• Sell of share in immovable property without handing over physical possession

I hindu by religion received a family property a house(from father,s property who died intestate in 2013) as per an unregistered family settelment executed among family members in the year 2018 later on some disputes devloped among family members with regards to family settelment which has been sorted out through court where a compermise deed is executed in 2023 by family members accepting the family settelment of 2018 and accordingly court accepted the compermise deed and pass compermise decree. However every family member couldn't be put in seprate possession due to family wish and all properties were kept in joint possessions and enjoyment of all family members as in the same way as earlier.However names of every family members has been entered in revenue records of nagarpalika for their respective shares and since then everyone is paying house tax etc for their respective shares.I am in job and lives in other city my younger brother family is living on some portion of my property share, now I want to sell my property share but my younger brother not vacating . The property is residential cum commercial situated in u. p district- sambhal within nagapalika boundries. Please clarify my below points-
1- can i , myself alone execute a registered sale deed for my property share ( that comes to me vide a court compermise decree in regards of unregistered family settlement) in favour of anyone without consent of other family members or any one else? 
2 - A buyer is interested to buy my property share on" as is where is " basis, where physical possession will be taken by buyer himself after executing registered sale deed in his favour . Whether mentioning such condition (as is where is) in sale deed and further that, possession will be taken by buyer himself and seller will not be responsible for it in any way , wil not invalid sale deed? Whether such expression will not turn nature of this sale Deed to a conditional sale deed? 
3 - From seller point of view. will such a sale deed executed without delivering physical possession of property is legally valid and considered as sale completed?
4 - from buyer point of view - whether physical possession by buyer is not a mandatory requirement to become him a true absolute owner of purchased property? Please explain how it will affect the legal validity of a sale deed which has been executed with " As is where is" Basis without handing over physical possession to buyer. 
5 - whether prefential right clause will apply in this senerio, when my share is in joint possession with my younger brother and mine families . However they have no right as they got other property at other location. If yes then how this preferential right be countered. 
 6- can I directly execute registered sale deed in favour of buyer without entering into agreement to sell with him, is there any harm/problem as I want to complet sale with no waiting time, your view please in this regard.
Asked 10 hours ago in Property Law
Religion: Hindu

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5 Answers

1) You can legally sell your share in a joint property without the consent of other family members.

2) The Registered Sale Deed should clearly mention that your share was obtained via the court compromise decree i

 

3)As is Where is" sale  is valid without physical possession

 

4) Under Section 54 of the Transfer of Property Act, 1882, the sale is completed upon the registration of the sale deed, payment of consideration, and transfer of title, even if physical possession is not handed over immediately.

 

5)

Under Section 22 of the Hindu Succession Act, if a property has devolved upon Class I heirs (like you and your brother), and one heir wants to sell their share, the other co-heirs have the first right to purchase it.

 

6) Before selling to a third party, you must issue a legal notice to your brother offering him your share at a specific price. If he does not accept within a reasonable time, you can sell to the outsider

Ajay Sethi
Advocate, Mumbai
100237 Answers
8186 Consultations

1. As you have mentioned that the properties are still in joint possession and no demarcation of each individual share has been made nor the individual share has been identified, hence you may not be able to sell the share of property reported to have been allocated to you without  proper demarcation. 

2. If any prospective buyer is willing to buy your undivided share in the property, he may then file a suit for partition claiming his share in the property that was allocated to you, at a later stage.

3. The above answer suits this question too.

4. . Firstly you may not be able to validate the sale on the basis of as is where is because your share in the property has not been legally identified nor it has been allocated particularly, therefore you can sell your unidentified share only to the buyer, he can later on file a suit for partition and claim his share as per court order 

5. An individual co-owner can sell their undivided/unidentified share in a jointly owned property to a third party without the consent of the other co-owners, as permitted by Section 44 of the Transfer of Property Act, 1882.The buyer acquires all rights of the seller, including the right to joint possession and the right to seek partition The buyer of an undivided share cannot take exclusive possession of any specific part of the property until a formal partition (metes and bounds) is finalized.

