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3 years ago
We have a house of 2 floors - Ground Floor and 1st Floor. My uncle and his family stay in ground floor and I along with my parents stay in 1st floor. We also have a terrace on top of 1st floor.
Q1 - > Can you tell me legally, the terrace belongs to whom - my uncle or my father ?
Q2-> Also, our grandfather prepared memorandum of partition deed and the enrollment of names among our uncles and my father is yet to be done by Tehsildar. In case of agreement for allocation of properties, is there any way to sell the property as few of the areas of land are common to my uncle and father whereas few others are privately hold ? Are there any legal aspects on the basis of which sale of our properties will be done?
A.If the areas are common then without the consent of your father cannot be sold and your father has following right. If my answer is helpful to you then please give my FIVE STAR
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Right To Joint Possession And Right of Pre-emption
There are two views in this matter. The purchaser has no right to joint possession of the property compelling partition. He can sue all other coparceners for that purpose.
If the vendee has obtained possession, the other coparceners can get him ejected by a suit. All that the purchaser is entitled to in such a suit is a declaration that he is entitled to the share of the coparcener against whom the decree has been passed.
The Bombay High Court has a different approach. It gives some discretion to the court in the matter of ejectment of a stranger purchaser. In Bhau Laxman v. Budha Manku the court laid down three rules:
First, if a purchaser stranger of the undivided interest of a coparcener in a joint family property is out of possession, he should not be given joint possession with the other coparceners but should be left to his remedy of a suit for partition.
Secondly, on the other hand if the purchaser has obtained possession of the property, a coparcener who has been excluded may obtain joint possession with the purchaser.
Thirdly, the purchaser in possession need not be ejected in a suit for recovery of possession brought by an excluded coparcener. The matter should be decided on merits because he is not a trespasser. In a suitable case he may be declared to be entitled to hold (pending partition) as a tenant-in-common with other coparceners.
The issue came to be discussed by Supreme Court in M.V.S. Manikayala Rao v. M. Narasimhaswami . The court held that it is well settled that a purchaser in such a case cannot claim to be put in joint possession with the other coparceners. He has only the right to ask for general partition of the joint property.
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Right To Joint Possession And Right of Pre-emption
There are two views in this matter. The purchaser has no right to joint possession of the property compelling partition. He can sue all other coparceners for that purpose.
If the vendee has obtained possession, the other coparceners can get him ejected by a suit. All that the purchaser is entitled to in such a suit is a declaration that he is entitled to the share of the coparcener against whom the decree has been passed.
The Bombay High Court has a different approach. It gives some discretion to the court in the matter of ejectment of a stranger purchaser. In Bhau Laxman v. Budha Manku the court laid down three rules:
First, if a purchaser stranger of the undivided interest of a coparcener in a joint family property is out of possession, he should not be given joint possession with the other coparceners but should be left to his remedy of a suit for partition.
Secondly, on the other hand if the purchaser has obtained possession of the property, a coparcener who has been excluded may obtain joint possession with the purchaser.
Thirdly, the purchaser in possession need not be ejected in a suit for recovery of possession brought by an excluded coparcener. The matter should be decided on merits because he is not a trespasser. In a suitable case he may be declared to be entitled to hold (pending partition) as a tenant-in-common with other coparceners.
The issue came to be discussed by Supreme Court in M.V.S. Manikayala Rao v. M. Narasimhaswami . The court held that it is well settled that a purchaser in such a case cannot claim to be put in joint possession with the other coparceners. He has only the right to ask for general partition of the joint property.
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A.A-1 the terrace belongs to BOTH uncle and your father as it comes in common passage areas.
A-2 If you want to sell the property you will have to sell it jointly
or
in the other case it can be done that the market value of the property can be taken into consideration from open market and 50% of the share in cash/ Cheque can be given to the other party who wishes to exit... & a Release deed can be made.
If you realize my professional skills, the time & efforts put in by me needs to be truly appreciated, and then Please “CLICK MY LIKES/ THUMBS UP/GIFT” button shown below this reply format & also CLICK/ WRITE a “REVIEW” in 5 star as I have answered your query in detail. Hope this information is useful
ADV. ANISH PALKAR (High Court)
A-2 If you want to sell the property you will have to sell it jointly
or
in the other case it can be done that the market value of the property can be taken into consideration from open market and 50% of the share in cash/ Cheque can be given to the other party who wishes to exit... & a Release deed can be made.
If you realize my professional skills, the time & efforts put in by me needs to be truly appreciated, and then Please “CLICK MY LIKES/ THUMBS UP/GIFT” button shown below this reply format & also CLICK/ WRITE a “REVIEW” in 5 star as I have answered your query in detail. Hope this information is useful
ADV. ANISH PALKAR (High Court)
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Sourav Ghosh
Responded 3 years ago
A.Make a family settlement deed
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