• Can anybody sell undivided ancestral property?

I have an ancestral property in the state of Bihar. Which is undivided between my father and my uncle.
The property is still on the name of my father grandfather. The property was divided between my grandfathers(among my grandfather brothers) on their mutual consent but that too is not registered or documented anywhere, but we don't have any problem there, The Problem is
1)Now my uncle is selling the half of the land without dividing it. i wanted to know can he sell the property without dividing or without our consent?We have a land adjacent to road which is quite valuable and it,s not yet divided, now can he sell his half of the land without dividing or without our consent?
2)In case if he can sell his half, what if he sell the half which is adjacent to road which is not fair as it's not yet divided?
3)As we are living in West Bengal now so we will not get to know immediately if he sells the land,later if we get to know than is there any limit that i need to claim it within 90 days of sell? 

4)we are asking him to divide the land but he is not ready to do it, so how can we force him to divide it and as the property is on my father grandfather name so will if we send some legal notice for division will it impact them too?
Asked 4 years ago in Property Law
Religion: Hindu

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15 Answers

Once partition has been done between grand father and his brothers it ceases to be ancestral property

2)your uncle can sell his undivided share in property

3) under section 44 of transfer of property act co owner can sell his share without consent of other co owners

4) you father can issue legal notice to brother fir division of property. If he refuses file partition suit for division of property by metes and bounds

5)seek injunction restraining sale of property by Uncle

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

1. Though there is no legal prohibition on selling undivided share of the co sharer in the joint property , the buyer without physical partition of the property can not take possession of the same.

2 However since such unilateral selling undivided share of a co sharer gives rise to scramble for possession, it is advisable not to allow the co sharer in doing so.

3. To stop such selling your father should immediately file a suit for partition and seek interim injunction so no co sharer before partition by metes and bounds can sell his undivided share.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1. The land has to be divided and clearly demarcated and then one is entitled to alienate their interest over the property.

2. It has to be divided between all legal heirs of the deceased to whom the property belongs. Selling the land over which he is not legally entitled is voidable and it can be challenged.

3. The law of limitation starts from the date of the aggrieved getting knowledge about the disputed property. Advise you to not to wait.

4. File a suit for partition after causing a legal notice.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

Dear Sir,

My answers are as follows:

1)Now my uncle is selling the half of the land without dividing it. i wanted to know can he sell the property without dividing or without our consent?We have a land adjacent to road which is quite valuable and it,s not yet divided, now can he sell his half of the land without dividing or without our consent?

Ans: You may file a suit for partition and interim application seeking a direction to your uncle not to sell the property.

2)In case if he can sell his half, what if he sell the half which is adjacent to road which is not fair as it's not yet divided?

Ans: If he sell during the pendency of the suit, you can take shelter under section 53A of TP Act and get cancel the said sale deed.

3)As we are living in West Bengal now so we will not get to know immediately if he sells the land,later if we get to know than is there any limit that i need to claim it within 90 days of sell?

Ans: If you file a suit immediately then he will be restrain from selling the property.

4)we are asking him to divide the land but he is not ready to do it, so how can we force him to divide it and as the property is on my father grandfather name so will if we send some legal notice for division will it impact them too?

Ans: If he is not agreeing for partition then Court will pass a decree of partition. The relevant rules are as follows:

=======================================================================================

PRAYER

WHEREFORE, the plaintiff prays that this Hon’ble Court may be pleased to pass an judgment and decree in favour of the plaintiff and against the defendants as follows.

a) Directing the defendants to effect partition of all the suit schedule properties by metes and bounds and put the plaintiff in possession of 1/5th share.

b) For grant of costs of the suit and such other relief’s as this Hon’ble Court may deems fit under the circumstances of this case, in the interest of justice and equity.

APPLICATION UNDER ORDER 39 RULE 1 & 2 READ WITH SECTION 151 OF CIVIL PROCEDURE CODE, 1908

For the reasons stated in the accompanying affidavit it is humbly prayed, to restrain the respondents from alienating the suit schedule properties, till the disposal of this appeal, in the interest of justice and equity.

Appellant No.2

Through

Advocate

======================================================================================

Section 53A in The Transfer of Property Act, 1882

1[53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. You will have to file a partition suit to claim your dad's share

2. If it's an ancestral property then your uncle cannot sell a portion without consent of other coparcenors

3. Your uncle and father have an undivided share in the Land. No party can claim exclusive ownership over a specific portion of the land

4. You need to issue a legal notice to your uncle warning him not to sell the land or any part of it

5. Also issue a public notice in newspapers informing public that no one should deal with your uncle for buying half share in land as it is an ancestral property

6. If the part of the land is sold without your father's consent then he can file a suit within 3 years of coming to know that the plot was illegally sold

7. You can file partition suit and file an urgent application to court for refraining your uncle from creating third party rights over the land. Obtain a stay

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

The sale of property without the partition of the property is a possibility the best way to stop him to sell the land before the partition is done you have to file a partition suit in the Civil Court. If a partition suit is pending in the Civil Court till the decision of the civil suit he cannot be able to sell the property and will be forced to go for partition first

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Your question: now can he sell his half of the land without dividing or without our consent?

