• Selling of non-agricultural land

My father (87 years old) got a share of his property (agricultural land) from his brothers in 1989. My grand father who died in 1954 did not leave any will and the property was divided through a partition deed. The partition deed was not registered but has been generally accepted by everyone. My father converted this agricultural land to non-agricultural land through the process of alienation (I am not sure about the spelling) to build a rice mill but could not do so. The extent of the land is about 52 Guntas and is worth about Rs. 2 crore as per the market price. I have two sisters and the property has to be divided amongst us as per the Will executed by my father. Since there are encroachment pressures on this land, my father wants to sell this property and divide the proceeds with the children. But the problem is one of my sisters is not cooperative. Since she is very rich and unmarried, she does not want other siblings to get anything. Hence my questions are as follows:

1. Can my father sell the land without the permission of his children?
2. Is it possible to file a caveat in court so no objection can be filed by my non-cooperative sister for selling the land ?
3. Is it possible for my father to unilaterally gift this property to all his children under the condition that they should sell the property and equally distribute the proceeds among themselves?
4. Can my father make a partition deed and equally distribute this property without the consent of his children?
Asked 1 year ago in Property Law from Bengaluru, Karnataka
Religion: Hindu

1. yes he can 

2. Yes you can file a caveat, so that in case your sister files any case you may go ahead and defend yourself on the first date itself. 

3. Gift deed can not be executed without the consent of the person who is receiving it. 

4. Yes, he can make a partition deed to divide the property amongst the legal heirs. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
17615 Answers
288 Consultations

5.0 on 5.0

Will is effective after father`s death. In his life time, he can change/revoke/replace the WILL. Non child have any say.

Yes, children consent is useless. No need of caveat.

Such gift deed not valid. Yes, but settlement deed not gift deed.

Yogendra Singh Rajawat
Advocate, Jaipur
18590 Answers
22 Consultations

4.6 on 5.0

1) father is at liberty to sell land without consent of his children 

 

2) no need to file any caveat 

 

3) father can execute gift deed in favour of his children 

 

4) for partition deed consent of children would be necessary 

Ajay Sethi
Advocate, Mumbai
74626 Answers
4464 Consultations

5.0 on 5.0

Your father can sell without consent of his children's. 

No need to file. 

You father can execute gift deed in favor of any child..

Consent required. 

Mohammed Mujeeb
Advocate, Hyderabad
15613 Answers
7 Consultations

4.5 on 5.0

1.yes he can.As got that property after the partition deed done by your grand father,it will be treated as your father's self acquired property and for self acquired property there is no need to take the consent of the children to sell that property.

 

2.I don't think there is any need to file a caveat petition.

 

3.when as a donor ,if you are donating the property as a  gift,there should be an acceptance from the donee also.IN your case,as one of your sister is not cooperative, i think your father can't gift the property to all your siblings.She may reject that gift deed,so obviously there will be no validity for that gift deed .

 

4.yes,he can make a partition deed to divide the property.

Seshukumar Kuchibhotla
Advocate, Hyderabad
57 Answers

Not rated

1. Your father has absolute right to sell the property, since in his hands, the property is considered as his self acquired property.

2. You can file a caveat in the competent Court so that you have have to be heard in the case, before any final decision in the matter.

3. Your father can gift the property equally to all his children and when once the gift deed is accepted and registered, your father will not have a say in the matter and it is upto the children to take a decision.

4. Yes, your father can equally distribute his property amongst his children by executing a registered partition deed, as per his sweet will and without consent of his children. But, however, the children have to affix their signatures on the deed. Instead of this, your father can execute a WILL bequeathing the entire property equally distributed amongst his children by metes and bounds.

 

 

 

 

 

Shashidhar S. Sastry
Advocate, Bangalore
2639 Answers
161 Consultations

5.0 on 5.0

1. If it's ancestral then he can't sell. 

2. Yes caveat can be filed. 

3. Yes gift deed can also be executed. 

4. consent is required. 

Prashant Nayak
Advocate, Mumbai
18708 Answers
34 Consultations

4.6 on 5.0

Dear Sir,

My answers are as follows:

1. Can my father sell the land without the permission of his children?

Ans: Yes, it is his absolute property inherited from his father and not ancestral property ( because it is no history of four last generations)

2. Is it possible to file a caveat in court so no objection can be filed by my non-cooperative sister for selling the land ?

Ans: Not necessary.

3.Is it possible for my father to unilaterally gift this property to all his children under the condition that they should sell the property and equally distribute the proceeds among themselves?

Ans: Yes, he has that right. But your unwilling sister may bring a stay and prolong the matter.

4.Can my father make a partition deed and equally distribute this property without the consent of his children?

Ans: During the life of your father he is the absolute owner.

Kishan Dutt Kalaskar
Advocate, Bengaluru
5298 Answers
172 Consultations

5.0 on 5.0

Than get it done when his mental capacity is perfect in presence of witnesses.

