• Joint owner and legal heir dispute

We have a property in Mumbai which was purchased  in dec 2011in a registered society jointly in the name of myself, my mother and my mother's aunt (my grandmother's eldest sister). My mom's aunt expired in jan 2012 without a will. She has 3 sons, the eldest has passed away and is survived by his wife and 2 children. The flat is currently vacant.

1) Do they have a right in the said property? (I assume they can claim a share in the 33% of my mom's aunt but I had read somewhere about tenancy in common and joint tenancy, please clarify)

2) All the people mentioned above have agreed to sell the property and divide the proceeds EXCEPT the youngest son of my mother's aunt to prevent the sale. The society is therefore refusing to grant NOC for sale. We have tried contacting him but to no avail. We have put a public notice in the newspapers regarding the same. As he continues to ignore, what is the legal procedure to sell the flat without his NOC?

3) Can the society refuse NOC for lease. Do I need NOC of any of the heirs of the deceased for lease ?

4) Can we (I and my mom) sell off our 66% share. If yes how ? Please advise any way to get rid of the property and getting our share knowing that one of the sons isn't responding at all.
Asked 1 year ago in Property Law from Mumbai, Maharashtra
Religion: Christian
1) your grand aunt has 1/3rd share in flat . 

2) on her demise her 3 sons would inherit her  share in flat . the share of predeceased son would be inherited by his wife and 2 children 

3) you need consent of younger son to sell the flat as he is a legal heir of your grand aunt 

4) society will not furnish NOC in absence of his consent

5) for lease of flat you need consent of all legal heirs 

6) any purchaser will want vacant possession of flat . if your aunt legal heirs dont give consent you would find it difficult to find a buyer for the flat 

7)best option is to file suit for partition of flat for division of flat by metes and bounds . if it is not possible flat would be directed to be sold 
Ajay Sethi
Advocate, Mumbai
23153 Answers
1216 Consultations
5.0 on 5.0
Hi,
Your aunt's children (deceased son's family as well as living children) are equal recipient of 50% of the property since the property was in joint name. The first thing you need to do is obtain heirship certificate from the court in the name of all the legal heirs (your mother's and aunt's). After this only you'll be able to sell the property. Rest for procedure, contact a local lawyer.
Rajni Sinha
Advocate, Mumbai
273 Answers
25 Consultations
4.8 on 5.0
1. The aunt of your mother who was one of the co-owners with 1/3rd share died without a will. So her share in the property now vests in her 3 sons. Tenancy in common is not applicable here as the share of your mom's aunt is capable of being identified.

2. Unless all the surviving heirs of your mother's deceased enter into a consensus to sell the property it cannot be sold as one unit. In the event any attempt is made to sell it as a single indivisible unit he can go to court to seek a stay order.

3. You and your mother are free to lease out your share. The society is obligated to give the NOC. You can issue a lawyer's notice to the society for demanding the issue of NOC and then follow it up by going to court. 

4. You and your mother can sell your share only after the property is divided. 
Ashish Davessar
Advocate, Jaipur
18070 Answers
447 Consultations
5.0 on 5.0
Hi
1. Your mom's  Aunt has the right of 1/3 in the property which will be the right of her children.The elder sons  share will go to the wife and children, out of this 33%  they have a 1/3 share.
 There is no tenancy law applicable here, as it was purchased 
2. The Society should issue NOC if one of the legal heir of the deceased member is not turning up despite the legal procedure of a public Notice inviting claims i the property from the legal heirs.If he s not coming in time, send him a legal notice  intimating the sale proceed with the sale . His share of amount has to be kept away as he might turn up claiming that.
3. Once the public notice is given in leading news papers one in local language and one in English, if he does not turn up the society has no reason to not ot give NOC.
What you mean by this? ""Do I need NOC of any of the heirs of the deceased for lease ""? what lease? Yes you 
4. Yes you can sell your  and your mom share but since it is a flat you cant sell it apart of it,can you?.If in case other legal heirs also hesitate to agree and sign the  sale approach the court to get an order to sell it.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
Hi, you can't sell your share as the property is joint name the consent of all the owners of the property is required.

2. If one of the legal heirs of your mother aunt refuse to sell the property then you will not able to sell the property.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1) Do they have a right in the said property? (I assume they can claim a share in the 33% of my mom's aunt but I had read somewhere about tenancy in common and joint tenancy, please clarify)
Yes your mother's aunt is entitled to an equal share to that of you and your mother in the property purchased jointly on all the three persons name.  No question of common or joint tenancy, the legal heirs of the deceased shareholder can always stake their claim for their respective share in the property. 



2) All the people mentioned above have agreed to sell the property and divide the proceeds EXCEPT the youngest son of my mother's aunt to prevent the sale. The society is therefore refusing to grant NOC for sale. We have tried contacting him but to no avail. We have put a public notice in the newspapers regarding the same. As he continues to ignore, what is the legal procedure to sell the flat without his NOC?
A share holder if not willing to sell his share in the property, the others can approach court for partition of the property and once the court finds it that partition is not possible in the dwelling house, on the basis of advocate commissioner's report, it may be brought to public auction and all share hlders will get their money according to their proportion. 


 
3) Can the society refuse NOC for lease. Do I need NOC of any of the heirs of the deceased for lease ?
Yes, if the society is refusing to give NOC for lease, it is mandatory to obtain NOC from other share hlders for the same. 


4) Can we (I and my mom) sell off our 66% share. If yes how ? Please advise any way to get rid of the property and getting our share knowing that one of the sons isn't responding at all.
You and your mom can sell your undivided share in the property to the purchaser who is willing to buy it, here is no legal infirmity in it. 
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
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