• Unregistered family settlement

My father bought two flat in 1966 One in his name & other in mothers name.
He expires in 1975.leaving two son & two daughter No will is there 
His flat was transferred in the name of elder brother with the understanding that mothers flat will go to me.
In the year 2004 we entered in to family settlement saying that the mothers flat will be exclusively mine duly signed by all the children & witnessed by their spouses, this is unregistered but noterized.

In the year 2005 brother expired.
Now in year 2011 mother made a nomination in the society in favour of my nephew.
mother expired in 2014 ( if any will is there not known to me )

My question
1. This unregistered family settlement will be addmitable in the court or not?
I will get probate on this ground.
Once mother entered in to settlement she got the right to make nomination/will.
I will be highly obliged if you reply on my mail dineshjain54@hotmail.com
Also please let me know how can I get a personal appointment.
Asked 12 months ago in Family Law from MUNBAI, Maharashtra
Religion: Hindu
1) it is necessary to peruse deed of family settlement entered into by family members

2) deed of family settlement for division of assets  is  required to be stamped and regd 

3) it would not be admissible in evidence if it is not stamped and regd 

4)please note nominee is only a trustee for legal heirs 

5)further if your mother was a house wife and not working you can take the plea that flat bought in mother name by father for benefit of joint family . 

6) you and your brother family would have equal share in flat on mother demise 
Ajay Sethi
Advocate, Mumbai
23107 Answers
1213 Consultations
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First of all a nominee cannot acquire the title of a property on the basis of the nomination made by the deceased in his favor.  A nominee is a trustee on behalf of the legal heirs to receive the property on their behalf and disburse it to the legal heirs after receiving  it.  Therefore the property shall remain intestate and devolve equally o all her legal heirs.
An unregistered settlement is invalid in the eyes of law, however you may try to enforce the unregistered settlement deed since it has already been signed and is n the knowledge of the legal heirs of the deceased title holder. 
Whatever worth it is , you may consult a local lawyer who is well versed in the property laws and file a declaratory suit to declare your title on the basis o the the said unregistered settlement deed along with an interlocutory application seeking injunction restraining the defendants  from interfering in your possession or alienating the property till the disposal of the main suit. 
T Kalaiselvan
Advocate, Vellore
13915 Answers
127 Consultations
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1. A family settlement does not require mandatory registration. Nomination does not amount to transfer of ownership as a nominee is only a trustee of legal heirs. The family settlement could have been subsequently revoked by your mother except if the transfer of property was instantaneous. You should carry out a title search in the office of sub-registrar to ascertain if a will has been made or not.

2.You are free to consult any lawyer from the portal.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
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1. The question is who made the settlement and for whose property? If your mother was alive, without her consent, others can not make any settlement for her property during her lifetime. Moreover, no unregistered deed in connection with immovable property is valid in the eyes of law,

2. Was that a settlement deed or will? You can seek grant of probate of will only,

3. Will can be very much altered and the latest will supersedes the previous will for which the nomination of your mother is perfectly valid.
Krishna Kishore Ganguly
Advocate, Kolkata
12042 Answers
227 Consultations
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The family deed of settlement if not registered is not admissible in court. Only if the deed repeats to what the parties had already agreed and complying with the terms even before the execution of family deed then only its registration is not required.
Devajyoti Barman
Advocate, Kolkata
5149 Answers
54 Consultations
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An unregistered partition deed is admissible in evidence and can be looked into for non-suiting the claims for partition on the ground of prior partition, as long as the said document is not used as the source of title to any of the properties which erstwhile coparceners hold as a result of that partition." The above proposition is not disputed. In the above case also it is observed that the document is admissible in evidence as long as it is not used as source of title. In the present case, which is not a suit for partition but is a suit filed for declaration on the ground that the plaintiffs are the absolute owners of the property, the defendants sought to produce the disputed document to non-suit the plaintiffs and to prove their contention that they are the absolute owners of the property, as they got the same in a family partition.


Nadeem Qureshi
Advocate, New Delhi
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HIGH COURT OF ANDHRA PRADESH

THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY 

Civil Revision Petition No.5375 of 2009 

DATED:08-02-2010 

Pariti Suryakanthamma and another 

V 

Saripalli Srinivasa Rao and another 

This civil revision petition is directed against the order dated 21-10-2009 in O.S.No.162 of 2005, on the file of the Senior Civil Judge, Vizianagaram, wherein an unmarked document dated 07-11-1990 described as partition list (pampakapu jabitha) was permitted to be admitted in evidence.

