• Can anybody sell undivided ancestral property

I have an ancestral property in the state of Bihar. Which is undivided between me and my elder brother. My elder brother residing in jharkhand and i residing in west Bengal. Now just now i wanted to know from one of my neighbour, my elder brother is sold out half of the property to one of  our neighbour without taking my witness or mutual decision.
Please guide me how we go forward on this case. Since I never face any court case, and not getting any satisfied answer to my legal advisor. Please guide me properly under what section and against whom I file the suite. And what is there implication. Can I take any legal step from kolkata, either I have to visit and filed the case from there only.
Asked 3 years ago in Property Law from 9903398189, Bihar
1. It appears that the land is not divided in physical form as yet.
2. IUf that is so then the sale though is valid if your brother has not sold more area of land than what he is entitled to but may amount to complications as you may claim the portion he has sold.
3. In future to ensure that he may not sold more rea of land or other properties  you should file a suit for partition and injunction at once.
4.If the area left for you is not less than to what you are entitled to then put boundary on the land.
5. If any of the properties of your father situated in Kolkata then you may file suit here . Else Bihar is the place of suing.
Devajyoti Barman
Advocate, Kolkata
12525 Answers
160 Consultations

5.0 on 5.0

1) you should first take search in sub regsitrar office in Bihar and obtain copy of sale deed executed by your brother . 

2) under 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.

 The transferee steps into the shoes of his transferor ie the co-owner, and is clothed with all the rights and becomes subject to all the liabilities of his transferor.

3) the purchaser of your brother share will issue you legal notice for demarcation of the property . 

4) in the event you do not respond suit for partition will be filed by him for division of property by metes and bounds
Ajay Sethi
Advocate, Mumbai
44279 Answers
2572 Consultations

5.0 on 5.0

 you should send a legal notice to your brother for partition of the total property , and alleging of alienating  the property without your consent.Your brother should have informed you and taken your consent before entering into the contract since it is an undivided ancestral/parental property.

You have to now Seek the intervention oft he court ,bring or add the purchaser  also as a party in the suit.since the partition  was not done in metes and bounds, the demarcation of the property sold has to be objected despite  your brother's  legal rights in the property.

You should  to file a suit for partition and along with an injunction in the civil court of the area where the property lies.Engage an advocate from that area who handles  civil matters
Thresiamma G. Mathew
Advocate, Mumbai
1510 Answers
134 Consultations

5.0 on 5.0

Hi, as the property is joint family property your brother can not sold the  property without your consent and sale become void.

2. File a suit for partition of your 1/2 share to the entire property and also made subsequent purchaser as party defendant so that you will get back your 1/2 share.
Pradeep Bharathipura
Advocate, Bangalore
4528 Answers
202 Consultations

4.3 on 5.0

1. Has your brother sold his undemarcated and undivided 50% share of the said property?

2. If yes, then the said sell is perfectly balid,

3. The buyer shall have to file a partition suit against you if no partition deed is executed and registered by you and the said buyer,

4. If your brother has arbitraily demarcated and divided the property and sold his share duly mentioning it in the schedule of the property, then you shall have to file a partition suit and challenge the said sale deed executed and registered by you brother in favour of his buyer.
Krishna Kishore Ganguly
Advocate, Kolkata
18135 Answers
438 Consultations

5.0 on 5.0


1) the property being ancestral and undivided ought to have not been sold without consulting or taking your consent as you are 50% share holder of the entire property and unless it was divided there was no way to determine which part belonged to who.

2) As the sale has already taken place, do get a search done to get the exact extent of the property sold and get an injunction from the court against your brother further alienation the property or creating any third party rights.

3) Do file a suit for partition in the court in Bihar in whose jurisdiction the property lies. You will need to go there to file the suit and will need to visit court only during evidence stage.While moving the suit for partition you can also challenge the sale made by your brother as he did so while his portion of share was not demarcated when he made the sale.
S J Mathew
Advocate, Mumbai
2229 Answers
110 Consultations

5.0 on 5.0

1. From your query it is apparent that your brother has sold the land despite the fact that it is not divided or demarcated yet. 

2. If he had a 50% share in the ancestral land then the sale made by him does not suffer from any illegality, albeit he could not have sold your share in the land.

3. Your elder brother was not required to have your signature as a witness on the sale deed which he executed in favour of the buyer. The title has passed to the buyer. 

4. Since the land is not demarcated it has to be divided before the buyer can demarcate it.

5. You have the right to challenge the sale made by your brother only if the land has been demarcated to your prejudice by your brother and then sold.
Ashish Davessar
Advocate, Jaipur
22966 Answers
631 Consultations

5.0 on 5.0

Your elder brother can sell his half share in the ancestral property to anybody he likes without your consent and signature.And to claim your share in the said property you can approach concerned civil court in filing suit for partition and separate possession.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations

3.6 on 5.0

if a legal heir sold out more than his share in the ancestral property then he committed offence and it is punishable under sec 406 IPC and also a civil accrued against him because alienation of property beyond permissiable limit is ultra virus and it is liable to be set aside. you should file suit for permanent injunction and cancellation of sale in the district where property is situated.
Shivendra Pratap Singh
Advocate, Lucknow
4973 Answers
78 Consultations

4.9 on 5.0

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