Am from Kerala. Our ancestral land is being partitioned. There are two pieces of ancestral land. One portion is in father name and the second one in mother’s. Both of them are no more. Partition of one piece is already over (after both parents died) and documentation also completed. In the piece of land that I received, there is an underground municipality water connection pipeline that was already existing and it was used to provide water supply to our common ancestor house. Now, with this partition, the ancestor house was given to the elder sibling; and in the partition deed, it is mentioned that the pipeline will be moved to the corner of my land, so that it will not hamper any future constructions. But, the pipe will still pass through my land and it goes to the elder sibling’s land. After partition and documentation, I now feel that the pipeline should not go through my land and also that the particular clause in the deed should not have been included. In fact, currently I do not have any objection in having the pipeline passing through my land as we are in good relationship at this point, but with future generation growing, they may not have the same bonding and this is to avoid any future complications when I/my children consider any sale or construct something in that piece of land. Now that the partition for the second piece is going to happen. In order to revoke the pipeline clause from the first partition deed, is it legally valid if we include a clause in the partition deed for the second piece of land that permits me to remove the pipeline at my discretion. Another point to note is that, the elder sibling who got the ancestral house and to whose house the pipeline is connected, has further gifted his portion of land to his daughter. The daughter in turn has demolished the ancestral house and constructed a new house. So my questions are: 1. Can I include a clause that says I have all the rights to remove the water connection pipeline from my land anytime at my discretion? 2. Does it make a difference if the sibling has gifted the land to his daughter? 3. If I decides to retain the pipeline and the particular clause in the deed, will it contribute to any future issues, when I intent for sale or construct a building. 4. What do you think as the best approach for this?
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1) the underground muncipal pipeline cannot be removed or shifted without the consent of muncipal corporation
2) even if you insert a clause of removal of underground pipeline at your discretion it cannot be shifted without consent of corporation
3) retain the pipeline it should not cause any problems in sale of land
4) if pipeline clause is to be deleted consent of daughter is necessary as she is the owner of land and house at present
1. Pipeline will be removed only with the permission of the municipal corporation. 2. Can we insert a clause that I have necessary discretion to remove the pipeline after getting the consent from municipal corporation? 3. In the second land partition deed, daughter is not a signatory, only her father to whom the portioned land went will be signing. So in which document daughter can provide the consent. Do you mean a stand alone agreement?
1) you can insert a clause that you can remove/ shift the pipeline after obtaining consent of municipal corporation
2) supplementary agreement can be entered into with daughter . her consent is necessary as she is the owner of land now
Also wanted to know if the sibling and future owners can claim any easement rights subsequently?
Easmentary right of necessity can be claimed if they do not have any access to their Land
2) 1) Section 13 of the Indian Easements Act deals with easement of necessity An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of necessity, if he has any other means of access to his land however more inconvenient it may be than be passing over his neighbours
1. The partition deed already states that the pipeline will be moved to the corner of your land. the said deed was signed by all the legal heirs of your father's property. It has not been mentioned as to who will move it. So, you have the right to move the pipeline to the corner of your land without taking any further permission from any body. However, in view of the good relationship you have with others, it will be prudent on your part to inform others about your shifting the pipe line to the corner of your land as specified in the said Partition Deed. You can mention the said clause in the second deed if you so wish but you can move it otherwise also as mentioned above.
2. The sibling has passed on her title as it is to her daughter i.e. with the condition that the pipe lines will be shifted to the corner of your land. So, gifting her land by your sibling to her daughter will not make any difference to the matter.
3. It will be prudent on your part to settle te matter now itself as you never know whether this simple issue will create any serious problem in future or not.
4. Shift the said pipeline now itself after informing the matter to all the signatories of the said partition deed.
1. Take permission from the Municipal corporation for shifting the pipe line at the earliest.
2. You can add the said clause though it will be out of context in connection with the partition of the next property. You already have the broad approval that the pipeline is to be shifted to the corner of your land and you require no further permission for making the said shift in your land.
3. In the said case, if you require a specific consent for your shifting the pipeline to the corner of your land, you should take a written consent from the daughter of your sibling.
1. easement right can be claimed if they are landlocked from all four sides.
2. Easement right can be claimed for ingress and outgress to and from their land/house to the nearest road/path for their daily living.
Sir, you mentioned that 'You can mention the said clause in the second deed if you so wish but you can move it otherwise also as mentioned above' Just to make it clear, in the first partition deed, it was mentioned to move the pipeline to side of the land, but now I wanted the new deed to mention that the pipeline be totally removed/taken out from my plot. So the clause in the new deed should override the earlier one. Is it legally possible? Also, as already mentioned, the sibling has transferred the ownership of said land to his daughter. Does this make any difference, as the new deed will only be signed by the sibling and daughter is not privy to that new partnership deed.