2. Heard the learned counsel appearing for both sides. Perused the record.

3. The petitioners herein are the plaintiffs. They filed the suit against the respondents/defendants for a declaration that they are the absolute owners of the plaint schedule house and for a permanent injunction restraining the respondents/defendants from interfering with their possession and enjoyment. The respondents/defendants filed written statement and contested the suit. During trial, evidence was recorded on both sides and the matter stood posted for arguments. At that stage, the defendants filed I.A.No.789 of 2008 to reopen the evidence and another I.A.No.790 of 2008 to recall D.W.1 for further chief examination. The said applications were allowed on 31-08-2009. During the further chief-examination of D.W.1, the defendants sought to mark an unregistered document titled as 'pampakapu jabitha' (partition list) dated 07-11-1990 as an exhibit. The plaintiffs opposed the same on the ground that the said document is neither written on proper paper nor registered and the said document being a partition deed is inadmissible in evidence. After hearing both sides regarding the admissibility or otherwise of the said document, the learned Senior Civil Judge, by the impugned order dated 21-10-2009, permitted the defendants to mark the said document as an exhibit on the premise that the said document is only a partition list and not a partition deed and, therefore, does not require any stamp duty or registration. Aggrieved by the same, the plaintiffs preferred the present revision.

4. According to the plaintiffs, the first plaintiff was the absolute owner of the plaint schedule house having purchased the same under a registered sale deed dated 16-03-1970 from Mula Narasamma, who got the same by inheritance and as the first plaintiff had no issues, she settled the western half portion of the plaint schedule site in favour of her brothers' sons i.e., plaintiffs 2, 3 and 4 under a registered settlement deed dated 12-08-1993 and ever since they have been in continuous possession and enjoyment of the same. They would further contend that the defendants have no right, title or interest. Hence, they filed the suit for declaration of their title and also for a permanent injunction restraining the respondents/ defendants from interfering with their possession and enjoyment. The defendants, on the other hand, would contend that the said property and other properties belong to the defendants' family since over 90 years and above and they have been in possession and enjoyment of the same and the first plaintiff had no right, title or interest and the alleged settlement deed in favour of plaintiffs 2 to 4 is void and not binding on the defendants.

5. The written statement is, however, silent about the alleged partition. The written statement, does not, however specify as to how the defendants' family became owner of the plaint schedule property. After the evidence of the D.W.1 was sought to be reopened, the defendants produced the disputed document, which purports to be a partition list. The plaintiffs objected for marking the said document on the ground that it is a partition deed and is, therefore, inadmissible and is written on insufficiently stamped paper and is not a registered one and is, therefore, inadmissible in evidence. The document is described as pampakapu jabitha (partition list).

6. It is well settled that the nomenclature used for describing the document is of no consequence and the nature and character of the document has to be discerned only from its contents. The document is dated 07-11-1990 and is written on stamped papers worth Rs.3/-, 3/-, 2/-, Re.1/- and 1/-. The document states that a partition of moveable properties had already taken place 15 years back and the moveable properties were enjoyed separately by the respective sharers all these years. It further states that the document schedule mentioned vacant sites were, however, kept joint but subsequently they were also partitioned in the presence of elders and in the said partition, 'A' schedule vacant site fell to the first party and 'B' schedule vacant site fell to the share of the second party and both parties have taken possession of their respective shares even prior to the date of the document. It further purports to state that the document is now executed by way of a record of prior partition. The learned Senior Civil Judge observed that the recitals of the documents show that the partition of the property between the sharers had already taken place 15 years back and the same is reduced to writing in the form of a partition list under the disputed document. The reference to partition 15 years back in the document is only with regard to moveables. Though the document refers to prior partition of the vacant sites, it is not stated as to when and how long prior to the date of the document the said partition of the vacant sites had taken place. The document does not also specify any reason as to why it was felt necessary to reduce the same into writing. The document further stipulates that the partition arrangement is made absolute and put in vogue forever and further stipulates that neither of the parities shall ever complain nor dispute about the said partition. The schedule of the document narrates the details of the properties with reference to the survey numbers, extents and boundaries that fell to the share of each of the parties. A close reading of the entire document would disclose that though the document is captioned as a partition list, it is not a partition list simplicitor, which merely contains list of the items of property that fell to the share of each of the persons, but is a document whereunder partition of the vacant sites is sought to be made. A mere recital to the effect that partition had already taken place without specifying as to when the said partition had taken place and the same is now reduced to writing by way of a list, does not conceal the true nature and character of the document from being a partition deed in view of the other recitals contained in the document. The finding of the learned Senior Civil Judge that it is only a partition list and not a partition deed is, therefore, unsustainable.

7. The objection for the admissibility of the document is two fold - firstly, it is prepared on insufficiently stamped paper and secondly it is an unregistered document drafted on total stamp paper worth Rs.10/-. Article 40 of Schedule I-A of the Indian Stamp Act states that instrument of partition carries the same duty as a Bottomry Bond for the amount or the market value of the separated share or shares of the property.

8. Section 2(15) of the Indian Stamp Act defines 'instrument of partition' as follows:- "Instrument of Partition"' means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue authority or any civil court and an award by an arbitrator directing a partition (and a memorandum regarding past partition). It can, therefore, be seen that a memorandum regarding past partition is also brought within the definition of 'instrument of partition' by A.P. (Amendment) Act 17 of 1986 w.e.f. 16-08-1986. By virtue of the said amendment, a memorandum regarding past partition also amounts to instrument of partition requiring same duty as a bottomry bond for the amount or the market value of the separated share or shares. Even assuming that the disputed document is only a memorandum of past partition, still it is required to be drafted on stamp paper as per the market value of the share. The disputed document is, therefore, insufficiently stamped.

