Resale of ancestral property
10 months ago
We have an ancestral property that needs to be shared. One of our brother is willing to but at price much lesser than market rate. Other stake holders are also willing to sell it to him with a condition that he should not resell it during his life time. His children may sell the property on attaining adulthood. Can we put this clause during sale of the property now? If yes, should the clause be mentioned in sale deed or sale agreement? Please advise
In case of ancestral property, a coparcener can not dispose of his share without the consent of other coparceners/heirs who got their right over the property by birth. So if you want to sell or transfer your share in the said ancestral property, the consent of other coparceners/legal heirs before you proceed for the sale/transfer of title of the property to others even you cannot put any such condition in the deed of transfer/sell
A.Dear Sir,
You cannot put such conditions but you can make absolute sale deed if not comfortable then sell the same to strangers at the market value after issuing notice to your brother.
Right To Joint Possession And Right of Pre-emption
The right of 'pre-emption' is given to the owner of immovable property to acquire another immovable property that has been sold to some other person. It is the purchase by one person before all others. ... The objective behind this right is to maintain privacy and prevent strangers to come in neighbour or in a family.
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. [32]
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 BhauLaxman v. BudhaManku [33] 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 [34] . 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.