Yogendra Singh Rajawat
Advocate, Jaipur
18590 Answers
22 Consultations

4.6 on 5.0

You need certificate from doctor that father is mentally fit 

 

then only sale deed should be executed duly stamped and registered 

Ajay Sethi
Advocate, Mumbai
74626 Answers
4464 Consultations

5.0 on 5.0

1. Since your father has dementia, he is legally not entitled to execute any document, as he has to be healthy mentally to execute any document, including a WILL.

2. Anyway, after his intestate (without executing a WILL) death, your mother (if alive) and all the children are entitled to equal share in the property.

Shashidhar S. Sastry
Advocate, Bangalore
2639 Answers
161 Consultations

5.0 on 5.0

1. Can my father sell the land without the permission of his children?

The property as per your description is not the self acquired property of your father and hence your sisters, your mother (if she is alive) and you will be required to join in the
Sale of the property along with the grandchildren who are majors. If any of the grandchildren are minors permission of the civil court is necessary for the sale of a minors interest in the property
as the grandchildren are also entitled to a share under SECTION 8( 2)  OF THE HINDU MINORITY AND GUARDIANHSIP ACT 1956 R/W  27 OF THE GUARDIAN AND WARDS ACT 1890.

2. Is it possible to file a caveat in court so no objection can be filed by my non-cooperative sister for selling the land ?

There is no objection that can be filed by your sister in any court, unless you have sought any permission from the court for the sale of the property and hence a caveat will serve no purpose

3. Is it possible for my father to unilaterally gift this property to all his children under the condition that they should sell the property and equally distribute the proceeds among themselves?

Considering the fact that you father suffers from Alzheimers at this point, a gift at this point in time is not recommended, as it can be questioned on the basis of his state of mind and undue influence.

4. Can my father make a partition deed and equally distribute this property without the consent of his children?

Your father can only make a will, it can be questioned again on the basis of his state of mind, however your siblings and you are already entitled to a certain share in the property and registration
of a partition deed requires the presence of all of the parties to the deed. A partition Deed can entered amongst the beneficiaries if all are agreeable, however if one or more of the beneficiaries
are dissenting, then the best option would be to approach the jurisdictional Civil court and seek partition

Chandra Pal Singh
Advocate, Bangalore
13 Answers
3 Consultations

4.0 on 5.0

Yes he can execute a registered partition deed with a medical certificate of fitness from a doctor. 

Prashant Nayak
Advocate, Mumbai
18708 Answers
34 Consultations

4.6 on 5.0

If the person who is suffering from dementia or Alzheimer's can no longer make their own decisions. 

Mohammed Mujeeb
Advocate, Hyderabad
15613 Answers
7 Consultations

4.5 on 5.0

1. Yes father is absolute owner and he can sell the property or can gift or will it to you and your other sister.

2. Caveat can be filed.

3. Father can make will for same for gift acceptance is required. Father can make will then on same you can sale your share.

4. For that acceptance is required to be registered in sub-registrar office though he can make a settlement but wil is best option herein you will save stamp duty and purpose shall be solved. 

Shubham Jhajharia
Advocate, Ahmedabad
24365 Answers
96 Consultations

5.0 on 5.0

See get a doctor certificate for his fitness and then he can make a will and can either get it registered or notarised even if there is no will and you are only legal heirs on his demise you will get equal share and by same you can sake your individual share,

Shubham Jhajharia
Advocate, Ahmedabad
24365 Answers
96 Consultations

5.0 on 5.0

1. It is your father's own and absolute property hence he can sell it without taking  the consent from any children on this.  Your sister cannot object to this sale.

2. Court has nothing to do with the sale of this property, if at all you expect her to file an injunction suit then your father may file a caveat petition .

3. He can dispose his property in any  manner he may like it to be disposed.

 

4.  See the above answer, yes, your father can dispose the property in any manner he may desire and decide.

 

 

T Kalaiselvan
Advocate, Vellore
64580 Answers
836 Consultations

5.0 on 5.0

He can choose to take any positive action during the time when he is absolutely alright.

 

T Kalaiselvan
Advocate, Vellore
64580 Answers
836 Consultations

5.0 on 5.0

Dear sir

As the property is currently in the ownership of your father he has all the rights over the property and can equally distribute the money he gets from that among his children without consent of any of his child. But if you really want this to happen then you have to get this sale done ASAP as your father has decease which if become worst then there would be problem for you selling the property in future. 

Mohit Kapoor
Advocate, Rohtak
8007 Answers
2 Consultations

5.0 on 5.0

He can sell the land. make a mention from your father's end that he is aware of the fact that he has alzeimer but he is signing the document in his full senses 

Anilesh Tewari
Advocate, New Delhi
17615 Answers
288 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer