Purchaser intention is for division of property
2) if you do not agree he intends to take forcible possssion of property
3) enter into deed of partition for division of property
Undivided property
Hello Adv. Ajay, Hope your well Sir. This is my second time of asking a question as last time, your advise was helpful My question: My late grandfather has a self-purchased l house in Palghar, as share were not divided after this demise it remains an undivided joint property. My father’s late unmarried sister and late brothers son, sold their undivided share to a third person. they had initially put an advt in newspaper dated 2013 which we came to know and raised an objection through Lawyer at that time stating under act on pre-emption, its invalid ,Later we also submitted the same objection to Grampanchayat and tahasildar ( we have acknowledged copy). After doing this still in 2014, the purchaser paid some money in installment (cheque details mentioned in agreement) and got it executed and registered in registration office by paying stamp duty and also has the index II page. (I’m surprised how is his done when the docs attached of 7/12 have our names mentioned in it) . While paying this money, he also paid the late brothers son wife who are not staying with each other and separated although a divorce has not yet happen and no child. The purchaser has quoted a text as that as our relatives needed money to which he helped regularly and since they are not able to pay back, are selling their share in the property. Later they sent a notice through advocate to divide the property t which we replied through a hand written mail registered stating that the deal made is illegal Taking advantage of the Covid, the purchaser entered our property and broke down two three small houses located in our property leaving the big house broke from behind . we have lodged a police complaint , later an RTI to which the police responded as we have noted that the houses are seen in broken condition and upon investigation it’s not exactly understood who has broken it. we feel the purchaser did this either to frighten us , or to claim his ownership and the last probably to demolish the old houses so that gharpatti is not applicable and eventually as the houses are demolished, the question of dividing the share within the houses gets cancelled and so entire land can be divided. My question: what is his intention and plan as he has registered the agreement although its not divided and putting money in a non clear title property , and is there anything more to get is in written from Police . what should be our stand, my father has a one more married late sister, who’s son and daughter are also right holders , they are thinking of giving NOC to us to fight
Asked 4 years ago in Property Law
Religion: Hindu
14 Answers
File suit of preemption and obtain injunction against the buyer.
I would advice you to approach Civil Court for injunction and declaration of suit under section 34 and 36 of Specific Relief Act against your opponents.
You have also choice to move against your opponents under order 39 of and section 151 of C.P.C 1908 for temporary injunction.
You may move Criminal Proceedings before Magistrate Court under section 145 and 146 Cr. P. C. 1973 against your opponents.
This was your grandfather's property
I assume it is a self acquired property and not a HUF property
The right of pre emption is available in case of a HUF property
If this is the self acquired property of your GF, then after his demise, it will go to his legal heirs who are his widow and children, in equal share
All the legal heirs therefore become tenants in common or co owners of the property
Any co owner heir can sell his share to any person and there is no restriction against it, unless it is a HUF property
This is what has been done in your case too as some legal heir has sold his share to the builder under a registered document
As the builder has entered into possession, you should file a civil suit against him and seek injunctive reliefs against demolition of the house
In that suit you can claim partition of the property by metes and bounds and claim your share
Your father has a right for his legitimate share in the property.
Similarly other shareholders who sold their share in the property have rights in the property in respect of their legitimate share in the property that belonged to your grandfather, who is reported to have died intestate.
Therefore your father can file a parition suit seeking division of property by good and bad soil and metes and bounds and to allot his rightful share with separate possession.
The purchase of the unidentified share in the property by a third person cannot be treated as an illegal act.
Law of preemption may not be applicable to this situation.
You need to immediately move the civil court for injunction in this matter. If civil court is delaying due to covid move to HC under writ for appropriate direction to lower court and other authority
There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house.
Thank you very much for your time and valuable comments to all those who have provided me the answers. Now I understand there are two school of thoughts . According to some pre emption not applicable whereas few claim to file civil case on basis of pre emption. very confusing.... Some have suggested to take Injunction which sounds correct to me . How to take an injunction, who all are involved?. Secondly most important, How can the Registration performed by them stands valid ????. I wonder how since in the attached docs i.e 7/12 along with the sale deed agreement, our names as co-owners exist. How did the registration office made an attempt to register , this seems to be a big fraud . The purchaser had sent a notice before asking to seek partition to which we have denied basis on Pre-emption. I am looking forward for a logical solution. its a pain seeing someone breaking into the property unlawfully , although we replied to the initial paper notice objecting the purchase, how can stil they go ahead and get it all the way REGISTERED. this is something very strange, we have registered a online police complaint and have received responses stating its noted that houses stand in broken condition however when investigate it is not known who has done so ( but they haven't mentioned as its been broken as they haven't seen any one actually breaking or any witness. however i luckily have the photos of people who were actually breaking houses at that point of time yet to be shared with the cops..
Asked 4 years ago
Injunction will grant in preemption suit only. Registered document can cancel by court only. So role of registrar is over whether it was legal or illegal.
Provide photos to police and take receipt. If police do not act, file FIR through court and also file civil suit.
Corruption and corrupt government staff are responsible for such kind of act which is in existence since long era.This is World wide phenomenon no surprise. You have to fight for your grievances against injustice and corruption.
Amicable settlement is best option
2) approach buyer and offer to purchase share bought by him
3) if he refuses file suit for partition for division of property
- Since, you have already given compliant before the police , then you should forward the same to higher official of the police as well for lodging an FIR against the persons who sold the property without getting consent etc , and also against the said purchaser for the offence of trespassing .
- Further , send that complaint before in the office of the Registrar , for cancelling the the deed .
- Further, if no response from the police then file a Complaint before the magistrate under section 200 read with section 156 CrPc .
- Further, you can also file a suit for Declaration before the court on behalf of all legal heirs.
In my considered opinion, the shareholders have rights for their legitimate share in the property hence they can sell their unidentified share in the property to the prospective buyer, for which they need not take permission or consent from the agitating shareholder.
Similarly the buyer can issue a legal notice seeking parition and separate possession of his share in the property to the remaining shareholder(s), if he do not get response or cooperation for partition then he can approach court with a suit for partition.
He cannot take law into his hand to break or demolish the dwelling house property for any reason.
If you have evidence for the commission of this offence, you can initiate criminal action agaisnt the culprits trough police, if the police is not responding or cooperating then you can file a petition under section 156(3) cr.p.c. before the jurisdictional judicial magistrate court seeking direction to the concerned police for taking proper legal action on yor complaint.
1. You should file suit for cancellation of sale in ground of fraudulent transaction without partition of undivided property.
2. You should also pray for permanent injunction against buyer for restricting him from enterning the property and further alienation of property till disposal of suit.
You can do the aforementioned things from me for speedy action any futher wastage of time will be damaging for you