9. Section 35 of the Indian Stamp Act contains a bar against admissibility of such document in evidence and the same reads as follows:- Instruments not duly stamped inadmissible in evidence etc.:- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parities, authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. In view of the bar contained in Section 35 of the Indian Stamp Act, the disputed document becomes inadmissible in evidence for any purpose.

10. The learned counsel for respondents/defendants would contend that even an unregistered partition deed is admissible in evidence for the purpose of proving a collateral purpose like division of the status and nature and character of possession and in that connection he relied on a decision in PALLAPOTHU NAGA PRASAD AND OTHERS V. PALLAPOTHU VENKATA KRISHNA RAO AND OTHERS, 2003(6) ALT 631 wherein it was held as follows:- 
"An unregistered partition deed is admissible in evidence and can be looked into for non-suiting the claims for partition on the ground of prior partition, as long as the said document is not used as the source of title to any of the properties which erstwhile coparceners hold as a result of that partition." 
The above proposition is not disputed. In the above case also it is observed that the document is admissible in evidence as long as it is not used as source of title. In the present case, which is not a suit for partition but is a suit filed for declaration on the ground that the plaintiffs are the absolute owners of the property, the defendants sought to produce the disputed document to non-suit the plaintiffs and to prove their contention that they are the absolute owners of the property, as they got the same in a family partition. The defendants, therefore, intend to rely on the disputed document to prove their title to the suit property. The disputed document, according to the defendants, is the evidence of their title to the property. The purpose for which the defendants wanted to mark the disputed document in evidence is not for a collateral purpose but for the main purpose of proving their alleged title to the suit property. The question of admitting the disputed document in evidence for any collateral purpose by virtue of proviso to Section 49(c) of the Registration Act does not, therefore, arise.

11. In that connection, the learned counsel for the petitioners placed reliance on A.KRISHNA AND ANOTHER V. A. ARJUN RAO AND ANOTHER, 2004(3) ALD 34.

12. In RACHAKONDA RAMAKOTESWARA RAO AND OTHERS V. MANOHAR FUEL CENTRE, NEREDUCHERLA, KHAMMAM AND ANOTHER, 2003(2) ALD 638 this Court held as follows: 
"The bar engrafted under Section 35 of the Stamp Act is an absolute bar and, therefore, the document cannot be used for any purpose, unlike the bar contained in Section 49 of the Indian Registration Act (for brevity 'the Registration Act'). Under the proviso incorporated under Section 49 of the Registration Act, the document can be looked into even if it not registered for collateral purpose or other purpose specified inter alia in the proviso. The learned counsel appearing for the first respondent endeavours to make a distinction between the expression "as evidence" and the other expression 'in evidence' and contends that although a document cannot be received as evidence, the same can be looked into for a collateral matter for the purpose of showing the signature. This contention cannot be acceded, having regard to the fact that it is an absolute bar engrafted under Section 35 of the Stamp Act. Without receiving the document in evidence, it cannot be used even for the limited purpose. For admitting the document in evidence, it is got to be duly stamped although the purpose might be a different one. Therefore, the document in the first instance shall have to be received or admitted in evidence. Even for that the bar contained under Section 35 of the Stamp operates". 
In the present case also, the document is both insufficiently stamped and unregistered. The bar contained in Section 35 of the Indian Stamp Act being an absolute one, the document even assuming to be a memorandum of past partition, still coming within the definition of 'instrument of partition' under Section 2(15) of the Indian Stamp Act, is inadmissible in evidence for any purpose including a collateral purpose.

13. The learned counsel for the respondents/defendants would rely on another decision in MAJETI BASAVAMMA AND OTHERS V. MAJETI VENKATESWARA RAO AND OTHERS, 2006(4) ALD 260 wherein it was held that a record of family arrangement or settlement already made by itself does not create or extinguish any rights in immoveable property and is, therefore, not compulsorily registrable and where a document provides for execution of separate document and registration thereof at a later point of time, it cannot be treated as one conferring any rights or creating interest in the property. The above proposition is also not disputed. In the present case, the disputed document though purports to be a record of prior partition is in effect a document whereunder rights are created in favour of one party and extinguished for the other party regarding the respective items and the said document does not also contemplate execution of any regular partition deed in future. For the same reason, the decision in AMANGENTI PRAMEELA AND ANOTHER V. P.VENKAT REDDY (DIED) BY LRS AND OTHERS, 2004 (3) ALD 66 relied on by the learned counsel for the respondents/defendants is not applicable to the facts of the present case.
14. In fact, the defendants sought to produce and rely on the disputed document not for any collateral purpose but for the main purpose of proving their alleged title to the suit property and thereby non-suit the plaintiffs. The document is, therefore, inadmissible in evidence both in view of the bar contained under Section 35 of Indian Stamp Act as being insufficiently stamped, and also in view of Section 49 of the Registration Act.

15. In the circumstances, the impugned order permitting the admission of the document into evidence is held unsustainable and the same is accordingly set aside. .

16. In the result, the civil revision petition is allowed. There shall be no order as to costs.
Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
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