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.