It is not clear whether you have appeared in the partition suit through a lawyer. If so, ask your advocate to file an Interim Application (IA) seeking permission of the court for you to relinquish your rights in favour of your daughter by executing and registering a deed of relinquishment during the pendency of the partition suit. Proceed after getting a favourable court order.
Transfer of Undivided Share by Mother During Pending Partition Suit
I seek legal advice regarding the transfer of my undivided share in inherited property. My husband passed away intestate, and his self-acquired property has devolved equally among me and my two daughters and one son, giving each of us a 1/4th undivided share. My son has already filed a partition suit, which is currently pending. I intend to transfer my 1/4th undivided share exclusively in favour of one of my daughters, who has been supporting me. Question: In the above circumstances, what is the most legally safe and dispute-resistant method (Release Deed or Settlement/Gift Deed) to transfer my undivided share to my daughter during the pendency of the partition suit, and what would be its legal effect?
Asked 5 hours ago in Property Law
Religion: Hindu
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3 Answers
1. Release/Relinquishment Deed is the best option in the given circumstances and not Gift Deed.
2. Alternatively, you can execute a valid WILL bequeathing your 1/4th undivided share exclusivesly to one of your daughters.
3. In respect of registered Release/Relinquishment Deed, your 1/4th undivided share gets transferred
immediately to one of your daughters upon your execution of the Release/Relinquishment Deed and in case of WILL, your 1/4th undivided share gets transferred to one of your daughters after your lifetime but not immediate.
A co-owner is legally entitled to transfer her undivided share, even during pendency of a partition suit.
However, such transfer is governed by the doctrine of lis pendens under section 52 of Transfer of Property Act, 1882. The transfer is valid but it is subject to the final decree in the pending partition suit, the transferee (your daughter) steps into your shoes and becomes bound by the outcome of the case.
It does not invalidate the transfer, but it prevents defeating the court process.
A Release Deed is normally executed between co-owners, releasing one’s share in favour of another co-owner. However, if the release deed is executed in favour of only one daughter, it may be objected to by the son stating that it is an attempt to prejudice partition. Though legally valid, it is sometimes challenged as inequitable in partition litigation.
Instead the transfer of your undivided share in favour of your daughter by executing a registered settlement deed will be a better option because as you are entitled to one fourth share in the property, you may transfer it to anyone of your choice which nobody can object to.
If you decide to proceed with settlement deed you proceed, ensure that the deed clearly states:
You are transferring only your undivided 1/4th share
Property is subject to pending partition suit (mention case number & court)
Transfer is subject to final decree.
This will protect your litigation interests
