• Partition deed done without consent of daughter dated in 2002

I am planning to buy a residential plot from a reputed builder in Bangalore, in a Gated community. After paying the advance i have the set of documents related to the property. Land upon which layout is built up is an inherited property and that person lets say X has made an agreement with the Builder. Current landlord X inherited the land from his father Y along with his sister in 2006, and partition deed looks to be fine.
But the real problem is with the partition deed which was made in 2002 by his father Y. Person Y had 2 sisters lets say A & B and none of their name is mentioned in the partition deed which was made in 2002. I contacted the builder's legal advocate they are saying when the partition was done in 2002 both the sister's A & B were dead hence they were not made part of the partition deed, however they don't have death certificates, So following are my questions:

1. Lets say somehow i get the death certificates of both the daughters and they were dead before 2002, then does it make their children have no rights in their Grandfathers property (considering none of their names mentioned in the partition deed)
2. Lets say they were indeed dead before 2002 but no official document exist, then what should i do? Getting the consent of their children is highly unlikely

(FYI, Inherited land comes under Hindhu partition law)

Thanks,
Karthik
Asked 8 months ago in Property Law from Bangalore, Karnataka
Religion: Hindu
Hi, If the daughters are died their legal heirs are necessary party so their names must be mentioned in the deed of partition.

2. If the property is the self acquired property then daughters have right over the property and if they have not made party in the partition deed it is a legal lacuna and in your case daughter is died then their legal heirs has to be made party in the partition deed.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. If the sisters were dead then their share in the property devolved on their legal heirs namely their widowers and children.

2. Unless the children of dead sisters have either executed a relinquishment deed in favour of Y or they now consent to the sale in your favour they will be at liberty to challenge the sale.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1. If the partition of the ancestral property had taken place earlier to the year 2005 and the women and their father were not alive as on 9th September 2005, then the Partition Deed which was executed in the year 2002 appears to be in order. However without perusing the documents it would be difficult to arrive at the decision.
2.Since the women were dead at the time of execution of Partition Deed of the ancestral property in 2002, their children will not have any right over their grand father's property in the instant case.
3.Since the death certificates of the women are not available, you can insist for an indemnity bond from the builder in your favour and also an affidavit from the current landlord stating that the women had died before 2002 
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
1) children  of A and B would have share in grand father property on demise of their mother 

2) the issue would be whether it is ancestral property or not . 

3) in case it is self acquired property of grand father it is not necessary for him to give sahe to children of predeceased daughters 

4) dont purchase any flat if title is not clear and marketable 

5) contact a local lawyer 
Ajay Sethi
Advocate, Mumbai
23315 Answers
1220 Consultations
5.0 on 5.0
1. Unless this was ancestral property the date of demise or partition is immaterial.
2. Indemnity bond by the builder will only give you a cause of action that you will have to prove in the court. Furthermore, it will not oust the legal remedies of the legal heirs of deceased daughters who succeeded to their shar
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1) you need death certificates to substantiate the statement that father and daughters died before 2002 

2) in the event builder gives you indemnity bond and subsequently legal heirs make any claim you would have to sue the builder . 

3) litigation is long drawn process and take years to be disposed of 

4) better avoid purchase of residential plot 
Ajay Sethi
Advocate, Mumbai
23315 Answers
1220 Consultations
5.0 on 5.0
Without perusal of the deed it is not possible to state whether it is self acquired or ancestral, but this does not seem to be ancestral. However, the fact remains that unless Y was the sole surviving legal heir of his ancestors, or the other heirs executed a relinquishment deed in his favour, he could not inherit the property in entirety.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
you can contact a local lawyer if you want to purchase the residential plot 

obtain certificate from lawyer that title is clear and marketable and free from encumbrances . 

property which has remained undivided for four generations would be ancestral property 
Ajay Sethi
Advocate, Mumbai
23315 Answers
1220 Consultations
5.0 on 5.0
death certificate is not necessary because Y's father is died before 2005 so property could not be inherited to Y's sisters. [ phulwati vs prakash AIR 2015 SC ]

