Ms. X was given the second floor of a two-floor building on 13 cents of land per partition deed. Her sister was given the ground floor and the land on which the building sits. The cellar (within the foundation) belongs to Ms. X but the land on which it sits belongs to her sister. The terrace is jointly owned by both sisters. Now Ms. X is trying to sell her portion but apparently there is no land rights (no undivided share of land in the partition deed executed in the early 60s). Is there any recourse at all or does her share have to be written off as not having any value at all? Can courts assign undivided share of land if partition deed does not? Please advise. Property is in Kerala.
1) If Ms.X has share in the building than automatically she has share in land also, once the building is constructed on land its sharing ratio of land gets converted into FSI and distributed accordingly the per sq ft wise.
2) Need to check all property papers to provide you exact ratio for Ms X.
The land is clearly written in the name of Ms. X's sister. There is no ambiquity in the original partition deed. Ms. X can only access the back entrance to take the stairs up to the second floor. This makes it difficult for her to sell her share to an outsider for a fair price.
The 13 cents of land given to X first needs to demarcated and identified and a boundary needs to be made covering this land
Only then would it be said that the above land is duly divided or partitioned by metes and bounds
However there is no stopping against X to sell the 2nd floor allotted to her and also her rights in the 13cents of land as and when identified in future
X has in praesenti rights over the undivided land ie 13 cents and would obviously have future rights over the divided land, as and when divided
So X can sell second floor alongwith in praesenti rights in undivided share of land and alongwith future rights to the divided land corresponding to the area of undivided land presently held
In essence the buyer of X will have a right in future to obtain partition of land from X's sister
Ms X has 2nd floor on her name registered, than she has that much share of land.
If Ms X has 500 sq ft flat on 2nd floor, so accordingly to this ratio she has share in land as well.
Courts cannot assign undivided share in land if partition deed clearly mentions that sister woukd be ownerof land
X can only sell cellar , 2 nd floor of the building
Mrs X has no share in land as per partition deed
the said deed is final and binding on the parties as no legal proceedings were taken to challenge un equal distribution done 50 years back
See now court cannot assign the undivided share.Since partition deed is on record it cannot be challanged now X has only right to sell the floor which it has right on.
So in the case only the respective floor can be sold with right of way no share undivided can be sold now.
1. Non-Partitioned family property CANNOT be sold under any circumstances to outsiders, in any way. However they can be acquired /gifted /purchased by other Co-Joint-Family-Owners themselves.
2. Property partition proceedings and order and demarcation in the revenue records is mandatory to sell joint properties.
You can't sell that as it's not your property. But the access can be taken as per easement Act
1. The owner of the all the floors will automatically own the undivided proportionate share of the land on which the building has been construecetd.
2. Even if it has not been so mentioned in the said partition deed, the owner of the 1st floor along wioth the owner of the other floor will own tthe undivided proportionate share of the land on which the building has been constructed.
1. It may be that she shall have to enter in to her floor through the back entrance as per the partition deed.
2. However, she will get the proportionate share of the land on which the building has been constrcuted and not any extra land.
3. In other words, if the building collapses, she will have right on her proportionate share on just the land on which the building was constructed and not on any extar land adjoining the said building.
Ms. X can sell her floor of property without any problem.
Is there any particular mention about the land to belong to the other shareholder?
A house property cannot remain on air, hence the land on which it is constructed also are to be taken into account for the purpose of UDS.
You dont get confused about this, in fact you can obtain a legal opinion from an experienced lawyer in the local for moving on.
If X has been made entitled to have an access to her property, what else does she need to have any rights over the land on which the structure is built.
The question about the cost of the flat or under value due to the back entrance is a practical problem which have to be sorted out locally.