Father bought property in minor son's nam
Guest
(Querist) 07 May 2020
This query is : Resolved
Hi
My father bought property in the name of 3 minor sons . it was a agricultural land. my father paid for the land. We were 5 7 and 11 years old respectively.
Now after 20 years my father wants to sell the property because of financial problem.
all 3 children are now adult but elder brother is refusiing to sell his share in property.
Younger 2 child has already signed for sale but elder brother is refusing to sign because of issues with father.
What can be done in this case?
does my father have right to sell the property
and how
Raj Kumar Makkad
(Expert) 07 May 2020
Nothing can be done in this case. Every person in whose name the property is registered is its exclusive owner hence your elder brother cannot be pressurized legally to sale his property.
P. Venu
(Expert) 08 May 2020
Technically, shares in the undivided property could be sold. Else, the property could be partitioned the property, excluding the elder brother's could be sold. However, if he is unwilling, the process of partition is bound to take years.
Guest
(Expert) 08 May 2020
Generally the Partition Suit would take maximum 3 years for completion. The grant of preliminary decree would take 2 years and another 1 year would be taken for obtaining the share in the property.Still you could plead in the Court for completion on Priority basing on Legally Valid reasons like the requirement of Parents , Medical reasons and if your Parents are Senior Citizens the priority of the Suit could be pleaded for that reason also. Discuss with your local Advocate.
Rajendra K Goyal
(Expert) 08 May 2020
You said:
My father bought property in the name of 3 minor sons . it was a agricultural land. my father paid for the land. We were 5 7 and 11 years old respectively.
Reply:
If the property is in the name of sons, they are owners even if father has paid the purchase consideration.
You said:
Now after 20 years my father wants to sell the property because of financial problem. all 3 children are now adult but elder brother is refusiing to sell his share in property.
Reply:
If any of the Brother is not agreeing, his share cannot be sold.
Rajendra K Goyal
(Expert) 08 May 2020
You said:
Younger 2 child has already signed for sale but elder brother is refusing to sign because of issues with father. What can be done in this case?
Reply:
Share of younger 2 can be sold. Either arrive at any understanding with elder brother or leave his share with him.
You said:
does my father have right to sell the property and how
Reply:
Your father is not at all the owner of property, legally he cannot sell even an inch of property as this belong to his sons.
T. Kalaiselvan, Advocate
(Expert) 08 May 2020
The property was bought by your father by a registered sale deed on his sons name jointly.
Thus, legally the property belongs to his sons alone and he cannot claim any right over it.
If one of the cosharers is not willing to sell his share in the property then the other shareholders cannot force the unwilling shareholder to sell his share of property also together.
If the property is undivided, then the shareholders who want to sell the property can file a parition suit and seek division of property with separate possession in order to enable them to sell their share of property after that.
Dr J C Vashista
(Expert) 08 May 2020
Since the elder son do not want to sell his share, where he is absolute owner, you can not compel him.
However, since all of you were minor at the time of purchase and no independent source of income forced your father to make payment of consideration, which is admitted fact. consequently the transaction is covered under the provisions of Section 4(2) of Benami Transaction (Prohibition) Act, 1988 hence your father can reclaim the property.
Dr J C Vashista
(Expert) 08 May 2020
Section - 4, Prohibition of Benami Property Transactions Act, 1988
Prohibition of the right to recover property held benami.
4. (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) [***]
Isaac Gabriel
(Expert) 09 May 2020
The best couse of action is to invoke the Benomi Property Tansaction Act 1988 by the father.The limitation period is a non criterion for initiating suit.
P. Venu
(Expert) 10 May 2020
I am at loss to understand, in spite of all my best efforts during the past couple of day. how the provisions of Benami Transaction Prohibition ) Act, esp. Section 4(2) is relevant in the instant case. The Act, as I could understand, prohibits such transactions at the pain of punishment and confiscation of the property.
Moreover, the property purchased by the parent in the name of the child (out of the known source of income) does not constitute a benami transaction. Exception (iii) to Definition under Section 2 (9) (A) takes care of this aspect.
2. Definitions. –
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9) "benami transaction" means,--
(A) a transaction or an arrangement--
(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and
(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration,
except when the property is held by--
(i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family;
(ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 (22 of 1996) and any other person as may be notified by the Central Government for this purpose;
(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;
(iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual;
Raj Kumar Makkad
(Expert) 10 May 2020
@ P. Venu Sir
You need not to take any pain to understand the provisions of Benami Transaction Prohibition Act as the same is neither has any relevance in the present case nor is the case of the author. The author is simply concerned is that his elder brother is not agreeing to sale his share like his two brothers and he asks the legal remedy to tackle this problem.
The sole reply is that the elder brother of the author cannot be pressurized legally to sale his share irrespective of the fact that the property standing in his name was purchased by his father when he was minor.
Rajendra K Goyal
(Expert) 10 May 2020
All the three brothers are owners of the property in equal share till mentioned otherwise in the sale deed.
All brothers are major.
Father can not sell the share of any said brother without his consent.
Either arrive at family settlement / take consent of elder to sell his share or leave his share with him.
P. Venu
(Expert) 10 May 2020
Mr. Makkad:
What is your problem if I take pains to correct the misunderstanding inherent in the earlier postings?
Kindly cooperate in upholding the integrity of this Platform.
