You and other co per era are at liberty to sell your undivided share in land
I presume no stay order has been passed restraining you and other co owners from selling undivided share in land
Sale of undivided share in ancestral agricutural land in Gujarat
We 5 brothers jointly hold an agricultural land in Gujarat. It is ancestral land purchased by forefathers in 1901. The current owners are 4th generation owning the land. Partition suit has been filed by 3 brothers since 2017, however there is conclusion on partition suit yet and it is going into multiple hearings. Of the 5 brothers,only one brother and his 3 sons are not allowing partition niether agreeing to sell the property. The remaining 4 brothers are wanting to divide it or sell it. 4 brother are senior citizens along with one widow (as brother passed away) is also senior citizen (all are above 80 years plus). The widow does not have any sons or daughters. Can the 4 owners (incl widow) sell their undivided share in this agricultural land,as partition suit may take years to conclude???
Asked 2 years ago in Property Law
Religion: Hindu
10 Answers
Hi we have ancestral agricultural land in gujarat and had filed partition suit, The case in judgement stage and in next few weeks we should mostly receive an order for partition as property can be divided by metes and bounds. Can we sell our share once order comes though physical division will still need to be done by appointment of collector who will do survey and propose division. THere are 3 brothers who had filed this partition suit among total of 5 brothers. Need clarity on can we sell our share once partition order says that property should be partitioned.
Asked 2 years ago
In terms of law, Property is not ancestral. After order of court, if no appeal etc are filed then partitioned and divided property can be sold be respective persons I.e. brothers. Since property is no ancestral hence no consent of 5th brother and his children are not required.
wait till preliminary decree for partition is passed
court would appoint commissioner for division of land by metes and bounds
you can sell your undivided share in land
3) is needless to mention that consequent upon such addition of proposed transferees, there may be requirement of reopening of the preliminary decree. However, the same would be decided by the learned Judge before whom the proceeding is pending. It is also needless to mention that in the event the Court finds that there has been allotment of shares in respect of co-sharers who sold their interest in the suit property in favour of the subsequent transferees and there is no reason to interfere with such finding, the Court may not reopen such finding and pass appropriate orders by allotment of shares in favour of the proposed transferees. However, these are matters to be decided by the Court if required on evidence.
Yes you can sell your undivided share only possession will be an issue
Dear Client,
It appears that you and the other co-owners have the freedom to sell your undivided shares in the land, assuming there is no restraining order in place and the preliminary decree for partition has not been issued yet.
In the event of a sale, the court may appoint a commissioner to divide the land into specific portions based on measurements and boundaries.
It is important to note that selling your undivided share may potentially require reopening the preliminary decree, but this decision lies with the presiding judge overseeing the case. Additionally, if the court determines that shares have already been allocated to co-owners who have sold their interests to subsequent transferees, and there is no reason to challenge this allocation, the court may choose not to reopen the matter. Instead, the court may proceed to allot shares to the proposed transferees as necessary. However, these matters will be determined by the court based on the available evidence.
The sale of share in the undivided property could have been done before instituting the suit for partition.
Now since it is lis pendens, it will not be advisable to indulge in such activities which may even attract contempt of court.
If the preliminary decree is passed in the partition suit, then it is confirmed that whether the shareholders are entitled to their legitimate share in the property as a right.
In that case, if the decree is in your favor, you can proceed with the sale of undivided share of your property to the prospective buyer, willing to buy the undivided share after which he will step into your shoe to claim your share of property as per procedures of law.
I think you wanted to mention that "there is no conclusion on partition suit yet' instead of
'there is conclusion on partition suit yet'. Now the answer:
Yes, the 4 brothers (including the widow who is the only legal heir of the one brother) can get the land divided and sell their share. Problems arises only in the properties which are indivisible like a single unit house/flat which cannot be divided as per the local laws. You can sell your share after partition of the land, however, it would be better to go for selling only after the appeal period is over. Therefore, you should avoid entering into any agreement for sale hurriedly.
When 4 heirs are agree for partition, submit settlement deed in court, court may pass order even on objection of 5th one.
preliminary decree passed or not ?
- Since, the said suit is pending before the court , hence you 4 brothers can request before the court to refer the matter before the mediation for a settlement
- Further , if the said brother create problem in the mediation , then you all can move an application before the same court for getting the permission for selling respective share of the property.
- However, as the matter is at final stage , then you can wait for the outcome of the case .
