Transfer of a part of ancestral property surreptitiously by one of the heirs

Hi everyone,

Can an ancestral property be transferred by a widow (of 2nd generation son) as one of the heirs out of 5 living heirs (3rd and 4th generation - son and grandchildren of widow's husband's elder brother) without their knowledge? She sold not only the portion she was living in but also a locked portion occupied for over 20 years by the son of the widow's husband's brother.

My related queries are:

1. How can sub registrar transfer the property without checking the status of other claimants and heirs?
2. Will such a transaction be null and void? How can he be made answerable for this fraudulent transaction?
3. In a large ancestral property, does someone who is living a particular portion of the property (say 2-3 rooms) give them the absolute right to sell such an occupied portion without knowledge of other coparceners/heirs? Does it require a formal partition of the property first before sale can be undertaken?
4. Are there any case laws around this?
5. Can an injunction be sought against the purchaser?

Asked 1 year ago in Property Law

Religion: Hindu

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6 Answers

it does not give them absolute right to sell occupied portion

2) basically all legal heirs have undivided share in property

3) you have to file suit to set aside fraudulent transfer

4) seek injunction restraining sale of property by purchasers

5) transaction is not null and void but has to be set aside by courts

Ajay Sethi

Advocate, Mumbai

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Sub-Registrar is not bound to delve deep in to the title of executant of sale deed. He only prima facie ascertains the title to executant.

Such transaction is absolutely void and can be set aside only if other legal heirs seeks cancellation of it.

Possession of any portion or whole of the property does not confer any right to sell the property of determines his/her share. A legal heir can valid sale his share only after due partition of property.

All the law of succession to property of Hindu revolves around such cases. There are hundreds of such cases.

File a suit for partition and separate possession ancestral Add all the coparceners and purchasers of property as defendants to the suit. Seek cancelation of sale deed executed in favour of third parties. Produce the certified copies of sale deeds in Court. Obtain injunction against further transfer of property by legal heirs. You will get your share with cancellation of sale deeds executed without consent of all legal heirs

Ravi Shinde

Advocate, Hyderabad

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1. In the given burden of workload, the sub registrar has no time to go very deep into the title confirmation of the seller, especially if this is an inherited property. Besides, such works are carried out by the crooked brokers corrupting the sub registrar, hence such grave mistakes may tend to happen. The solution for the aggrieved is that he can submit an application to the District registrar venting out his grievances with the support of documentary evidences and request for cancellation of the registration or he can file a suit before civil court for remedy.

2. The remedy for this has been explained in the above answer. The so called void transaction cannot be cancelled by the sub registrar.

3. Since the property devolves on all the legal heirs/successors in interest, the sale of entire property by only one of the legal heir or few legal haiers without taking consent from other legal heirs is not valid in law, the aggrieved shareholders can file a suit for partition and also seek for declaration of the sale as null and void in the same suit.

4. There are plenty of case laws in this regard.

5. If you file a suit for partition you can seek the reliefs of declaration of the sale deed as null and void as well as an order of injunction against the purchasers as additional reliefs.

T Kalaiselvan

Advocate, Vellore

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1. It is an error on the part of Sub registrar to not do the due-diligence before the transfer of title. It is his/ her duty to verify the title and after due verification of title only, he can execute the transfer.

2. According to a Latin maxim, Nemo dat quod non-habet which means that no one can transfer a better title than he himself has, only the owner of the goods can pass the lawful ownership or title of goods to the buyer. So, such sale is void is the seller doesn't have rights to sell more than her undivided share in the property. Sut sale can be challenged in the court of law and can be sat aside.

3. Having mere possessiom of the property in case of an ancestral property does not transfer any title on the person more than what they already posess. Also, they also claim adverse possession against family members.

5. You can file a suit for injunction and cancellation of sale deed on the abovementioned grounds, along with an application seeking interim stay on creation of any third party interest or alienation of the property.

Siddharth Jain

Advocate, New Delhi

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Dear client,

A father has a choice to not will-out his self-acquired property to his son. However, this is not valid in case of ancestral properties. The Hindu Succession (Amendment) Act, 2005 confers the status of a coparcener on daughter giving equal rights (with the son) on an ancestral property.Hence the widowed lady can not do so.

Thank you.