• Sale of unpartitioned HUF property

We 3 real sisters are the coparceners of our late father's HUF who expired in 1996. Our mother expired in 2001. Our only real brother is now the karta of the HUF. We have a HUF property purchased by of our farher comprising a vacant plot of 44000 sq ft in nagpur urban area and another plot of 34000 sq ft in the same area with a construction of approximately 25-30000 sq ft on it which has been let out. Can we 3 sisters sell our share in these two properties without any partition and without our brother's consent for this sale ? There hasn't been any partition of any kind amongst four of us till date.
Asked 2 years ago in Property Law from Amravati, Maharashtra
You may sell of the property subject to your share in it. it does not matter that the partition has not taken place. the person buying your share can seek a partition later on also. the question of consent is immaterial til the time you are selling your share in the property.

Only the coparceners possess the right to alienate the joint family property. The non-coparcener members of the family do not have this authority. The coparceners who have such competence may be classified as follows:
All coparceners as one body
Single coparcener in his personal capacity
The Karta, and
The father.
Tulika Prakash
Advocate, Gurgaon
113 Answers
66 Consultations
5.0 on 5.0
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
Ajay Sethi
Advocate, Mumbai
23339 Answers
1220 Consultations
5.0 on 5.0
Hi, in your case you have the share but it has to be decided by way of partition so you can sell your share only have have to execute the deed of partition or else you can't sell your share.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1) Section 44 of Transfer of Property Act runs as follows:- “Where one of the two or more co-owner of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or the common or part enjoyment of the house.

2)Only the coparceners possess the right to alienate the joint family property.

3)he transferee of a share of a dwelling house belonging to an undivided family is not entitled to joint possession,


4)uch transferee must sue for partition and separate possession of the undivided share transferred to him by the co-owner concerned;
Ajay Sethi
Advocate, Mumbai
23339 Answers
1220 Consultations
5.0 on 5.0
Yes.You can sell your shares without brother's consent.But,legally, you would not be able to transfer your individual shares in the undivided HUF property unless there has been any partition of any kind among four of you.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0
A. A Hindu has unrestricted power to alienate his personal property according to his own interest or a fortiori the interest of the other coparcener in joint family property. Only the coparceners possess the right to alienate the joint family property. The non-coparcener members of the family do not have this authority.

B. Where the sale of coparcenary property or an interest therein is within the authority of the alienor, it cannot be set aside and the Alinee gets certain rights in respect of that property. If the whole of the coparcenary property is sold, the position of the vendee is governed by the general law. He is full owner of the property, entitled to the possession thereof and to the ejectment of the members of the joint family.

C. A person can alienate joint family property only when there is some necessity, legal necessity or for the benefit of estate.

D. As a general rule, the alinee in a suit for partition to work out his right cannot claim that the specific properties that were alienated to him should be allotted to his share. But he has an equitable claim and ordinarily the court may assign that very property to his share if it could be done without injustice to other coparceners
B.T. Ravi
Advocate, Bangalore
736 Answers
30 Consultations
5.0 on 5.0
1. As per law, an adult can legally transfer exectly what he/she has,

2. Here you three sisters have undevided share of your father's property for which you can transfer the said undevided share of the property only to a third person,

3. The buyer will have the liability to get the property partitioned legally.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
1. Before selling the undevided share of the dwelling house to a third person, you shall have to offer the same to other coparcener,

2. it is called pre-emption.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
1. The property is HUF property, but none of you three sisters qualifies to be a coparcenor. You have not mentioned as to on what basis do you claim coparcenory rights.

2. You are governed by Hindu law, so you can sell your share in the undivided property of your deceased father only if your share has been demarcated. Absence of partition does not impair your right to execute a sale deed in favour of the buyer. You may have a fixed share in the property, but is it capable of identification? Which part of the property would you sell? Was a family settlement executed during the lifetime of your father or thereafter whereby and whereunder you and your 3 siblings agreed to possess a clearly delineated portion in the property? Since the property is undivided you have to first offer your respective shares to your brother. He has the right of pre-emption.

3. The alienee, when he goes to court for entering into possession of the property after effecting division, will be disentitled to seek a specific portion in the property commensurate to his share. The court will decide which portion is to be allotted to him. If the property is incapable of being divided by metes and bounds the prospective seller may back out,

4. The concept of alienation of joint family property on account of necessity or benefit of estate is not attracted to your case. Hence, you cannot alienate on this ground. Alienation of joint family property due to legal necessity or for the benefit of estate does not allow a coparcenor to pocket the sale consideration.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0

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