She can only sell her share not others share 

your mother is at liberty to sell her undivided share in land 

she does not need  consent of other legal heirs of deceased siblings 

As your mother owns only a 50% undivided share in the family estate, consent of the other co-owners is necessary for selling her share. In view of the objection raised by one of her brothers, it isbetter for her to file a suit for partition of her share by proper metes and bounds to avoid any claim in future. Please engage a competent lawyer and arrange to file a partition suit at the appropriate court.

Section 44 of the Transfer of Property Act, 1882 permits a co-owner to transfer his or her undivided share in jointly owned immovable property without obtaining the consent of other co-sharers. The transferee acquires the transferor’s rights to that extent and may seek partition. The co-sharer may alienate an undivided share without the consent of other co-sharers, and the Sub-Registrar cannot refuse registration merely for want of such consent.

Accordingly, if your mother’s title to 50% is clearly established, she can sell her 50% undivided share without the fourth brother’s consent. If notional demarcation is done, then fine; otherwise, the sale deed should convey her “50% undivided right, title and interest” in the entire property.

Dear Sir/Madam,

On the facts stated, your mother can ordinarily sell her own 50% undivided share in the property without obtaining the consent of her brothers. The fact that the property has not yet been partitioned does not, by itself, prevent a co-owner from transferring his or her undivided interest.

Section 44 of the Transfer of Property Act, 1882 expressly recognises the right of a co-owner to transfer his or her share in immovable property. The purchaser then acquires the transferor's rights in that undivided share and can seek partition.

This principle has also recently been reiterated by the Orissa High Court in a case concerning an undivided share, where the Sub-Registrar had refused registration because the other co-sharers had not consented. The High Court held that such refusal was legally unsustainable and recognised the co-owner's right to transfer her own share under Section 44 TPA.

Therefore, the fourth brother cannot ordinarily veto your mother's sale of her own 50% undivided interest merely because he does not consent.

There is, however, an important distinction. Your mother can sell her undivided 50% share, but she should not execute a Sale Deed purporting to sell a particular physically demarcated portion of the land as "her 50%" unless the property has first been partitioned. Until partition, her 50% is an interest in the property as a whole, not necessarily the eastern/western/northern/southern half.

For example, the Sale Deed should essentially convey:

"50% undivided right, title and interest of the vendor in the schedule property"

and should not purport to convey a specifically identified 50% portion by artificial boundaries unless such portion has already been legally partitioned.

The purchaser would then step into your mother's position as a co-owner and would have the right to seek partition. This is precisely the effect contemplated by Section 44.

There is another issue which I would not overlook in your case. You have stated that the remaining 50% is described as belonging to her four brothers, of whom three are now deceased. Before any sale is undertaken, the present title of those three deceased brothers must be verified. Their shares may now have devolved upon their respective legal heirs. Therefore, the current revenue/title position should be examined rather than assuming that the surviving brother is the only person with an interest in the remaining 50%.

Your mother's 50% share, however, does not become invalid merely because some of the other co-owners have died.

Whether she should sell immediately or file partition first

There are two legally possible routes.

Route 1 — Sell the undivided 50% share now

This is legally possible if your mother's title to the 50% is clear and there is no existing injunction, agreement restricting transfer, acquisition proceeding, statutory restriction or other encumbrance.

The buyer would purchase the undivided 50% interest and subsequently seek partition.

This route avoids waiting for a potentially lengthy partition suit. However, in practical terms, an undivided-share sale is more complicated than selling a separately partitioned plot, and purchasers may demand a substantial discount because they are buying into a co-ownership dispute.

Route 2 — File a partition suit first

This is, in my view, the cleaner route if your primary objective is to obtain an undisputed, separately identifiable portion of the land and then sell it.

Your mother can institute a suit for partition and separate possession, seeking declaration of her 50% share and division of the property by metes and bounds.

If her title documents clearly establish that she owns 50%, while the brothers collectively own the remaining 50%, her basic claim to partition would ordinarily be strong. The fact that one brother refuses consent does not defeat the right to partition.

The ultimate physical division, however, will depend upon the nature, location, size and development potential of the land. A court may also have to determine the shares of the deceased brothers' legal heirs before passing an effective final decree.

What I would recommend in your situation

Since you specifically want to avoid future litigation, injunctions and complications, I would not simply rely upon the local agent's assurance that "your mother can sell her land."

I would first conduct a complete title/revenue due-diligence exercise.

In particular, verify:

1. The original Will under which your mother inherited the property;
2. Probate/letters of administration, if applicable to that Will;
3. The death certificate of your grandfather;
4. Current RoR/Record of Rights and mutation entries;
5. The exact extent and boundaries of the property;
6. Whether the Will has actually been acted upon through mutation;
7. The present legal heirs of each of the three deceased brothers;
8. Whether any partition, family settlement or relinquishment has previously taken place;
9. Whether there is any pending civil litigation or injunction;
10. Whether there is any mortgage, charge, acquisition or other encumbrance; and
11. Whether any Odisha-specific restriction applies to transfer of this particular category of land.

