There is partition preliminary decree between me and my sister and my sister's siblings brought up two gift deeds from the past 40 years ancestral documents claiming gift deeds from father and grandmother respectively in the partition suit after preliminary decree. The gift deeds were registered based on unprobated wills after preliminary decree. My sisters son and daughter filed gift deed and Will independently in the partition suit. The property belongs to my late mother who has purchased the property from bonafide owner. Now my sister and their children are occupying the property. We got preliminary decree can I have a right to dispose to third persons or I should file final decree proceedings for share in undivided property. How can gift deeds and will is treated when it is filed after preliminary decree in partition suit that too 40 years old will.
23 January 2021
You should initiate proceedings for final decree.Although you can sell your undivided share in property but it will create problems to purchaser so it will be better to get your specific marked share in property then sell it.
24 January 2021
Will without granting by a probate is not valid. If they have registered Deed of Gift then it is valid in the eyes of laws, but should have shown in Partition Suit. You can sell your property when it is undivided and un-demarcated in nature. There is a provision of laws in Transfer of Property Act. But if there any injunction in Partition suit then you can not sell the property.
Section 44 in The Transfer of Property Act, 1882 Transfer by one co-owner.—Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.