Sale of share in property

shyam lal (Querist) 30 September 2021 This query is : Open
Kindly advice. .
There is a registered WILL pertaining to the residential immovable property .

Where in it mentions the property has to be equally shared 1/3 each
among the three siblings.

There is no mention of metes and bounds in respect to division /equal sharing.

Hence by self demarcating his 1/3 equal share one of the share holder
sells his share to a third party.

Query ..is this sale Legally valid?

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Quick Summary

A discussion on the legality of selling a share in a jointly owned property when a will dictates equal division among three siblings. While an undivided share can generally be sold, selling a self-demarcated portion without clear metes and bounds can be challenged by other siblings. The validity often depends on whether the other siblings were aware of the sale, if they were given notice, and if they choose to contest it legally. The transfer of possession to the buyer can also be problematic.

Shubham Bhardwaj (Expert) 30 September 2021
Dear Mr Lal,

Your question should not be whether the sale is valid or not because every sale is valid unless and until challenged by someone with similar interests. let me give an example. If the other 2 siblings do not challenge the sale, it is completely valid and their non-challenge is indicative of their acquiesce to the sale. However, if one of them challenges the sale deed, then there is a legal trouble. So the next question is, can the sale be challenged and what is the chance of it succeeding ? In my opinion, the chance of the challenge succeeding will depend on the many if and buts. Such as : How long has it been for the sale to have concluded, Were the other siblings aware that third one is selling a share, etc etc.

Regards
Shubham Bhardwaj (Advocate)
District & Session Court, Chandigarh
Punjab & Haryana High Court, at Chandigarh

Disclaimer:- Opinion is only for guidance.

shyam lal (Querist) 30 September 2021
Very well explained Sir.
Thanks Mr.Bhardwaj.wish you had left your email id!

shyam lal (Querist) 01 October 2021
Attention Mr.Bhardwaj.talking about awareness of Sale may I add 30 days notice was given in writing.informing the sale there by what have to say in this particular situation.A reply would be highly appreciated.

Advocate Bhartesh goyal (Expert) 01 October 2021
Undivided share of property can be sold legally but Possession of such property can not be handover to buyer.If shareholder has sold undivided property by demarcation then it is illegal and other shareholder can challenge such sale.

Shubham Bhardwaj (Expert) 01 October 2021
Dear Mr Lal,
Thank you for the appreciation. Please take note of the following:-
In case the other siblings were given notice of the intended sale, then although the sale deed could still be challenged but the chances of it succeeding would be greatly reduced.

Further, I am in agreement with learned advocate Sh. Bhartesh Goyal G that possession would be problematic because there is no identifiable portion to give possession of. However, in my opinion there is one exception to this situation. Let me give an example to illustrate my point. Suppose the property we are taking about is a property consisting of 3 identifiable parts (identifiable means practically capable of being termed as individual unit such as A, B ,C), and one of the siblings sells A (it may be the most desirable part) and this fact is clearly mentioned in the sale deed and they were aware of the sale (as you have stated ). Now if the other siblings do not challenge the sale deed within the time limit under law, or before the further transfer of the property by the buyer to another person, the chances of the suit challenging sale deed succeeding would be extremely low.

That is why I say litigation is full of ifs and buts and no straight jacket formula can be stated.
I hope I have answered your query.

Regards
Shubham Bhardwaj (Advocate)

shyam lal (Querist) 01 October 2021
The ifs and buts of law are very well explained by you .I agree with you open ended opinion of law.
Much appreciated
Lal

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