Dear Sir A residential property is a self acquired property of my grandfather. He made a registered will in which he has mentioned that this property will equally belongs to all his legal heirs i.e. his one son and two daughter. This property is lease hold property and partition has not been done Now two co-onwer as per will made an agreement to sell their 2/3 undivided share in that house. Heading of Agreement is "Agreement to transfer of lease hold rights without possession" where as in content it is mentioned that seller will give possession of 2/3 share in this property. Can we give the possession of 2/3 undivided share in said property. As per agreement last date of execution was 02.01.19 but one co-owner has extended it to 12.01.19. Buyer has also given some money on 20.01.19. There was forfeit of token money clause in this agreement if payment was not done by 02.01.19 Now please also clear that can one co-owner withdraw himself from this deal
you need permission from lessor to create third party rights on the property
2) whether consent of lessor has been obtained or not ?
3) if purchaser has failed to make payment within stipulated period time can be extended with consent of parties
4)you can with draw from deal if payment not made within stipulated period
Dear Client,
Co owner can sell their share but Without partition, share of a dwelling-house belonging to an undivided family, do not entitle to purchaser to joint possession or other common or part enjoyment of the house. And prior right to purchase vest with co owner.
Extension on one co owner do not bound the other co owner to continue with agreement on default of purchaser.
See to sell a lease hold property NOC from lessor is requiere future the right of sell should be there is the please deed.
Further in case the buyer has failed to make payment in the stipulated time the agreement can be cancelled the advance as per the clause of agreement can be forefieted.
1. Lessor is DDA and permission has not been sought from him 2. Only on co-owner has extended that date but some payment has been received both the co-owner after this date i.e. 20.01.19
Most of the properties in India are lease hold, no permission require. And if both have accepted the payment than it`s deemed acceptance of extension.
whether there is any clause in lease agreement that prior permission is necessary of lessor to create third party rights on the property
2) if you have received payment after last due date time period has been extended by both the co owners
1) a co-owner can sell his portion to whom he/she chooses.
2) lease hold property noc require from lessor.
3) you can cancel the agreement to sell as the purchaser has failed to comply with the terms and condition of the agreement.
If partition not done such possession cannot be done without consent of legal heirs. You can execute back partition deed between the legal heirs and Register it
A property which is undivided can not be sold. First a partition suit will have to be field and as and when the partition suit is decreed then only the property can be sold
Without DDA permission also the said can not be done.
Challenge the validity of the sale deed before the Court.
Regards
if the co-owner withdraws from the deal, then the buyer can enforce specific performance of contract against him
as the last date of execution was 2.1.19, but the buyer has made payment on 20.1.19 or thereafter, it means that buyer by implication has agreed for extension of contract
now it is for the buyer to enforce the contract against the sellers or against the co-owner seller who wants to back out
the co-owner seller can back out only if there is a breach of contract by the buyer as stated in the contract
also possession of 2/3rd undivided share cannot be given unless the property is divided and partitioned by metes and bound
but if the buyer only wishes to acquire 2/3rd rights without the possession, then its totally upto him
1. See required permission need to be sought.
2. See if both co-owner has received the amount there by they have given consent on extending date as no notice by other co-owner is given so in this situation now it will not be right to cancel as buyer can go for specific performance.
Actually it is a leasehold property and not freehold property, hence two beneficiaries alone cannot sell their undivided share to a third person.
The agreement for sale cannot be enforced in court of law even if one of the beneficiaries withdraw their consent.
The main difference is that, with a leasehold property, even though you've bought the property and have a mortgage bill to show for it every month, you still have a landlord: the freeholder. ... Generally buying and selling freehold property is less stressful than doing so with a leasehold property.
1. Thus it is illegal and invalid to sell the same without permission or NOC or conversion.
2. The payment itself for this agreement is not acceptable until the marketable title to sell the property is clear.