Hello All Learned Lawyers,
I sincerely request an opinion on the said subject,
One of my friends Mother has purchased a open Plot on the names of 2 Sons and 1 Daughter, the sale deed is on the all 3 names.
Now, when 2nd Son and Daughter are asking for partition, 1st son is objecting and not coming forward to either partition or sell the property and peacefully divide the shares.
Now, they are looking for a buyer and I want to buy the plot, so that it will be helpfull for the 2nd son and Daughter as they are under financial distress.
But,
1. Can I buy the shares of 2nd Son and Daughter? without concern of 1st son?
2. Can they sell their undivided share of the property to any perspective buyer
3. Will I (buyer) have to face any legal challenges from 1st son after purchase?
4. What other precautions I need to take if I want to buy their part of share of land.
The family is a christian family and the mother did not leave a Will and dead 12 years ago, till date 1st son has rented the plot for a school ground till corona lockdown and individually enjoying the rents all by himself. Now, the plot is empty and vacent.
Please help.
Regards,
Vinod Kumar
Can
The co-owner can sell or transfer his portion only when he has exclusive rights to that portion of the property. If the exclusive rights are not entitled to each co-owner, such transfer of rights cannot take place without the consent of other joint co-owners.
This is because according to Section 44 of the Transfer of Property Act every joint or co-owner has a proprietary right of the entire property and therefore, any sale has to be done with the consent of all co-owners involved.
Thus, in this case for instance, all the three (brothers and sister) share separate rights on three separate portions of the property and if one of them wants to sell his/her portion, he/she can sell his/her portion to a third person but, in case where the portions have not been identified separately, all three of them will have equal rights over the entire property and thereby, none of the three would be able to sell their share without the consent of the other two siblings (co-owners).
Now, let me inform you that the term 'Partition' implies division of property, owned jointly by more than one person and so it's better that the 2nd brother and sister in combination file a suit for partition.
There's no need to obtain consent from the 1st brother regarding the partition suit since, he's merely enjoying all the benefits as stated by you (i.e. by renting the plot for school ground).
This is the best option, cause this will lead the 1st son to enter into a mediation which will resolute the matter peacefully.
Hope it Helps!
Regards
Kevin M. Paul
