On your father demise intestate his 50 per cent share in flat would devolve on you and your mother
2) your consent is necessary for sale of flat
Can my mother sell my deceased father's house without my consent?
My father died in 2015 intestate and his house was registered in his and my mother's name. Now my mother wants to sell the house in Ahmedabad and she doesn't bother to consult me at all. Although registration papers have her name, can my mother sell the house without my consent? My mother thinks that since the registration papers for the sale deed has her name, she is now owner of the house. my father died without any will. As a legal heir I should have rights on my father's house and I am not willing to sell the house. Please suggest
Asked 7 years ago in Property Law
Religion: Hindu
22 Answers
See if the house was on name of your father and your mother then in that case your mother cannot sale it without your consent. As in your fathers 50 percent share you and your mother has equal share, file a partition suit for your share and take an interim stay till disposal of the partition suit, but see since flat or house cannot be physically divided ultimately court will also order for its sell and dividing proceeds thereof.
1. Well, on the death of your father his half share in the property devolves upon you , your siblings , if any, and your mother in equal share.
2. So you have share in the property and in your absence your mother can transfer full ownership in the property.
3. Now to stop your mother from selling this house and to get your due share you can file a suit for partition and for injunction.
4. Otherwise you can accept your share of money and sell the property along with your mother.
1. The share of your father devolved on his widow and all children equally as he died intestate. Your mother cannot thus sell the entire house as she is only a co-owner and not absolute owner thereof.
2. To restrain your mother from selling the entire house and creating third party rights you may file a suit for permanent injunction and seek temporary injunction at the very first hearing.
Thanks for the advice, so technically am I only 25 % shareholder of the property value? Can my mother forcefully sell the property as she is 75% share holder ? In case I give consent my mother is not willing to pay even 25% value of the house. My mother has identified a potential buyer and he has perhaps paid some advance money for agreement for sale. My mother has still not signed that as she is out of station. How can I legally put a stop stay to this sale proposal. Please let me know
Asked 7 years ago
No she cannot forcefully sell the complete property without your consent. See if your mother is not wiling to give you 25 percent share then in that case you need to go for the partition suit in the court and taken an interim stay on the same.
After the death of your father you are the 25% stake holder in the property and your mother holds 75% even after without partition 75% share can be sold out which may create problem for you in a state you have to go and agree for this and negotiate for your 25% share in the property to be paid to you by your mother because this property is a long term capital gain to both of you that will be based on the previous registered document and the new document of registration you have to explain this to your mother that she cannot use entire proceeds in her account and she will be liable for a big tax.
If you have got a potential buyer for the property and your mother is agree to Salem the 75% of the house then it will be a good idea to go ahead with the deal.
She can't unless she is the exclusive owner. She needs your NOC for the same
I am not willing to give legal consent for the sale, should the sale agreement not have my name on it, the potential buyer has created a draft sale agreement with only my mother's name and is trying to influence her to sell the home in much less rate than it should be in a good location in Ahmedabad. Is it not legally binding that the sale deed and agreement should have my name when the property gets sold at all in future?
Asked 7 years ago
1. Yes, your mother can sell her 75% share alone and there is no legal restraint in it. However there would be hardly any buyer for this kind of sale.
2. However if you file a suit for partition and injunction then your mother can not sell her undivided share.
1. Since your father died intestate, his 50% share in the property would devolve equally to you and your mother.
2. Without taking you into confidence, your mother cannot sell the property on her own, as your mother has a share of 75% in the property and you have a share of 25% and the property is intact and not partitioned yet.
3. Without your signature, sale agreement would be incomplete and shall not have legal validity.
4. Submit a letter to the jurisdictional District/Sub Registrar highlighting your rights over the property and requesting the official not to entertain and stop the registration of Absolute Sale Deed in favour of the buyer.
5. Publish a Public Notice in leading newspapers in local language, as well as in English newspapers, regarding your right over the property and request the public not to fall prey, if your mother alone tries to sell the property.
6. Agreement of sale and Absolute Sale Deed should have your name also, as you are entitled to 25% share in the property.
In case the property is not partitioned then see cancel only 75% of her share and your name will appear only as a co-owner of a property and the Bear will have the right to get position on 75% of the property you cannot stop your mother but you can go for your benefit with will be good for you you can negotiate the matter as you wish to get yourself benefited out of this deal otherwise there will be an issue and you may not be able to get position on the property for your answer due to your hair and locational disadvantage.
1) you can file suit for partition for division of house by metes and bounds
2) suit seek injunction restraining mother from selling the house
you are one of the legal heirs
2) it is better you file suit for partition and injunction as advised herein above
If the property is on your mother's name, then she need not take anyone's permission or consent to dispose or alienate or transfer or sell the same to anyone of her choice as per her desire.
Dear Sir,
Where the property came through succession after the death of anyone of your family members and where she got such right in it, she can not sell it without your consent. Even if she purchased a property of of the funds from others she can not sell without getting consent of other family members if any, including you.
And she alone cannot alienate the property, which comes from her husband's side without your consent.
Hindu male dies intestate, his property devolves around his legal heirs. Section 10 of the Hindu Succession Act, 1956 gives in detail the list of Class I heirs who are to be given the first preference while dividing the property of the deceased.
Rule 1 of this Section provides for a share of property for the widow of the deceased.
Rule 2 of this Section provides for a share, each for the surviving sons and daughters and the mother of the deceased.
The sale agreement Sha have your name.and signature.
Yes the agreement and the deed will not be valid without your name and consent and you can file for cancellation of same and your share
At this stage issue a legal notice to mother to not sale flat illegally without your consent.
Sorry it was wrongly posted in this question.
Dear Madam,
You may take shelter under principle of “Pre-emption” and file a suit saying that you are ready to purchase her share and thus you can drag on the proceedings till she comes to terms. The details of above principles are as follows:
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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.
1. Since it is a dwelling house it can be sold by her to the extent of her share therein but the prospective buyer cannot take the possession thereof unless he files a suit for partition and the property is partitioned through a decree of the court.
2. As I said before, you may file a suit for permanent injunction to restrain your mother from creating third party rights.
You can send legal notice to District Registrar and sub registrar, where your property belongs to, stating that you are also one of the legal heir of the scheduled property bearing document number ....., there is a chance some one trying to cheat my mother to abduct the property. so without consulting us, the sale registration should not be done"
If possible, send copy to her as well as the buyer too.
So your notice will act as Encumbrance , so she cant do registration.
If the property is jointly owned then your father's share in the property shall devolve equally on all his legal heirs, i.e., your mother, your siblings and yourself.
You can file a partition suit and seek separate possession of your share in it and also can seek injunction to restrain her from alienating or encumbering the property in any manner till the disposal of the main suit for partition.
You can immediately file a partition suit and in that itself you can file an interlocutory application seeking temporary injunction restraining her from alienating the property till the disposal of the main suit.
The sale deed cannot be executed without your participation in it.
She is doing an illegal act by selling the property as an absolute owner.
She can sell only her share out of the property.