Hi, if there is no injuction or restraining order Passed by the court , you can sell the property .. What kind of civil suit is pending in court ?
Can I sell my undivided share in property which is sub judice (no stay/injunction)
Sir, 1. can i sell my undivided property share for which a suit for partition is pending for last 7 years but there is no stay/injunction for sale. 2. if another party is claiming more share and telling that my share is only 25 percent on the basis of a forged will but my share is one third in the property 3. No body ever challenged the will or probate by another party 4. Can another party get FIR registered for sale of undivided share
Asked 5 years ago in Property Law
Religion: Hindu
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11 Answers
Sir/Madam,
It is never advisable to interfere with the property for which a suit is pending or it may land you may be used against your favour.
It would be better for you to take proper legal guidelines by showing complete files of your case to an advocate so that you can take a right path to handle your issues. Vague answers will not give you the exact relief .
1)You are at liberty to sell your undivided share .
2)There is no injunction order restraining you from selling your share in property
3) you must disclose pending litigation on the suit property
4) since there is no stay you have not committed any offence
1. Yes the undivided share can be sold and the new owner can plead party in the suit.
2.in that case if validity of share is challenged first same has to be disclosed to buyer secondly selling share would be risky as if will proved valid seller can file case of cheating on you.
3.If will is not challanged you can sell only 25 percent share as per will.
4. If property sold is not rightly sold.
Dear Sir
Selling undecided share is not an offense. You can sell safely. Sub justice is a problem to little extent to the purchaser.
Firslty, as per the information mentioned in the present query, makes it clear that though you have been facing litigation so long, but not advised rightly till now.
Secondly, when there has been a suit for partition is pending that means that even nobody’s share has been settled till now then how can you say that what is your share.
Thirdly, let the other one say about their share as it for the court to decide as to what should be the share of all the litigants in the pending suit.
The proposed sale is of an as yet undetermined share and so it will need one brave buyer to buy at this stage. Nonetheless, considering someone is ready and willing to buy, there are two questions that arise. Here are those questions and their answers:
Can a co-owner of an immovable property transfer his share in that property?
The answer is yes.
Can a property or a share therein be sold during the pendency of a suit (including a partition suit) or proceeding?
The answer is yes. But Section 52 of the Transfer of Property Act makes it clear such a transfer shall not affect the rights of any other party to the case, unless the transfer is made with the permission of the court.
This means if you don’t take the court’s permission, the buyer will have to wait for the final result of your case and he will be bound by it.
If you end up selling more than the share that is finally allotted to you by the court, the sale will not be void. It will only be valid to the extent of the share that is eventually allotted to you. For example, where you sell 2 acres of land but the court ends up giving you just 1 acre, the sale will only be valid to for that 1 acre only.
No, there is no question of an FIR. This is a civil dispute.
I hope you have your answer. Follow-up questions welcome.
1. Yes, there is no legal impediment to sell undivided share of a co sharer in the joint property . However the buyer can not take physical possession of it till the partition is done by metes and bounds.
2. You sell what you think your rightful share in the property. In the partition suit only the actual share would be determined.
3. It is aright.
4. No criminal case or FIR lies for selling undivided share in the joint property by a co sharer.
1. You are free to sell your share in the undivided property if there is no injunction operative against it.
2. The sale will, however, be subject to the final decree of the court. The execution of sale deed at this stage will result in passing of title but the title will not crystallize into a free and marketable title unless the decree is passed.
3. Furthermore, if it is a dwelling house then the buyer cannot get the possession of the property unless he files a suit for partition against the other co-owners and is able to take separate possession of the share sold to him.
1. The sale of property especially the undivided share of property during the pendency of a partition suit i not legally valid
2. That you have to prove it before court since there is a litigation is pending.
3. You can challenge
4. It can be treated as contempt of court but no FIR can be registered.
