LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Raja Sundarraman (Advocate)     01 June 2008

Partition- Right of pre emption

    Respected Learned friends, Here is a case where three brothers  have got their respective share of lands partitioned alongwith the right to use the irrigation wall and channel on a rotational basis by way of partition.Now, one of them has entered with an agreement for sale of his share  with a stranger and other two brothers oppose the same and demand the share be conveyed to them on payment of reconsideration.  Kindly get me informed as to what all the remedies are availble to the brothers  and the applicability of the Partition Act ,1893 in this case. Thanking you.



Learning

 2 Replies

Prakash Yedhula (Lawyer)     01 June 2008

The brothers cant legally seek to purchase the property unless there is a right so reserved under the partition deed. However their right to use the common rights cannot be taken away even if the other brother sells his share.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     02 June 2008

"Raja Sundarraman" : MY personal "humble" VIEWS, on the issue : FIRSTLY, regarding the Land, - If the Land is an Ancestral Property, then the two brother can take re-course of the "First Right" to force the 3rd brother to "relinquish" his portion of the "Ancestral property" to the other two brothers on consideration basis. - The base right to privilege to partition the Ancestral property, originates under the Hindu Succession Act, since it concerns three brother of the same blood-line family. - Had the property belonged to three different NON-blood-line strangers, then non of them would have any right to the "First Right" of acquiring the 3rd property portion. - If the two brothers refuse to purchase the 3rd brothers property portion, ONLY then the 3rd brother will have complete liberty to sell off his land portion to a stranger (which then evolves outside the scope of right to privilege as far as Hindu Succession is concerned). SECONDLY, - The Partition Act, is restricted to the revenue "Land" part of the partition. - The right to use the Irrigation Well and Channel, cannot be covered under the Partition Act, which AT THE MOST, is "limited" to only an arrangement of convience / mutual facility (as in the nature of Contract). - If the irrigation Well/Channel falls in the Land-jurisdiction of the two brothers, THEN they can easily refuse to provide the "new owner", the facility of irrigation well/channel. (and Vice-Versa too) - The rights to the well/channel facility is restricted to the third brother and will not be good for the "new owner" The mutual conveience/facility Contract clause in the partition deed is over(expires), with the sale of the property. Same applies to "Right of Passage" thru the 2 brothers partioned land. Appropriate sections under the different Acts/ Laws, will have to be considered to bring the above issues under the legal scope. Keep Smiling ... Hemant Agarwal A QUOTE : "We owe almost all our knowledge not to those who have agreed but to those who have differed" - Charles Caleb Colton, 1780-1832, British Author and Clergyman

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register