Undivided sale of inherited property
Nitin Kedia
(Querist) 22 September 2018
This query is : Resolved
One of the two brothers is trying to sell their undivided portion of inherited property.
1. How can this sale be avoided.
2. What remedy he has if he himself want to purchase that portion.
3. If the sales deed is already executed than what remedy he has.
KISHAN DUTT KALASKAR
(Expert) 22 September 2018
Dear Sir,
You have first right over it. You can offer to purchase it. Or file suit for partition and stay.
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Right To Joint Possession And Right of Pre-emption
There are two views in this matter. The purchaser has no right to joint possession of the property compelling partition. He can sue all other coparceners for that purpose. [32]
If the vendee has obtained possession, the other coparceners can get him ejected by a suit. All that the purchaser is entitled to in such a suit is a declaration that he is entitled to the share of the coparcener against whom the decree has been passed.
The Bombay High Court has a different approach. It gives some discretion to the court in the matter of ejectment of a stranger purchaser. In Bhau Laxman v. Budha Manku [33] the court laid down three rules:
First, if a purchaser stranger of the undivided interest of a coparcener in a joint family property is out of possession, he should not be given joint possession with the other coparceners but should be left to his remedy of a suit for partition.
Secondly, on the other hand if the purchaser has obtained possession of the property, a coparcener who has been excluded may obtain joint possession with the purchaser.
Thirdly, the purchaser in possession need not be ejected in a suit for recovery of possession brought by an excluded coparcener. The matter should be decided on merits because he is not a trespasser. In a suitable case he may be declared to be entitled to hold (pending partition) as a tenant-in-common with other coparceners.
The issue came to be discussed by Supreme Court in M.V.S. Manikayala Rao v. M. Narasimhaswami [34] . The court held that it is well settled that a purchaser in such a case cannot claim to be put in joint possession with the other coparceners. He has only the right to ask for general partition of the joint property.
Raj Kumar Makkad
(Expert) 22 September 2018
1. By offering to purchase on the same terms and conditions as third party is offering failing which by filing the civil suit on that ground as the property is coparcener though there is no law of preemption in joint property.
2. As repllied above.
3. If sale-deed has been executed then dispute qua possession can be raised.
Dr J C Vashista
(Expert) 23 September 2018
Whether a queriest layman can follow the response of expert Mr. Kishan Dutt Judge Retired?
Dr J C Vashista
(Expert) 23 September 2018
Seek professional services of a local prudent lawyer for filing a suit for permanent and mandatory injunction (with application for stay- if the sale transaction is yet to be finalised) .
Q 2 is vague, "he himself want to purchase"? However, it is the discretion of vendor to sell the property to you or someone outsider, law can not restrict.
Q 3 has made your query as an examination hall question paper, "..if the sale deed is already executed..."? Seek guidance of your tutor.
