Dear Sir, We ( B & C ) inform you that after the death of our father, his dwelling house property belongs to his 3 sons (A, B & C) and 4 daughters. On 01/04/2013 all the four daughters gifted their shares of the dwelling house property to their brothers (A, B & C) by way of registered deed to enable easy way of partition of the above dwelling house among the three sons (A, B & C). It is to be noted that our father constructed three separate houses for his three sons in a common land measuring 34 satak in Basta mouja of ranaghat block -2 under Nadia district of West Bengal so that they ( sons) can live separately and peacefully. As such the above property of our deceased father belongs to three co-owners, ( A, B & C). Out of three co-owners, two co-owners (B & C) who are residing at kolkata, are willing to make mutual partition of the aforementioned property among us. Only one co-owner (A ), who resides there, is not interested to make mutual partition as he is enjoying all the interest of the dwelling house. Besides this he is unwilling to purchase the 2/3rd shares/interest of B & C in the above dwelling house. At this juncture we (B& C ) being 74 years old an ailing person are not willing to file a partition suit to hon’ble court for justice. That’s why we want to know whether: 1. We are eligible to sell our 2/3rd unmarked & undivided share/interest of our parental dwelling house property to a third party if other co –owner ( A ) is not willing to purchase our shares as per Indian properties and partition act? 2. Is there any legal barrier imposed upon us (B & C) if we ( B & C ) sell our 2/3rd unmarked and undivided share/interest of the above property to a Stranger ? Your faithfully, Two sons ( B & C ) of our deceased father
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1) under section 44 of transfer of property act co owner can sell his share without consent of other co owner
2) there is no legal bar to sale of your share in property to stranger . you had given first right of refusal to your brother but he declined to purchase it
1. yes,there is no legal bar to sell undivided joint proeprty to a anyone including a stranger-purchaser.
2. No ,there would be no legal penalty or impediment to be imposed if the sell the same.
So B & C can sell their undivided 2/3 share in the proeprty to anyone.
Only restraint is there if in the meantime A files a partition suit and seek injunction on selling of shares. Since he is enjoying the whole proeprty this scenario is very unlikely,
1. We are eligible to sell our 2/3rd unmarked & undivided share/interest of our parental dwelling house property to a third party if other co –owner ( A ) is not willing to purchase our shares as per Indian properties and partition act?
Yes, joint possession in house has special characteristic i.e. without partition buyer cannot take joint possession over the house. if buyer is ready to not take joint possession over the property until it is partitioned then you can sell your share. after purchasing your share he can file partition suit and take his 2/3 share in the property.
2. Is there any legal barrier imposed upon us (B & C) if we ( B & C ) sell our 2/3rd unmarked and undivided share/interest of the above property to a Stranger ?
there is no such barrier because you are absolute owner of 2/3 portion of the house, if one share holder does not co-operate and bars you to sell your share [in absence of partition] then law will be frustrated in this condition and one co-sharer can hold property for indefinite time. this is against the general rule. you can sell your share without partition.
1. You are entitled to sell off your undivided and undemarcated share of your father's property to the third parties if your said share of the property is refused to be purchased by Mr.A at the price at which you rae being able to sell your shares.
2. If your undivided shares are for separate houses, then you need not go for offering it to Mr. A (pre-empt).
3. There is no legal barrier for your selling your undivided and undemarcated share of your father's property to a third party after preempting the same to Mr.A.
1. If there is a buyer willing to buy the undivided share of property, especially if the unwilling shareholder is not willing to buy that share, then it can be sold to the prospective buyer.
There is no legal infirmity in it.
2. There is no such thing, you can go ahead in selling the same to a stranger.