Answer: No, he cannot sell the land without first dividing it;

Your question: In case if he can sell his half, what if he sell the half which is adjacent to road which is not fair as it's not yet divided?

Answer: No he still cannot sell half, because he may actually hold a share less than half;

Your question: As we are living in West Bengal now so we will not get to know immediately if he sells the land,later if we get to know than is there any limit that i need to claim it within 90 days of sell?

Answer: You should engage a lawyer and get a stay order on the sale of that land;

Your question: we are asking him to divide the land but he is not ready to do it, so how can we force him to divide it and as the property is on my father grandfather name so will if we send some legal notice for division will it impact them too?

Answer:

This is my advise to you:

1. You must send your uncle the legal notice;

2. You must then go to court and file a partition suit;

3. Before all of that collect all the evidences in your favour.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

See your uncle can sell his undivided share but he cannot specify the portion of the land. For specific portion in his share a partition is required by consent of all heirs or by decree of the court. The rule of partition is that all heirs get equal value of property so he cannot divide it without your consent and sell a specific area of the land.

1) He can sell his share but he cannot specify in sell deed which portion of land he is selling as there is no partition of the property, So he cannot alone sell the land adjacent to road, file a partition suit before the jurisdictional civil court for the partition of the property and seek interim stay on the transfer of any share by uncle.

2) See first of all it would not be a valid sale you can challenge same within the period of the limitation.

Issue your uncle a legal notice calling him for partition of land and to refrain from selling the property otherwise he shall be liable for prosecution.

3) See the limitation in this case is 3 years but it will be better that file suit of partition now only with an stay application as after sell the issue will become complicated as third party interest will be created so better to partition the property beforehand . If your uncle agree you all can carry out a partition by mutual consent and can make partition deed diving property by meats and bounds.

4)Partition suit can be filed all the interested legal heirs shall be made party further is father grandfather alive??

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

- No, ancestral property cannot be sold without consent of successors , even if , the successors are not major.

- If , the successors are minor , their consent through the court is mandatory.

- If, the property sold without consent then it can be reclaimed.

Hence, it is very clear that your uncle cannot sell a portion without consent of other successors, because as per law , you father also has his undivided share in the ancestral property.

Further , none can claim his exclusive ownership of the land without a partition.

Better, issue a legal notice to your uncle on behalf of your father , thereby ask a share in the property and further warn him not to dispose the property against the wishes of your father.Further also narrate ,that if he is going to do any act against the law of the land, he will have to face the consequences of legal battling including the purchaser as legally that sale will be not completed in the eye of law.

If, within 15 days of time , there is no response from your uncle , then you should file a suit for partition and Injunction.

Court will pass order against your uncle for restraining to sell the property on the first date of hearing.

Good luck,

Mohammed Shahzad
Advocate, Delhi
9885 Answers
121 Consultations

5.0 on 5.0

1. No he cannot sell that. File Suit for Permanent Injunction to make sure of that.

2. No, you will have to file A suit for Cancellation in case the Sale Deed is executed.

3. You might not get to know in that regard. In case you want to know the present Status, Check up with Local SDM office and see accordingly.

Anshul Chowdhary
Advocate, New Delhi
19 Answers

Not rated

1. If he has a rightful share in the proeprty and the buyer is ready to buy his undivided share 9n the proeprty, your paternal uncle can sell his undivided share in the proeprty without making any demarcation untils there is a proper partition.

The buyer can later make partition with his cosharer.

2. He cannot sell a particular portion of the property, he can blindly sell the undivided share till it is not partitioned between them.

3. You can file a partition suit with an application for injunction seeking to restrain him from alienating the proeprty or encumbering it in any manner till the disposal of the partition suit.

4. You can file a partition suit and follow further procedures as explained above.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

Sir, undivided property can be sold up-to his share. I mean to say that no one can sell the entire properties

Jaswant Singh
Advocate, Gurugram
926 Answers
2 Consultations

4.8 on 5.0

Firslty, there is no right which has been given to any coparcener to alienate the property without even permission of the others.

Secondly, you can very well stop him by filing a suit for permanent and temporary injunction to not to sell the property till the time of disposal of the case.

Thirdly, you should also file a suit for division in the property, but before that take the succession certificate/legal heir to show you interest plus right in the property.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

1) He can sell has share of land. Here you want to protect your piece of land so that won't get disturb.

2) Do not wait for 90 days you can make big notice board that can be read from 60 feet distance. That this property belongs to you and any trespassers will be booked for legal action and put survey number, land area and your name.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

not without partition.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

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