My sister has sold undivided share in a building
My sister and myself (brother) went into a family partition agreement. As per this memorandum of oral partition, the building in dispute (a three storeyed building on 2400 square feet) should be sold as a whole and proceedings shared equally. But my sister sold her undivided share to a third party without my knowledge and against what was agreed upon. No sirs what is the best way to get my share of the property.
Asked 2 years ago in Property Law from Chennai, Tamil Nadu
Issue notices to the buyer and your sister. Both of you have inherited the property in equal shares and hence both of you can only sell the property jointly to a third party. Also in a family inheritence either of the parties have the first right of refusal(i.e you can choose to buy out your sister's share or vice versa) before selling to a third party. In your case both your invaluable rights have been trampled.hence you need to issue notices and file suit .
Hi, you have to file a suit for set aside the sale deed executed by your sister and also for deceleration that sale deed executed by your sister is not binding to you.
1) it is difficult to prove oral agreement
2) you should have entered into written agreement with your sister
3) under section 44 of transfer of property act co owner can sell his share without consent of other co owners
4) purchaser may file suit for partition for division of property by metes and bounds
You can file a suit for declaration of the sale deed executed by your sister in respect of her share as illegal. You are free though to sell your share even if the property has not been divided.
A. Your Sister is entitled to sell her respective share to third party without your consent. However, you can challenge the same under the undivided share and also right to pre-emptive under the Section 22 of the Indian Succession Act. You have first preferential right as co owner over the property.
B. It is very difficult to establish oral family partition unless estabished revenue documentary proof after the partition happen. You can file a suit for partition before the Court.
She should not have sold the undivided share in the property in a hurry. She could have consulted you at least once before she sold the property. Now the buyer will be having an equal share in the property and since it is undivided, he may file a partition suit seeking his respective share in the property through court of law or you can settle the issue directly with him by asking him to buy your share too at the prevailing market rate, if he is not agreeing then let him approach court for partition or if you want to have your share you can approach court of law with a partition suit.
Dear Counsels Both my sister and myself have a UNREGISTERED FAMILY PARTITION DEED in writing and notorized in which it is clearly stated that the building in question can be sold as a whole only and not in this manner. She sold her share deliberately in this manner which is definetely beyond the scope of the agreement. Thank you sirs
Asked 2 years ago
1) deed of partition has to be stamped and registered to be admissible in evidence
2) section 35 of of the Stamp Act creates a bar in admitting an instrument not duly stamped in evidence for any purposes by any person having by law or consent of parties authority to receive evidence.
3) Section 49 of the Registration Act can be pressed in the eventuality where the instrument though duly stamped, but has not been registered, which can be received in evidence for collateral purposes in view of the proviso inserted therein.
A deed of partition requires compulsory registration, failing which it is inadmissible in evidence. So the sale by her cannot be called illegal.
If you hold your unregistered partition deed as valid and want to proceed legally, you may file a suit seeking to declare the said sale deed executed by your sister as null and void, but you have to prove that why this selling is unlawful because she has an interest and right in the property similar to yours hence there is no illegality in she selling her undivided half share in the property. Let the buyer decide about sharing the property or partitioning it from you at a later stage.