Claims against unregistered partition deed
Hi, i am planning to buy an apartment from a builder in bangalore and had this observation when i was verifying the documents that the builder provided. I had some question. Let me try to simplify.A father has 2 sons (A and B) and 2 (C and D) daughters. The father acquires a land (3 acres) in his life time ie it is a self acquired property. The builder has provided a panchayat partition document (he calls it by this name) - it is in kannada and is executed on a stamp paper among the 2 sons ans 2 daughters with some witnesses. Note that this document is not registered. Per this document, the 3 acres of land will be taken by the 2 sons and the 2 sisters will take cash and jewellery. This document is dated 1992. The builder also shared the judgement details of a similar case. At a later point of time the 2 sons orally split the land among themselves where A gets 2 acres and B gets 1 acre. A sells his 2 acre land to the builder in 2002. The builder is now constructing the apartments in this piece of land -So the question is - can the two daughters (C and D) file a suit against the builder ( who bought the land from one of the sons ie A) now (i.e. in 2014)?If the daughters do decide to file a suit then will the court accept it?If the court do accept the suit then would the developer be able to defend himself and win the case in his favor? If yes, then the documents mentioned above be sufficient ie non registered partition deed and a similar judgement passed by the court.Please note that the land is in Karnataka.
Asked in Property Law from Bangalore, Karnataka
1) yes daughters can file suit for share in the property . deed of partition is not duly stamped and registered . it is in admissible in evidence .
2) it is necessary to go through the partition deed executed between 4 children . whether proper stamp duty has been paid ? whether it is a mere memroandum recording the partition or actual division is made of the property of the deceased father
3)if daughters file the suit it would be a long drawn affair . it would take around 15 years to be disposed of . court may pass interim orders restraining builder from creating third party rights on said land
4) better avoid purchasing said flat . title of builder is not clear and marketable
Thanks sir. One more question related to the same - if the father sells an ancestral property to the builder along with the name, signature and consent of his children (ie the children are party to the sale) with the following reference in the sale deed -
'We having received entire sale consideration on behalf of ourselves and on behalf of minor children have adequately safeguarded the interest of minors by reinvesting their share in constructing the building in the alternate property, betterment of minor viz maintenance, education, health etc and we further hereby undertake to and fully indemnify the purchasers against any claims by or on behalf of the minors which may arise in future against the purchasers'
Then can the minors be grandchildren or any other minor file a suit against builder when they become major?
Reason - the entire builder project comprises of two parcels of land. One mentioned in my original query (1) and the second mentioned as part of this query (2). I am ruling out purchasing a flat in 1 and wanted to check whether 2 is clear.
Asked 3 years ago
Hi, from your narration it is the self acquired property and based on the "panchayath parikath" his sons and daughters are partitioned the property among-est them-self in which 3 accers of land fallen to the share two brothers here one important thing is that in karnataka Panchayath parikath is valid and it is not compulsorily registered but they have to acted on the panchayath parikath i.e revenue records has transferred as per partition but here only problem is that after the partition again brothers had divided the property by orally but they can't partitioned the property once again and provided two brother have equal right in 3 accres of land i.e 1 and half each............it is better builder has to execute release deed from one of his brother for remaining half accers of land then title will be clear or other wise it become problem.
Hi, If the Ancestral property was sold and all the family members are made party including minors then there is no problem.............
Thanks Pradeep sir. How do i find whether the revenue records have transferred? Btw, let me produce a section from the documents -
' the rtc document for the period 1991-92 to 2012-13 shows names of A (2 acres) and B (1a-22g) and there are no adverse claims over the survey number'
Also, the partition deed that the builder gave (which he calls panchayat partition) - how do i ascertain that it is panchayat parikath? Btw, it is executed on a 100 rs stamp paper
Asked 3 years ago
for sale of share of minor children in the property by guardian consent of court is necessary . minors can on becoming major file suit within period of 3 years of attaining majority challenging the sale of property
the partition deed appears to be grossly under stamped .
Hi pradeep sir, can you elaborate on 'all parties are made party including minors'?
The sale agreement dont name the minors but mentions a statement in sale agreement which i shared earlier? So would that suffice or is there a problem as well?
Asked 3 years ago
Hi, for your earlier query if the revenue entry shows 2 accers for one brother and 1 accers for 1 brother it is sufficient that they acted as per panchayath parikath and panchayath partition it self is pancahayath parikath and for your second query all party include minor.
Minor's property if transferred without the permission of court is voidable.
1.Minor's property can not be sold with out the permission of the Court,
2. Such sale can be challenged by the sad minors when they attain adulthood.
1) we have already advised you the legal pitfalls you may face in case of purchase of flat in the projects of builders short listed by you
2) if you still want to go ahead better contact a local lawyer and on basis of tile clearance certificate issued by advocate take the final call
1.Regarding your first query (1) The daughters can claim the property because the partition deed is understamped and not registered and therefore legally not valid. Moreover in the oral partition, no reasons are mentioned why one son got 2 Acres and the other son got less than his brother's share, out of 3 Acres.
2.Regarding your second query- Court's permission is essential for sale of minor's property. Inspite of this If you want to go ahead, the minor/s when they become major/s may challenge the sale and bring stay on the construction undertaken by the builder and court may pass interim orders restraining builder from creating third party rights on the said land. Better to avoid getting yourself embroiled in legal hassles. However you can contact a local advocate to peruse the records and to give correct advice.
A. The Partition can open at any point of time if the distribution of property was injustice
B. Unregistered partition deed was executed before Grama Panchyath would be valid subject to if the right recorded by the panchayath by creating the document of memorandum of partition deed.
C. We can't deny the litigation in your case due to partition unregistered while reading with A answer and kindly check any family arrangement or settlement is there between sisters.
D. Natural Guardian (Father ) can represent minor interest for their benefit. In so many cases it was upheld by the Apex Court. But Minor has right to question this transaction within 3 years from the date of attains majority.