Only coparcener can get property in inheritance and daughter is included as coparcener after 20 dec 2005, 
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0
Q. Currently i am dealing with person X, who belongs to 4th generation. he made a partition with his sister on 2006
A. he made so because sister is included as coparcener after 2005, she has vested right in ancestral property. 

if property is shown as ancestral (pithrarjitha) in revenue record thus it is treated as ancestral. no need to make inquiry about generation to generation.  
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0
1. Lets say somehow i get the death certificates of both the daughters and they were dead before 2002, then does it make their children have no rights in their Grandfathers property (considering none of their names mentioned in the partition deed)

Legally speaking, Y cannot be a sole owner if his father had died intestate.  Since Y is reported to have made a partition deed, you have not mentioned that whether he made partition of the properties with the surviving siblings only?
You have not stated that whether the dead sister were married at the time of their death and were survived by their respective legal heirs?, if yes, then the said legal heirs are entitled to their shares respectively hence the signatures of those heirs are essential in the partition  deed document.





2. Lets say they were indeed dead before 2002 but no official document exist, then what should i do? Getting the consent of their children is highly unlikely

in the situation as stated by you, since there was one more transaction within the family in the name of partition in the year 2006, the fct was very well in the knowledge of the legal heirs of the deceased sisters but they remained silent on it, you also may ignore the issue and proceed with your proposal. 

T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
5.0 on 5.0
1. If builder able to provide me the death certificates of both the sisters then does it alone sufficient? As the partition deed was made before 2005 does it make their children have no rights in the Grandfather's property?

The question is not about the entitlement of the grandfather's property to the grandchildren, it is about the legal heirs of the deceased daughters  who were entitled to a legitimate share in their father's property, hence the ruling of 2005 amendment is not applicable to this situation.




2. Second and also the oldest partition available on that land is dated in 2002, it is made by person Y who belongs to 3rd generation, also there is a mention in the partition deed that the land is "pithrarjitha". Before that looks like there were no official documents and land was passed on from first generation to second generation and to the 3rd, possibly through oral consent.

Once there was a partition, the term called 'ancestral' extinguishes with the partition.  
Therefore there is no question of ancestral property. In fact you have yourself mentioned about a partition deed in the year 2002, so there is no question of ancestral property n the hands of son of Y.
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
5.0 on 5.0
1. Currently i am dealing with person X, who belongs to 4th generation. he made a partition with his sister on 2006
2. Second and also the oldest partition available on that land is dated in 2002, it is made by person Y who belongs to 3rd generation, also there is a mention in the partition deed that the land is "pithrarjitha". Before that looks like there were no official documents and land was passed on from first generation to second generation and to the 3rd, possibly through oral consent.

Bothe above questions are based on your presumptions or baseless apprehensions.
Dont get confused about the word' pthrujita'.  That is a general mention and how did you know that it was the third generation or fourth generation when the olde partition in the year 2002 took place. 
You can set aside all your apprehensions and fears.
Further you can have a legal opinion from a local lawyer and proceed. 
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
5.0 on 5.0
1) you can go ahead and purchase the site in survey no which belongs to Z as your lawyer has certified that title is clear and marketable 

2) your sale deed must contain an indemnity clause wherein seller indemnifies you in case any claim si made in respect of the said plot of land 
Ajay Sethi
Advocate, Mumbai
23315 Answers
1220 Consultations
5.0 on 5.0
If the property remained unpartitioned for three generations and has fallen into the hands of fourth generation, in that event it can be considered as ancestral property. In the ancestral daughters were made entitled to an equal share to that of the sons   After the central amendment to the Hindu Succession Act in the year 2005 which has no retrospective effect.  In your case the partition took place in the year 2002 itself hence the nature of ancestral property stands extinguished. Therefore in my opinion, there was no necessity to get the consent of the sisters who were married before the amendment took place or the partition that took place before the amendment came into effect.
However if you are uncertain of the future legal complications, and also since your advocate opines that you can go ahead with the property of Z which the builder has agreed to give in exchange, you may assess the situation and decide about proceeding with the purchase.
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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Without perusal of documents it is not possible to answer your query, so if you have consulted a local lawyer and he has given his legal opinion after perusal of documents then heed his advice.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0

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