My house in Kolkata has four stakeholders which includes my father and his two elder brothers and his elder sister who has deceased a couple of years back. What my father's two elder brothers did was that they sold the so called "their portion" of the house to a local contractor without any prior notice to us and without any mutation of the house which has a single entrance and entity. Now the contractor is putting pressure on us to vacate the house as he "owns" a portion of the house and has also threatened us with a "power of attorney" with which they want to forcibly enter our house and evict us apart from several other threats of illegal measures required to make us leave the house. I would be grateful if I can get any advice that would stop the injustice and severe mental pressure that my family is going through at the moment. Thanks in advance.
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1) under section 44 of transfer of property act co owner can sell his share without consent of other co owners
2) purchaser can file suit for partition for division of house by metes and bounds
3) you cannot be forced to vacate your portion of the house
4) record the threats of buyer and file police complaint of criminal intimidation under section 506 of IPC
Hi, Your father is the owner of the property to an extent of 1/4th share your father will be the absolute owner of the property.
2. Even though certain share has been sold to the contractor he has no right to vacate your father from the property as the house un-dividable and it will effect to you.
3. Lodge a police Complaint against the contractor and also file suit in the Court for not to interfere in the peace full possession and enjoyment of the property.
The contractor has to file a suit for partition to separate the share that has been sold to him. Unless the partition is effected on the court orders he cannot get the possession of the property. To stop him from evicting you in an illegal manner you should file a suit for permanent injunction against him.
The joint owners of the property can sell their portion /share in the property to any one even other wise specifically written about getting the sanction or permission from the other co owners. If the buyer want to separate his share then he move to the court of partition.
If the threat is increased day by day then file a police complaint against the new buyer.Not vacate the possessed premises with out a court order is the only remedy available now. If possible settle the matter amicably.
1. The said sale conducted by father's two elder brothers is illegal since they have not made partition of the property to ascertain their share in it,
2. The said property is required to be partitioned and a partition deed is to be executed and registered before the Registrar which will give individuals their separate right, title and interest on their shares of the property,
3. Without legally acquiring the title of their shares of the property, they can not sell the same,
4. Moreover, before selling shares of a dwelling house, the Uncles were required to offer you the same at a price which was offered to them by the third party. This is called preemption which is mandatory for selling shares of jointly held dwelling house,
5. File a partition suit making the promoter also a party, challenging the said sale deed registered by your Uncles,
6. Apply for a stay order restraining the said contractor to enter in to your premises till disposal of the suit,
7. File a police complaint against the contractor for his giving you threats after audio recording all his threats,
8. If police fails to take any action against the contractor, you can file a Writ Petition before theHigh Court against the Police for its inaction seeking relief.
Firstly you have to file a mandatory injunction suit against the local contractor who is reported to have purchased the portion of your father's brothers' share of properties seeking to restrain him from interfering into your father's possession and peaceful enjoyment of his property with an application to not to use any forcible entry as threatened or posed by him as an interim relief till the disposal of suit.
He can file a partition suit against his brothers seeking partition of the properties and separate possession of his share in the property left intestate by his father, in this he should include the legal heirs of the deceased sister but has to intentionally avoid the purchasers of the brothers' share, let them give their statement before court about the existing fact. Just remain calm about the persisting threats, if the situation goes out of control you may take the help of police.
Can I file the Pre emption Right Property suit after 5 years of the sale of the property as I was not aware of the sale and no notice/letter was served to me? The said property has not undergone any change during this time and is as it is ever since the "sale" took place.
1) under section 22 of hindu succession act right of pre emption can b exercised. The conditions necessary for invoking section 22 of the Hindu Succession Act are as follows:-
a) An interest in any immovable property of an intestate or in any business devolves upon two or more heirs specified in clause I of the schedule.
b) Any one of such heirs proposes to transfer his or her interest in the property or business.
c) In that case, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
3) the right of pre-emption can be exercised even after the sale by the co-sharer and the sale is only voidable at the instance of the other co-sharer who has denied the preferential right.
4) Under section 22 (2) of the Hindu Succession Act, in the case of such transfer, the consideration shall be determined by the court on an application made before it in that behalf and therefore, the court has to fix the value of the undivided share sold by other 2 brothers and you are bound to pay value as determined by court
Whether pre-emption right would be available to you at this stage or not or whether a suit is maintainable can be ascertained only after seeing all the related documents, hence you may consult a local lawyer experienced in this field for all such further issues.
Where is pre emption when the property has been sold? You can however file for injunction to restrain the buyer from evicting you without following the due course of law.
1. You should now file the partition suit as suggested in my earlier post duly challenging the sale made by your Uncles and also making the Contractor a party,
2. You should challenge the said sale deeds registered by your uncles before partitioning the property and also without offering you their shares before registering the said sale deeds to the contractor,
3. You can certainly challenge the sale deeds registered by your Uncles by filing suit before the Court now on the ground that you have learned about the said sale deed recently.