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Introduction
In 2004 India witnessed a major change in respect of Partitions deeds in respect of Hindu Joint Family property. Government made the stamping of a Partition Deed mandatory as per Section 6 of the Hindu Succession Act. Further as per Section 17(1) (b) of the Registration Act a document like Sale Deed, Gift Deed must be registered. The stamp duty provides revenue to the government and the registration gives notice to the public that the owner of the property has changed.
But in case of partitions the family members generally feels, and rightly so, that unnecessary publicity is not needed to the family disputes. And hence usually Partition Deeds are not registered.
But problem occurs when one of the siblings takes advantage of this non registration and after enjoying his share in order to grab the share of other siblings, says that no partition ever happened and hence the property should be divided again.
In the below mentioned article we will such a case and how to deal with such a dishonest claim of a brother/sister who is already divided.
Brief Facts
A & B’s father had two properties (let’s say), one house in Karol Bagh and another in Model Town. In the year 2000, after their father’s death A and B partitioned these properties so that Karol Bagh house went to A and the house in Model Town went to B. These details were mentioned in a Partition Deed in which it was shown which property is given to whom. After the partition B started living in his Model Town house. A sold his Karol Bagh house to a third party and taking the money from this sale he went to Canada with his family.
But in 2015, after about 15 years, A came back to India and filed a case in Court stating that his father only had one property namely the Model Town house and his brother is living there after throwing A out and hence he wants partition of this property. Of course this came as a shock to B who never thought that after 15 years such a challenge can be made to his share.
So, B stated the truth. He said that there have been a Partition Deed in which both A and B have signed and taken their respective share, so A’s share has already been given to him and now he cannot grab B’s share too. Though it seems it’s very easy to prove it but here is the catch. A Partition Deed must be mandatorily registered under Section 6 of the Hindu Succession Act and Section 17 (1) (b) of the Registration Act. And if it remains unregistered then Section 49 states that this Deed cannot be shown by a party to the Court. Even Section 35 of the Indian Stamp Act states that if stamp duty is not paid on Partition Deed then it will be inadmissible in any Court.
But Why Siblings Do Not Register Partition Deed
It often happens that the siblings in the family solve their disputes regarding paternal property themselves and without making any undue publicity of it. Further it makes sense to pay a stamp duty when you purchase a property from some stranger but when you are getting your father’s/mother’s property which was always yours, need to pay stamp duty is never felt. Especially when the stamp duty in Delhi is as high as 2 % of the value of the property, not to mention the payment of other taxes like Corporation Tax and visits to Sub Registrar’s office. Therefore it seems more reasonable that the property is simply divided between the brothers and sisters without registration or payment of stamp duty.
If all the brothers and sisters are honest then there is no problem also. But if one of the brother/sister challenges the partition stating that no partition ever happened, then there is a problem? It is very similar to the case of a Will which though in Delhi does not need to be verfited by Court(called Probate), but if someone becomes dishonest after taking his share then you have to knock at the Court’s door.
Now let’s see how to deal with this problem.
How to Produce an Unregistered and Unstamped Partition Deed in Court
Firstly you can simply request the Court under Order XIII of the Civil Procedure Code to take the document on record and say that you will be willing to pay the stamp duty in the Court itself. This is called Impounding. So let’s say a property worth Rs. 50,00,000/- came to you after partition and now your brother wants to grab a part of it, so you can simply say to the Court that they should impound the Partition Deed and you are ready to pay the stamp duty now (which you did not pay earlier).
But what if you don’t even want to pay this stamp duty or maybe you don’t have the financial capability of paying the stamp duty? Here comes the second solution. Now when you separated from your brother/sister by partition you will be in the ownership of your share of the property afterwards. So you will be paying property tax, electricity bill and water bill which will be in your name. Further it may happen that you induct a tenant into the property and he pays the rent to you may be through internet banking, PAYTM etc. These documents (property tax receipt, electricity bill,rent receipt etc.) do not need any registration and can be produced in the Court to show that you are living in the property for let’s say 15 years. Also even if the Partition Deed is not registered it can be still be taken on record to show that B came into the possession of the property in 2000.
Note:If you are living in the property for more than 12 years you become owner of the property even against a stranger, let alone your brother.
Conclusion
So we saw in the above article that non registration of a Partition Deed can be fatal but if a brother/sister can show that he/she is living in the property after partition then there is no need to worry about its stamping and registration. Even if stamping and registration is so much necessary it can be done by the Court to bring the document on record. But nevertheless as a civil litigation lawyer it will be my earnest suggestion that whenever you become owner of a property it’s better to register the document (which is Partition Deed in this case) with the Sub Registrar of the District, to avoid any future embarrassments.
Parveen Semwal
Advocate, High Court of Delhi and Supreme Court of India