Partition of land

Yes, with the consent of all other co-parceners.

Thank you.

If one of the legal heirs/cosharers are desirous of selling  their undivided share in the joint property to the prospective buyer willing to buy the unidentified and undivided share, then he/she can sell the same.

The buyer shall then file  a suit for partition and seek separate possession of his rightful share in the property.

Please see provisions of Section 44 of Transfer of Property Act -

Section 44.   Transfer by one co-owner.

Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

Accordingly, the co-owner can sell. The purchaser is entitled for joint possession except when the property is a dwelling house belonging to the undivided family unless he is a member of the said family.

Can a specific portion be sold by any of the legal heirs before it's partioned? Is it not illegal on the part of sub Registrar who executed sale deed? Is it not illegal on the part of the revenue officer who executed mutation in favour of the purchaser, without NOC from other legal heirs?

I do understand that I can sell my share of land? But how I know which portion of the vast land until and unless it's partioned to the satisfaction of all legal heirs?

What is the context for this query?

Perhaps you are asking a hypothetical question. You are right on the point when you say mutation cannot be done without the consent of other co-parceners when partition has not taken place. come with true facts.

Thank you.

My father is no more. we are 7 legal heirs,including my mother. we have 2.5 hect of agricultural land- split into three survey numbers,namely, survey no 199 (1.45 hect ) ,200 ( 0.21 hect ) and 202 (0.5 hect ) - total  2.16 hec.That means that of each share is 0.3085 hect..Hect. My mother, being the head of the family applied for joint mutation of land in Jan 2019. No action was taken by the Tehsildar and Patwari ,despite repeated request, nor a reply was given to any of the letters.Finally , the Tehsildar replied on 18.09.2023 stating that one of the legal heirs sold his share on 21.12.2017 and that particular portion has already been mutated in favour the purchase by the Tehsil and the land records has,accordingly, been changed.It was a sudden shock to our family. 

The below points are important .

1. 0.330 has been sold, more than the legitimate share area.

2. The entire 0.33 has been sold from survey no 199 which is more demanding , being adjacent to the main road.

3. No partition has yet been executed.

4. At no point of time, the other legal heirs were inormed / NOC obtained.

5. The sale deed was executed by the sub registrar followed by which 0.33 hect was mutated in favour of the purchaser by the  Revenue deptt.

6.No proper reply has yet been received from the revenue dept for any of our queries.

Hope, I have furnished adequate inputs/ details.

Pleasen advise

Regards

In the given facts, the said legal heir could have transferred/conveyed only the undivided share. You may obtain certified copy of the deed and ascertain the factual position.

But the fact is the office of the Tehsildar has already mutated a specific portion of area. 33 hect in favour of the purchaser and the original land records has been changed accordingly.

Tehsildar is not the final authority in the matter. Moreover, an entry in the revenue records is rebuttable. There are administrative as well as judicial remedies that you can pursue if the mutation is carried out improperly,

1. You have not obtained the EC or even if obtained you failed to note the alienation of certain portion of property.

2. If there is an encumbrance over the property, nothing prevented you from obtaining a certified copy of the document by which the encumbering transaction had taken place.

3. You are worried about the mutation records only even now, without having concern over a portion of property that has already vanished from your property.

4. The mutation records are not title documents.

5. Mutation of revenue records had taken place on the basis of the registered sale deed in favor of the applicant hence the revenue department cannot be held at fault.

6. Now what  you have to do is to look for an amicble partition, which seems impossible at this stage.

7. Therefore you can file a suit for partition seeking division of property  equally, at par with the other shareholders and allot your share with separate possession of your share in the property with  metes and bounds.and good and bad soil. 

8. As one of the legal heirs has already reported to have sold a share in the property, you can pray before the court to set aside that sale deed since it is illegal as the other shareholders are also having a share in that sold property as a right. 

9. You may approach an experienced and skilled lawyer in the local and proceed as suggested 

You file suit for partition impleading purchaser as party and compromise with him, 2.5 hectares means 250 guntas of land, 1/7th share means250/7  that is 35.75 guntas equals to. 35 hectares, the purchaser has right to claim on one sy no purchased by him, compromise with him.