We are 5 brothers owning huf agricultural land. One of the brothers has sold his part of the undivided land without the consent of the other brothers and done demarcation on the most valuable part of the huf land and sold the boundary as well . Family discussions had been going on between the brothers on partition. The deputy collector decision is in his favour. The collector says that the buyer is a farmer. is registered ok and this entry can only be cancelled if the dustavage is cancelled in courts. We are applying to civil court to have dustavage cancelled. We have been told that we have to apply to the court for partition at the same time otherwise we lose the right of partition.But why should we apply for partition.? Should it not be the opposite party who applies for partition?
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Without a decision for partition among shareholders the partition of property with separate possession of their respective share in the property to each other cannot be determined.
If one among the shareholders is not cooperating or refuses to an amicable partition then the other shareholders can file a suit for partition seeking the desired relief.
Yes let them file first
1) File suit to set aside sale of coparcener share in land without consent of other coparceners in HUF
2) seek injunction restraining sale of land by buyer
3)Karta can sell the property owned in the name of HUF only in case of legal necessity for family needs and for benefit of the estate.
4) in case of sale buyer can apply for partition for division of property by metes and bounds
Your case is that one of the brothers has sold his undivided share in the ancestral property without consent of others. Every member of huf has right to sale share of property his ascertained/determined share of property after partition. Here he sold his unascertained share and that too a more valuable part. A suit for partition will decide shares of equal value of each member and if said brother has sold part of more than the value of his share equities will be worked out. That is he will have to compensate other of the excess value he received as sale proceed or sale to that extent of excess will be cancelled. Therefore, suit for partition is necessary. Add all members as parties to the suit including the purchaser and include all huf properties in the suit. Partition suit is not maintainable if any property and party is left out.
For filing suit you need not come to India, Draft a GPA in favour of you friend/relative on 100 rupees bond paper giving him power to file suit on your behalf. Take that GPA to Indian Consulate/High Commissioner and get it attested by official there. The GPA has to be in specific format. Send it to the person named in India. He can do everything appointment of Advocate, filing case, defending case etc. for you.
This is like unilateral partition by one co sharer
The sale is thus illegal
That brother was to first apply for partition of his share and then sell his share
Here it's like the cart is before the horse
The others will have to challenge the sale by filing a suit in civil court within the limitation period
. - Since , the said brother has sold his part of undivided share , hence the HUF already dissolved, as the only way a HUF can be dissolved is by a partition, and all members should agree to dissolve the HUF.
- Further, under a partition, each member has an equal right to the assets/property owned by an HUF, and it cannot be sold without having each member of the family on board, and even an unborn child, who is still in the womb of its mother, has a right to the property
- Further, Partition can be total or partial, and in total partition all the members cease to be members of the HUF and all the properties cease to be properties belonging to the said Partition could be partial also, and in partial some of the members go out on partition and other members continue to be the members of the family i.e. some of the properties, can be divided among the members other properties continue to be HUF properties.
- Further, it is not necessary that other members should agree to the partition, and other members can continue to remain joint.
1. You shall have to file as case challenging the decision passed by the Collector since the said brother can not demarcate & divide his share of the land without registering a partition/settlement deed.
2. Your case should be specifically against the impugned order passed by the collector.
Dear Client,
The co-owner can sell or transfer his portion only when he has exclusive rights to that portion of the property. If the exclusive rights are not entitled to each co-owner, such transfer of rights cannot take place without the consent of other joint co-owners.If the immovable property transferred is not a dwelling house, the transferee can ask for the partition of the property to either use it or sell it off. The family who owns the rest of the property cannot oppose the move to sell or own the portion by the transferee.
Thanks & Regards
