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Monday, 21 July 2014

Practicle problems relating to partition of HUF

(a) Relating to witness

While getting the document attested by witness care should be taken in the selection of witness and in recording their full names and address on the instrument itself. In order to prove a document in the court of law, it is necessary that at least one of the attesting witness is called to prove the deed.

Whenever full name and address or not noted or strangers or less known persons are taken as attesting witnesses it become a problem to recall as to who signed after a lapse of time when the need to prove the document arises, besides when they are to be summoned in a court of law to prove the document by means of their deposition. Such strangers and unknown persons are neither co-operative nor willing witness so as to readily come forward and take the botheration of deposing and proving the document.

It is always prudent to have the attestation of a document only by such person who are either well acquainted or are relatives and friends and it is an act of prudence to specify their full names and addresses at the time of the execution of the document and its attestation by the witness.

(b) Availability of documents to each co-owner

In the case of partition deed properties are allotted to several members of the joint Hindu family by means of non instrument only and each of the co-owners or members of a joint Hindu family who is allotted a share as a result of the partition, so affected derives its title to the absolute ownership of the specified property. The instrument of partition is required to be compulsorily registered under the provisions of Indian registration Act and it is the registered document which is required to be produced as an evidence and proof of partition or as a proof of the absolute ownership of the specified property. The original registered document is, there fore, of grate importance and at times is indispensable.

In the case of any partition there has necessarily to be two or more persons to whom the property is allotted by means of one instrument only, while the original instrument can remain in the possession of one of the parties only and all the remaining parties have to depend upon the party in whose custody the original document remains.
  
In such cases a duplicate certificates certified copy should be obtained from the registrar office. Under the provision of Indian stamp act a counter part or a duplicate of any instrument, chargeable with duty and in respect of which the proper duty has been paid can be obtained by making the stamp paper of requisite value available which is quite negligible in most of the states.

The counterpart or the duplicate of the instrument can also be offered for registration, which attract the same registration fee as payable on the original instrument and each counterpart so registered carries the same weight and value as the original instrument which is written on the full stamp value applicable for a partition deed.                


The deed partition can as a matter of prudence be made out in as many counterparts. As the members amongst whom the partition is to be effected and each co-owner or member can thus be provided with a separate registered instrument which can remain in their possession and is readily available to them for all possible eventualities.

(c) How registration possible at a place where property not situated

Section 30 of Indian registration Act empowers the registrar of the district by the persons seeking permission, starting the reasons as to why the concerned document is being offered for registration before him. One of the plausible reasons can be that either all or most the parties to the document are residing where the document is being offered for registration, while the property which is the subject-matter of registration is situated outside.

There can be many other reasons for which registration may be allowed. The discretion to register the document vested with the registrar without any fetters and thus very wide. The registrar is without any fetter and thus very wide. The registrar is at liberty as well as under an obligation to register the document for any reasonable cause or ground.
    
The basic principle is that stamp duty payable is the one which applied to the state where the document is executed. This provision can, there fore, be fruitfully enjoyed in all such cases where the stamp duty payable in other towns is lower as compared to the stamp duty payable at the actual place of transaction.

Precautions to be taken

(i) While drafting a deed partition, all the members who are entitled to have a share in the joint Hindu family property are to be made parties. Karta’s wife or the widowed mother through not entitled to claim partition, are nevertheless entitled to, a share when a partitions takes place between father and sons, the wife of the karta is entitled to an equal share and like wise when a partition takes place between brothers, the windowed mother becomes a necessary party to the document.

(ii) When partition is made by a father in the exercise of his paternal right and there are minor son is to be represented through the natural guardian and the mother guardian is to sign for and on behalf of the minor.

(iii) when the partition takes place between brother and there are unmarried sisters, a provision is necessarily required to be made for the maintenance and marriages of the unmarried daughters and/ or sisters as the case may be.

(iv) A deed of partition should give full recitals of the ownership of the property as well as the content of the relevant documents which go to establish the ownership of the property by the joint Hindu family.

(v)As earlier mentioned, while choosing witnesses, the parties should choose such witness, who is either close relative or friends so that they are readily available when ever so required. Further it shall be an act of prudence that the witnesses chosen are younger persons and not of old age, so that with the lapse of time or at a time when witnesses are needed such persons are available to prove the document.

(vi)Whenever the document is executed in a number of counterparts as it ought to be when there are several persons who are allotted shares, the document should recite the number of counter parts is handed over and also the names of the person to whom the first counterpart is handed over and also the names of the persons to whom the other counterparts are to be handed over.


(v). When ever the parties are effecting a total partition, it should be so specified that all assets and liabilities exiting or contingent, should be divided.