Mrs . Shanta Rani (Housewife) 19 May 2012

Question for advocate mr bharat chugh

At the outset, let me compliment for your quantity and quality of contributions on these forums !

I have recently inherited 2 floors of a lease hold (L&DO 99 years perpetual Lease) plotted property. This dwelling is on the plotted land and was constructed in 1960 and has not undergone any structural changes since then. This is a ground plus 2 floor property and is located in NCT. While the ground floor was inherited by my uncle, the first floor and barasati floor came to my father vide a family understanding. The property

Recently, a third person has approached me and offered to rebuild the property. He claims that he has acquired my uncle’s share in the property in the year 2009. He is suggesting that I could either opt for collaboration and take floors of the proposed new structure or sell my share in the land to him. According to him, he has 50% share in the land, even though I have 2 floors of a 3 floor property/building (residential dwelling) and my uncle had just the ground floor. As per the records of L&DO it is my uncle and I who are the co-lessee as on May 2011. My Uncle seems to have sold this property on GPA/SA/Will basis.

My questions…

Can my Uncle sell the leasehold .property to a stranger on GPA/SA/Will basis without my written consent or prior permission from L&DO? What are the legal implications?
In light of the recent Supreme Court Judgement and the circular issued by Delhi Government on 27^th April 2012, what is the legal status of the buyer? What recourse can he take to protect his interest that may be of info/interest to me?
What is my legal position?
Can I retain the dwelling on an as is where is basis without and litigation?
While I want to retain the dwelling on an as is where is basis, just in case, I opt for collaboration, what is the best deal that I can ask for legally?

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3 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 19 May 2012

Dear Madam,

After going through the facts I have the following to opine :

1. Your uncle had an unfettered right to sell off his share of the property, and there is no requirement for the consent of the co-lessee. As regards property being leasehold normally the bar on sale of leasehold property is that you' can't sell it within 10 years of allotment (though exceptions are there). Hence I don't see any problems on that count too.

2. Since the transaction got completed before Oct, 2011 - it stands valid - only prospective sale of leasehold property has to be via a registered assignment of lease after payment of unearned increase etc.

3. Your legal position and the implications of this particular transaction on your rights would depend on the exact nature of the family settlement that you talked about - if was meant for and has the effect of being a mere expedient family arrangment for peace and calm of mind with no intention to effect a severance or partition, then since the property is a dwelling house, I the person acquiring from uncle can in no case acquire joint possession and can only seek a partition. In that partition suit also you would have the right to buy him out by exercising pre-emption rights (This is the combined effect of S.44 TPA and S.4 Partition Act, 1893)

In case a de-jure/legal partition was effected or in other words the family is not an undivided one - then in that case the above rights are not available to you, but you can offcourse retain your part. In case you desire going in for colloboration you can do that too.

Hope I've been able to help.

Regards,

Bharat

Advocate

1 Like

Mrs . Shanta Rani (Housewife) 19 May 2012

Mr Chugh,

Thanxs very much. That was really prompt !!

May I request you to simplify and elaborate ...

" 3. Your legal position and the implications of this particular transaction on your rights would depend on the exact nature of the family settlement that you talked about - if was meant for and has the effect of being a mere expedient family arrangment for peace and calm of mind with no intention to effect a severance or partition, then since the property is a dwelling house, I the person acquiring from uncle can in no case acquire joint possession and can only seek a partition. In that partition suit also you would have the right to buy him out by exercising pre-emption rights (This is the combined effect of S.44 TPA and S.4 Partition Act, 1893)

In case a de-jure/legal partition was effected or in other words the family is not an undivided one - then in that case the above rights are not available to you, but you can offcourse retain your part. In case you desire going in for colloboration you can do that too. "

more specific to points underlined

Regards

Shanta

Arshed Karim (Self Employed) 26 August 2012

Dear Sir,

My father bought a plot under “Deed of Absolute Conveyance” and then he distributed among his sons and daughters under “Deed of Hereditary Perpetual Lease”. I got the constructed ground floor under this distribution. In one clause of the above deed it is mentioned that “The lessee shall be entitled to modify or make and alteration in the existing residential building in any manner he likes or may let out the same or otherwise convey the same for whatever purpose or use and for such period or periods and on such terms and conditions as the lessee may fit and proper but without detriment to the rights and interests of other lessees of the lesser.” My father died in 2010.

Now my question is that I want to take loan against this property. Can I do so? If not they why?

Your immediate legal advice would be highly appreciated.

Thanking you in advance.

Yours sincerely

Arshed Karim