. This means that the parties involved in the partition, will have to pay stamp duty charges (under the provisions of the Indian stamp Act, 1899) and registration charge, to get the partition deed registered.
Partition of any property is subject to the laws of inheritance. This brings into picture inheritance laws governing property division among Hindus, Muslims and Christians. At the time of partition, the share of each member is determined, based on his entitlement under the applicable inheritance laws.
In the case of common property the joint tenants or tenants-in-common, all of them are entitled to the said property and are entitled to enjoy the same. If one of them alone holds or occupies the entire property or part of it, his possession cannot be said unlawful. His physical possession is that of an owner of this own interest and also that of an agent as to the other co-owners. Therefore, the possession of one of the co-sharers is the possession of all of them. At the same time, it cannot be said that the person who has been in possession of the property is holding the property not only for himself but also in favour of other co-sharers. A co-sharer who is in possession of the property is also entitled to the enjoyment of the same. The possession of one of them is possession of all in the eye of law unless the person who has been in exclusive possession asserts his title in himself to the exclusion of the other co-sharer which may amount to ouster.
Thank You.