However, this right is not absolute and comes with significant legal limitations regarding possession, and it does not allow the seller to disregard the preferential rights of co-owners, especially in certain types of properties. As per section 4 of partition act, if the joint property is a residential dwelling house and a co-owner sells their share to a non-family member, the remaining co-owners have a preferential right to buy out the outsider's share. Under Section 22 of the Hindu Succession Act, 1956, when a co-heir intends to sell their share in inherited immovable property, the other co-heirs have a preferential right to acquire that share on the same terms.

6. It is not advisable.

 

T Kalaiselvan
Advocate, Vellore
90439 Answers
2519 Consultations

Yes, you can generally sell your undivided share by a registered sale deed without other family members’ consent, provided the compromise decree clearly recognizes your share and does not restrict transfer. Under law, a co-owner may transfer his share; the buyer then steps into your shoes.

Non-delivery of physical possession does not by itself make the sale deed invalid. The sale is complete on registration, but the buyer may have to seek partition/possession separately; and if the property is still treated as an undivided family dwelling house, an outsider-buyer cannot claim immediate joint possession in the residential portion.

One important caution: since the share came through intestate succession, other Class I heirs may claim a preferential right to purchase under Section 22 of the Hindu Succession Act. So, before selling to an outsider, first give them a written offer. You may directly do a sale deed without an agreement to sell, but draft the deed carefully with the decree reference and clear possession wording.

Saurabh Agrawal
Advocate, Greater Noida
27 Answers

Firstly, you are legally entitled to sell your undivided share in the property without consent of other family members. A co-owner can transfer his share independently. However, since the property is still in joint possession, you can only transfer your share and not any specific demarcated portion unless partitioned.

 

Secondly, executing a sale deed on an “as is where is” basis is legally permissible. Mentioning that possession will be taken by the buyer himself and that the seller is not responsible for handing over physical possession does not invalidate the sale deed. It also does not convert the transaction into a conditional sale, provided the transfer of ownership is absolute and complete.

 

Thirdly, from the seller’s perspective, delivery of physical possession is not mandatory for validity of a sale deed. Once a registered sale deed is executed and consideration is paid, the transfer is complete in law. However, practical possession issues may still remain.

 

Fourthly, from the buyer’s perspective, ownership flows from the registered sale deed and not merely possession. However, lack of physical possession may expose the buyer to litigation (for possession/partition), which is why such transactions are usually discounted in value.

 

Fifthly, regarding preferential rights (pre-emption), in Uttar Pradesh such claims may arise in limited circumstances, but generally among co-sharers it is not an automatic bar unless specifically applicable under local law or custom. Even if claimed, it can be countered by completing a bona fide registered sale to a third party. However, to avoid dispute, it is advisable (though not mandatory) to first offer the share to co-sharers.

 

Sixthly, you can directly execute a registered sale deed without entering into an agreement to sell. There is no legal requirement to first execute an agreement. However, ensure that:

  • Full consideration is received and documented
  • Clear title documents (including compromise decree) are annexed
  • Proper indemnity clauses are included

Practical advice: Since your brother is in occupation, clearly disclose this fact in the sale deed to avoid future disputes or allegations of concealment.

 

In conclusion, your proposed course of action is legally permissible, but since the property is in joint possession, the buyer will effectively step into your position as a co-owner and may need to take legal steps for partition or possession.

Yuganshu Sharma
Advocate, Delhi
1264 Answers
5 Consultations

1) a "Compromise Decree" serves as a final, legally valid division of ownership. However, if the physical possession was not separated—i.e., boundaries were not physically created, walls were not erected, and you did not take exclusive physical possession—the property is still technically in joint possession.

 

2)  an undivided share of a co-sharer may be sold, but physical possession cannot be handed over to a new buyer unless the property is physically partitioned by metes and bounds.

 

3) Because your brother is living on your share, the physical and legal possession is merged. The municipal records (mutation) prove you own a specific percentage or value of the house, but not a specific physical room that is legally separated from your brother's area.

 

4)Because your brother is in physical possession of the portion meant for you, he holds joint possession.

 

5)your brother is as a licensee (he lives there with your permission). However, because you haven't taken physical possession of your share, he is still treated as a co-owner in possession of the whole property.

 

6) issue legal notice to brother to vacate your portion 

 

 


You are not bound to sell it to him at a lower price or on his terms. 

 

 

Ajay Sethi
Advocate, Mumbai
100237 Answers
8186 Consultations

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