Ashish Chhabra 13 September 2023

Sale of property and giving posession of different property

I am the owner of GF and third floor of property and in posession of second floor of property while my sister is the owner of first floor and second floor while in posession of ground floor of the property. Second floor is half constructed so technically I can't construct the third floor of the property. Me and my sister are owner of the property through sale deed executed 26 years back by my mother who was the original alottee of the property, but we never interchanged the posession as we both were not in good talking terms so we never thought of taking the posession of our original floors. Now my sister has sold her share to the third party ( first floor and second floor) and has given the posession of ground floor to the third party while posession of first floor remains with me.

Please advise what are my legal remedies as the third party is not willing to construct the second floor depriving of my rights to construct the third floor and how can I legally challange the sale deed executed 15 days ago between the third party and my sister

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LCI Thought Leader Sanjeev Duggal Advocate 27 October 2023

You can file a suit for specific performance under Section 16(c) of the Specific Relief Act, 1963, to compel the third party (buyer of your sister's share) to complete the purchase by allowing you to construct the third floor, as you are entitled to the second floor. The court may issue an order for specific performance if it deems fit. You can file a partition suit under Section 44 of the Transfer of Property Act, seeking a division of the property in accordance with your respective ownership rights. This can help clarify each party's share and rights to specific portions of the property.

You may consider filing a suit to challenge the sale deed executed between your sister and the third party. Grounds for challenging the sale deed could include fraud, misrepresentation, coercion, or any other legal defect in the transaction. The court may cancel the sale deed if it finds merit in your case.
File a suit for a declaration of ownership and possession under Section 34 of the Specific Relief Act, seeking a declaration from the court regarding your ownership rights and possession of the second floor, which would enable you to construct the third floor.

In Sri Ram Pasricha v. Jagannath (1976) Court held that a decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use.

P. Venu (Advocate) 29 October 2023

The facts posted disclose that the third floor is not in existence as the second floor construction is not yet completed. How could you be the owner of a non-existent floor?