Selling undivided share of property
swaminathan
(Querist) 24 March 2013
This query is : Resolved
I own a 50% share in a residential house together with land in chennai.My brother is the co-owner with the other 50%.It is a old house and my brother refuses any kind of developement of the same.There is no specific partion of the property.Now,there is an offer from a friend to buy my undivided share.
can I sell the same without my brothers consent.
Advocate M.Bhadra
(Expert) 24 March 2013
Yes,you can follow the provision of laws:---
Who Is A Co-Owner ?
Ownership consists of innumerable number of claims, liberties, powers with regard to the thing owned. Ownership is of different kinds. There are absolute and limited, sole ownership, co-ownership, vested ownership, contingent ownership, corporeal, incorporeal. When a person owns a property in one time it is called sole ownership, but if the property is owned by more than one person then it is called joint ownership. By means of partition one can have co-ownership changed into sole ownership.
The expression co-owner is wide enough to include all kinds of ownership such as joint tenancy, Tenancy in common, Coparcenary, membership of undivided Hindu family, etc. The very fact of the reference to the property that the parties have certain shares, indicates that they are co-owners.
In Indian Law a co-owner is entitled to three essentials of ownership-
# Right to possession
# Right to enjoy
# Right to dispose
Therefore, if a co-owner is deprived of his property, he has a right to be put back in possession. Such a co-owner has an interest in every portion of the property and has a right irrespective of his quantity of share, to be in possession jointly with others. This is also called joint-ownership.
When Is A Co-Owner Legally Competent To Make A Transfer ?
Section 7 of the Transfer of Property Act, 1882 provides that every person competent to contract i.e. a major and of sound mind or is not disqualified by law for contracting. Therefore even the interest of a co-owner or co-sharer can be sold, mortgaged, leased to another co-sharer or to a stranger. The fact that the partition has not taken place by metes and bounds , does not stand in the way of the interest of a co-owner.
According to the law prevailing in some areas, a coparcener of a Hindu Joint Family can alienate his share in the Joint Family Property for consideration. Such a coparcener is a legally competent person. But in some cases of Mitakshara coparcenary, the consent of other coparceners is required before any such transfer.
V R SHROFF
(Expert) 24 March 2013
Best is go for Partition suit, Then sell your divided part.
Otherwise undivided part , if sold, will have possession problem. , as it is dwelling house.
Raj Kumar Makkad
(Expert) 24 March 2013
You can legally sale your undivided share without any legal hurdle but if your brother goes against you not to provide any specific possession to the buyer then it may create problem for you and buyer so better to first go for partition and if your friend is ready to face all such eventualities then go ahead without any hitch.
