Validity of the agreement
7 months ago
Mother owns a three storied house consisting two fglats in each floor. She distributed each flat to her sons and daughters who afterwards registered the flats in their own name. After the mother’s death all sons and daughters made an agreement not to sell or rent their flat to any third party. Now one daughter wants to sell her flat can she do it? Please advise.
Here are some key considerations:
Terms of the Agreement: The first step is to review the terms and conditions of the agreement made among the siblings. If the agreement explicitly prohibits the sale of the flats to third parties, the daughter may be bound by the terms of the agreement. The wording and enforceability of the agreement will be critical.
Legal Ownership: It's essential to determine the legal ownership of the flats. If the daughter legally owns the flat in her name, she may have the right to sell her property. However, if there are any legal restrictions imposed by the agreement or any applicable local laws, these should be considered.
Legal Advice: Seek legal advice from a property lawyer who specializes in real estate matters. The lawyer can review the agreement, assess its enforceability, and provide guidance on whether the daughter can proceed with the sale.
Consent of Other Siblings: Depending on the terms of the agreement, the consent of the other siblings may be required for the sale to proceed. If the agreement stipulates that all siblings must agree to any sale, the daughter may need to obtain their consent.
Mediation or Resolution: If there are disputes or disagreements among the siblings regarding the sale, they may consider mediation or negotiation to reach a resolution. In some cases, a family settlement or agreement to amend the existing agreement may be explored.
Legal Remedies: If the daughter proceeds with the sale against the terms of the agreement and without the required consent, the other siblings may have legal remedies available to enforce the agreement or challenge the sale.
Local Laws: Property laws, including those related to joint ownership, agreements, and family settlements, can vary by jurisdiction. Local laws may impact the enforceability of the agreement and the daughter's ability to sell the flat.
It is crucial for the daughter to consult with a qualified property lawyer who can provide specific legal advice based on the agreement's terms, the relevant laws in your jurisdiction, and the specific circumstances of the case.
Thank you.
A daughter can alienate her own share in the property which is individually owned by other family members even if she is a signatory of a Family Settlement Agreement filing a civil suit for partition. The most common way to express the intention to separate himself/herself from the joint family property is by filing a partition suit in Court. As soon as the plaintiff expresses this unequivocal intention to get separated from the property in court, his/her status in the joint family property comes to an end. In fact, there is no apparent restriction in place that restricts anyone from filing a suit for partition in India. A Family Settlement Agreement puts an end to disputes among the members of the family and is not a transfer. It is also not a creation of interest. In a family settlement agreement, each party takes a share in the property by virtue of an independent title which is in fact admitted by other parties. The memorandum of settlement does not itself partition the properties but only records the same as an aid of memory. A partition deed requires compulsory registration as it creates, assigns, limits, or extinguishes rights or titles in a property whereas a Memorandum of Family Settlement (MOFS) does not require compulsory registration.
A.Dear Sir,
There is a law which is described below under which the other siblings has a right to purchase the same in preference to strangers.
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.
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