1) the first partition deed is for partition for land standing in name of deceased father which has been divided by metes and bounds
2)in said deed it is mentioned that pipeline would be moved to one side of land
3) you want the said clause to be removed . however problem is that said land has been gifted by your sibling to your neice ie his daughter
4) in such a case you should enter into suplemenatry agreement with your neice which would mention that pipeline would be removed from your plot with consent of muncipal corporation
1. In the instant case you are totally changing the clause mentioning the condition of the 1st partition deed since though it was mentioned therein that you can shift it to the corner of your land, you want it totally to be shifted to some other place.
2. You have not mentioned where or through whose land the said pipe line will be laid afresh for supplying water to the hose of your sibling's daughter.
3. Since you want to change the terms and condition of the 1st partition deed, you shall have to enter in to a rectification deed signed by all the parties of the earlier Deed. Mentioning about the change of condition of the 1st Deed in the 2nd Deed is totally out of context. Alternatively, you can enter in to fresh agreement with the daughter of your sibling about the said shifting of pipe line connecting her house.
1. Can I include a clause that says I have all the rights to remove the water connection pipeline from my land anytime at my discretion?
if opposite party is agree then you can include this clause. you should try to put some conditions on their breach you can remove pipe line without giving notice. this condition is necessary becase in devoid of it the opposite party can file suit and take interpretation of the court on the word "discretion". this word has vast meaning and court can strike it out if it found arbitrary. ultimately it may be frustrated by the opposite party.
2. Does it make a difference if the sibling has gifted the land to his daughter?
this clause will run with the ownership of the property. it does not matter the who will be the owner.
2. Can we insert a clause that I have necessary discretion to remove the pipeline after getting the consent from municipal corporation?
don't involve third party in the agreement because it may cause delay in exercise of your right whenever it is necessary to exercise.
1. Can I include a clause that says I have all the rights to remove the water connection pipeline from my land anytime at my discretion?
In order to make any amendment to the previous partition deed and if both the parties to the deed agree to this amendment, can jointly execute a rectification deed to the existing partition deed with the new clauses inserted as rectification to that. The rectification deed so executed need not suffer stamp duty once again except for the registration charges.
2. Does it make a difference if the sibling has gifted the land to his daughter?
Your sibling can execute another rectification deed to the registered gift deed he made to his daughter.
3. If I decides to retain the pipeline and the particular clause in the deed, will it contribute to any future issues, when I intent for sale or construct a building.
The pipeline connection can be additionally sought by applying for fresh connection by a new owner to his property directly and can make arrangement for the said connection with the existing facilities too.
4. What do you think as the best approach for this?
It depends on the prevailing situation and your apprehension about future disputes in this regard.
1. Pipeline will be removed only with the permission of the municipal corporation.
2. Can we insert a clause that I have necessary discretion to remove the pipeline after getting the consent from municipal corporation?
Instead of reserving this action for a future date you can execute a rectification deed to amend this clause to the existing deed itself properly and legally so that you dont have to be worried about this anymore.
3. In the second land partition deed, daughter is not a signatory, only her father to whom the portioned land went will be signing. So in which document daughter can provide the consent. Do you mean a stand alone agreement?
Since the partition is between you and your sibling, first you can execute a rectification deed between yourselves, after that it is his problem with his daughter, if she needs a rectification deed, she can get it from her father. You do not have to be worried about it.
Sir, you mentioned that 'You can mention the said clause in the second deed if you so wish but you can move it otherwise also as mentioned above' Just to make it clear, in the first partition deed, it was mentioned to move the pipeline to side of the land, but now I wanted the new deed to mention that the pipeline be totally removed/taken out from my plot. So the clause in the new deed should override the earlier one. Is it legally possible? Also, as already mentioned, the sibling has transferred the ownership of said land to his daughter. Does this make any difference, as the new deed will only be signed by the sibling and daughter is not privy to that new partnership deed.
Since the proposed amendment to the existing partition deed is to be carried out as well as the new partition deed may not have any relevance to this part, you may execute a rectification deed with your brother and get your problem solved instead of confusing with the new deed.
Also wanted to know if the sibling and future owners can claim any easement rights subsequently?
There is no question of easement rights for the pipeline connection.
It is being fixed in a corner of a land hence there is no question of denial to such basic and essentials of habitation.