• Sale of partitioned section of a house

I and my brother are co-owners of a house which has been partitioned long back. I now want to dispose of my part of the house but my brother is warning off prospective buyers and the buyers thereby demand a no objection certificate signed by my brother stating that he has no problem to my selling the portion that belongs to me. What should I do?
Asked 2 years ago in Property Law from Kolkata, West Bengal
1) you dont need your brother NOC for sale of your portion 

2) if house has been partitioned by metes and bounds you are absolute owner of your portion . 

3) you can give inspection to the purchasers  partition deed or deed of settlement that has been made between you and your  brother . 

4) if your brother creates roadblocks in sale move court and obtain injunction against your brother restraining your brother from creating obstacles in sale of your portion of the house
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
You don't have to get NOC from him as you both have partitioned the same by a registered deed. Show the buyers the deed and convince him. You can file a civil suit for not allowing the property to be sold and creating obstacles with injunction petition. Give a police complaint for obstructing the sale and for creating problems.
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
If the partition of the property was by way of only verbal agreement, which appears to be a case from your query then it may be difficult for youmto sell the house. If however the partition was by way of court intervention or by way of deed of family settlement and your share has been mutated in your name, no one can object to the proposed sale. Seek a court's injunction order if your brother obstructs the sale.
H. S. Thukral
Advocate, New Delhi
514 Answers
125 Consultations
5.0 on 5.0
Hello,
If the house has been partitioned by means of a probate,or otherwise if you have a registered deed to show partition  then your brother or anyone else can not object to your selling of your portion of the house.
You could then show the document to the prospective buyer and convince him/her about the lack of necessity for an NOC from your brother.
If despite this he causes obstructions in the sale file a police complaint to restrict him from such activities.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
A. No Objection Certificate from your co brother highly irrelevant due to  share clinched by the partition deed.

B. You have ample authority to sell your portion to third parties.

C. You can convince the buyer through submitting partition deed for his scrutiny.
B.T. Ravi
Advocate, Bangalore
736 Answers
29 Consultations
5.0 on 5.0
you dont need your brother NOC for sale of your portion
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
Section 4 in The Partition Act, 1893
Partition suit by transferee of share in dwelling-house.—
(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

The dwelling house in respect of which the pre-emption could be claimed being no more in existence no right could be claimed. So, Section 4 of the Partition Act would not apply in the instant case.
Minansu Bhadra
Advocate, Kolkata
266 Answers
23 Consultations
4.8 on 5.0
Hi,
 brother's consent and NOC is not needed. Talk to the purchasers and convince them about your absolute possession by showing the documents and boundaries as per the partition.   despite this  if  your purchaser is insisting for NOC   you will have to get a refraining order against your brother, not to create an objection in the sale.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
even though house has a common wall the rooms which you have share you can sell without his NOC you can file a suit and seek direction from the civil court with injuction petition for obstructing the sale
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1) you have not clarified whether partition  deed had been made with your brother 

2) if partition has been made by metes and bounds you can sell the portion of your house even if has common wall without your brother NOC
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
A. Generally, your brother can exercise preemption rights over the property.

B. Before you sell the property, issue legal notice to your brother, to call for purchase property as per market value

C. Apart from the above two points, your brother NOC need not be even though common wall.
B.T. Ravi
Advocate, Bangalore
736 Answers
29 Consultations
5.0 on 5.0
Hi,
 If there is common wall there should not be a problem. if your partition is a registered one or  through a court decree, there will be specification and demarcation of boundaries, so why does it create a problem. As long as legally you have the right, do not fear , confront your brother and warn him of a legal action if he puts an objection in your way to go ahead With the sale. You can also take this matter to the local police  and ask for their intervention .
Send a legal notice informing your brother your intention to sell your portion and warn him to refrain  from any trouble or creating objection. This will clear his  right of "preemption"(preemption means  in a partitioned property when any one of the heirs  sell the property, the first preference has to be given to the other legal heirs to purchase the property)
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1.  You first offer to sale your share of the said property to your brother at the same price you have been offered by others. This is called pre-emption & if he does not buy within a certain period, you will have no legal constrain to sell the said property to others,

2. If the property has been partitioned with metes and bounds, your brother has no right to threaten your prospective buyers. If he is doing so, he is doing it illegally and will certainly not issue any NOC. Moreover no NOC is required from him legally for selling your share of the property,

3. There is a way to sell such properties. Offer it to some promoter/developer. They will buy it from you and will ensures that your brother will be compelled to sell them his share to enable them to construct multistoried building on the property or will develop the property suitably to resell.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
A. Generally, your brother can exercise preemption rights over the property.

B. Before you sell the property, issue legal notice to your brother, to call for purchase property as per market value

C. Apart from the above two points, your brother NOC need not be even though common wall.
B.T. Ravi
Advocate, Bangalore
736 Answers
29 Consultations
5.0 on 5.0
Hello,
All you need to do is demand your brother to buy the portion of your house for the best offer you have received.

Do this by sending him a legal notice and make clear your stand and decision in selling the flat and taking legal recource if he keeps obstructing your attempts to sell.
A common wall can not come in the wasy of your selling the flat.
Find a buyer and move ahead.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0

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