This last point is particularly important because you have described the property as land in Kendrapara, Odisha. If the land is agricultural land or falls within any statutorily protected category, there may be additional restrictions that need to be checked before execution of the Sale Deed.

If the title documents are clean and your mother's 50% share is undisputed, the brother's consent is generally not required for a registered Sale Deed of her undivided 50% share. The recent Orissa High Court decision is particularly useful on this issue because it arose from Odisha and concerned refusal by a Sub-Registrar to register an undivided-share sale without co-sharer consent.

If, on the other hand, your objective is to sell a specific portion of the plot, I would recommend partition first. A buyer should not be given a Sale Deed describing a particular half of the land when there has been no legal partition.

Also, if your mother sells her undivided share without partition, the purchaser cannot subsequently claim that the particular part shown to him by the agent belongs exclusively to him. The purchaser acquires your mother's undivided interest and must obtain a partition to have a specific portion allotted.

Can the brother obtain an injunction?

The mere fact that your mother proposes to sell her own undivided share does not ordinarily give the brother a right to prevent the sale simply because he does not approve of the purchaser. Section 44 specifically permits transfer of a co-owner's share.

Nevertheless, he could initiate litigation if he alleges some independent legal ground—for example, that your mother does not actually own 50%, that the Will is invalid, that there has already been a partition, that there is an existing agreement restricting transfer, that the property is subject to a statutory restriction, or that the proposed transaction is fraudulent. Therefore, a proper title examination before sale is much more important than obtaining his "consent" merely as a precaution.

If he files a suit merely asserting that his consent is necessary for the sale of your mother's undivided share, the statutory position under Section 44 is strongly in your mother's favour, subject to the actual title documents and any special statutory restriction applicable to the land.

Partition suit and prospects

Yes, your mother can file a partition suit. If the documents establish a genuine 50% ownership interest and there is no contrary document or prior partition, the prospects of obtaining a declaration of her share and partition are generally strong.

But I would not give a fixed "success rate" or guaranteed time period without examining the title documents and the number/location of the properties involved.

A contested partition suit can take several years because the court may have to determine title, identify all necessary parties, determine the shares of the deceased co-owners' legal heirs, consider objections and ultimately pass a preliminary decree followed by a final decree and actual division.

Therefore, if your mother simply wants to monetise her 50% interest and is comfortable with the purchaser acquiring an undivided share, a properly drafted registered Sale Deed may be considerably faster than waiting for partition.

If, however, she wants a clean, separately identifiable plot which can subsequently be sold without involving the brothers, filing partition first is the safer long-term strategy.

My recommendation would therefore be: do not proceed with the proposed sale merely on the assurance of the local agent. First conduct title and revenue due diligence. If the 50% title is clear and there is no statutory restriction, your mother can legally sell the 50% undivided share without her brother's consent. If she wants to sell a particular physical portion, initiate partition proceedings first.

The fact that this is in Odisha is advantageous from a research perspective because there is recent Orissa High Court authority directly supporting the proposition that a co-owner's undivided share can be transferred without obtaining consent from the other co-sharers.

Under Section 44 of the Transfer of Property Act, 1882, a co-owner has the right to transfer their undivided share in a property without the consent of other co-owners.
If the plot includes a family dwelling house, the buyer (a stranger to the family) cannot legally force joint possession or move into the house under Section 44.
Revenue authorities (Tehsildar in Kendrapara) often refuse or delay mutating a specific patch of land in favor of a stranger if the parcel is undivided and contested by remaining co-owners.
The surviving brother (or the legal heirs of the deceased brothers) can immediately file a civil suit for an injunction restraining the buyer from taking physical possession or altering the land, dragging your mother into a multi-party dispute.
Under Section 22 of the Hindu Succession Act, 1956, if an heir proposes to sell their share in an inherited property, the other heirs have a preferential right (pre-emption) to buy that share at market value.
Send a registered legal notice to the surviving brother and the legal heirs of the 3 deceased brothers, offering to sell her 50% share to them at fair market value.
If they refuse or fail to respond within a set window, you establish a paper trail proving that the family was given the first right of refusal, which severely weakens any future court injunction claims by them.
To pass clear, unencumbered title to a third-party buyer at market rates, the land must be physically demarcated via a formal partition.
A co-owner has an absolute legal right to seek partition and separate possession; the court cannot deny her 50% share simply because the surviving brother objects.
The timeline, expect 2.5 to 5 years if the surviving brother actively contests or delays court notices.
Do not allow agents to sell her share "on paper" without partition—it usually results in heavily discounted sale prices, buyer disputes, and immediate legal proceedings from the brother.