Registry of stubborn heir

MJ (Querist) 31 August 2011 This query is : Resolved
We have a property in Ludhiana which is in my father's name. He has 3 sons ABC and 1 daughter D.
After father expired, the registry of the property was done in the name of 2 sons A and B. D and C lived in US and did not show any interest.
Now A, B and D want to sell the property and C has taken interest in the poperty and does not want to sell.
So it was decided that A and B will sell only A,B and D's share and divide equally and leave C's share as it is unsold.

But buyers want C and D to be included in the name of the property and then proceed.
As informed to us that C will now have to file a case and then his name will have to be included. But he is not responding to the process hoping that the whole property will not be sold.
D is cooperative.
Pls advice.

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Raj Kumar Makkad (Expert) 31 August 2011
As the property is not legally partitioned among all legal heirs of your deceased father so share of C is not separately left ass per partition. In view of this legal position, every co-sharer has equal share in every inch of joint property. Buyer is well within his right to involve C for the proposed sell as he has also a share therein.

In the given facts, it is better for you to initiate partition proceedings and serve a prior notice to your brother so that he may come and may take part in the partition proceedings. Even if he do not move, let the partition proceeding decided ex-parte against him resulting thereby his share shall be legally separated and then there shall be no need of him for the sell of shares of AB & D.

prabhakar singh (Expert) 31 August 2011
The buyers are right being under duty of due diligence of inquiry of title of sellers.

The property is owned jointly by all 4 ABC(sons)D(daughter)But mutated only name of
only A&B,But a mutation can not take away rights of C or D.

If A and B does not want to plead complete ouster of C or D and D is cooperative, then a suit of injunction on the pleading of an oral partition of property in question allocating separately share of each of the 4 joint holders can be filed by A and B against C and D,where in D would admit the partition and allocation of her separate share; while the suit shall proceed exparte against C,but there would be share 1/4th admitted in the plaint,therefore C would not seek cancellation of exparte decree and even if he would seek,1/4 th already admitted in plaint and allocated in plaint as his exclusive share in site plan of the plaint
as well as map prepared on scale in suit proceedings,there would be no chance to set aside,unless his exact 1/4 not allotted.

Doing this way the court will not be hesitant as A&B would not be claiming against the interest of C or D rather would be foregoing their right,if any,under exclusive mutation, hence no play of fraud on court could be pleaded against the injunction decree so passed by court.

And after the passing of the decree ABD can sale either by a joint sale deed or by separate one(s).