We are two legal heirs (mother and son). The undivided property is still in my deceased father's name i.e. we did not do any mutation after his death. Mother is alone in India and is being influenced by third party who has developed interest in her share of the property. The third party has advised mother not to do any settlement and she has obliged to their request. I have all the original documents in my possession. I am assuming my mother 1) Cannot Sell the property legally to the third party without my permission, as the property is undivided.i.e. I think the Registrar would ask to see the legal heir certificate which has my name on it and hence my consent to sell. 2) Cannot Gift the property, as she did not earn it 3) She can leave a will for the third party. But this being a case of Coercion, we can request for court intervention Is my understanding correct? Is there anything else I need to be worried about?
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Just to clarify the property is in Chennai. The property being referred is a dwelling house where my mother lives. The third party I am referring to is one the tenants. Please could you also confirm if it is possible to build on the above mentioned property without my consent as a legal-heir(co-owner)
1) on demise of your father you and your mother are the legal heirs to the property
2) under section 44 of transfer of property act co owner can sell his share in property without the consent of other co owners
3) purchaser of your mother share can file suit for partition
4) your mother can execute gift deed for her share in property
5) mother can also bequeath her share in property by will to whom soever she pleases
6) you can on mother demise challenge the will if you so desire
1) to carry on further construction in the property your consent would be required as municipal corporation would insist on your consent to carry on further construction in the property
1. Your mother can sell her share without your consent. Thereafter, the buyer may take the possession of the property. She can also gift the share which devolved on her through succession after the demise of her husband.
2. If she makes a will, which you assail in the court on the ground of coercion, you will have to lead insurmountable evidence to prove that it is vitiated by coercion. The court will not cancel the will at the throw of a hat.
3. The remedy for you is to either file a suit for partition to physically separate your share in the property and seek injunction to restrain her from alienating your share.
Well,since you mother is half share holder of the proeprty she can not sell the whole proeprty but can surely sell undivided half share in it.
So the tenant can purchase her half share and then file partition suit to demarcate his half ownership in the house.
If you do not want that ,file a suit for partition and injunction.
The undisputed fact is that your mother is owner of half share of the property left by your late father. As far as answers to your queries, the same are as follows
1) Your mother can sell her undivided share of property and the buyer shall acquire interest in the property as a co-owner but if he is outside the family he can not enjoy the joint possession and has to go for partition of property. The tenant might be interest to buy the property since he is in possession of the same and it will be upon you to repossess the property through a process of law. the Registrar shall have no objection in adding the buyer's name as co-owner in the title of the property. If you can understand the law I would like to produce section 44 of the Transfer of Property Act which is as follows:
Transfer by one co-owner.—Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
2) Can not gift the property without your consent. Any such gift deed would be void.
3) She can Will her property as per her desires but it is open for you to challenge the will on the basis that the beneficiary had control over the executrix and was influenced by him.
What you should do in the circumstance is that you file a suit for injunction, restraining your mother from disposing her property by way of sale to the tenant as the buyer being in possession shall possess the property jointly thus violating the law. Implead the tenant as a party. Also restrain her from executing any gift deed in favour of a third party without your consent.
1) Cannot Sell the property legally to the third party without my permission, as the property is undivided.i.e. I think the Registrar would ask to see the legal heir certificate which has my name on it and hence my consent to sell.
If your mother decides to commit fraud upon you she can do it by any means and it is not the duty of the registrar to verify the legal heir ship certificate and also he has no time to look into such issues while registering a property document.
However your mother cannot sell the entire property by herself suppressing the fact there is one more legal heir to the deceased owner and he has a share in the property. No buyer will agree to buy the property without the other sharer signing the sale deed document.
2) Cannot Gift the property, as she did not earn it
She can transfer her own share of property by executing a registered gift deed.
3) She can leave a will for the third party. But this being a case of Coercion, we can request for court intervention
She can bequeath her own share of property through a will which cannot be questioned by others.
Please could you also confirm if it is possible to build on the above mentioned property without my consent as a legal-heir(co-owner)
Since the property, the dwelling belong equally to both of you the terrace rights are also equal to both of you hence she cannot construct any floor over the existing terrace on her own without taking your consent or permission.
1. Your mother can not ordinarily sell the undivided property without offering the same to you, if the property is a dwelling house. Otherwise she can sell her undivided share of the property she has inherited from her husband. The buyer shall have to file a partition suit against you to get his purchased property divided and demarcated,
2. She has inherited her share of your father's property. She can certainly gift her said undivided share to anybody she wishes to,
3. She can execute a will in favour of anybody who shall have to take probate from the Court if the property is located in the area where probate of will is mandatory (In Delhi, no probate of will is required).
1. In the given circumstances, she can not sell her share of the property without offering the same to ou,
2. Her share of the property can be gifted and willed by her and in that case probate of the will shall have to be taken by the benefactor,
3. There can not be any construction in the property with out your consent.
Thanks for your answers. Follow-up questions 1) Assuming my mother writes a will benefiting the third party and the will gets probated in the court. The third party will go for a partition suit ( as I won't agree to partition) . Am I right in saying the court will offer me a chance to buy the share that was transferred by my mother? 2) Under the above circumstances, if I decide to buy, would the court use the guideline value or market value? 3) And finally if I file a Partition suit now on my mother? What sort of court fees we are talking about here roughly - 100s,1000s or lakhs? My share (i.e. 50%) is roughly worth 2 crores
1. The court will not offer you a change to buy the share of your mother if she has created third party rights.
2. The court fee is not uniform throughout India as every state has its own slab. You are looking at a court fee in the ballpark range of 2-4 lakhs if your share is 2 crores.
1) Assuming my mother writes a will benefiting the third party and the will gets probated in the court. The third party will go for a partition suit ( as I won't agree to partition) . Am I right in saying the court will offer me a chance to buy the share that was transferred by my mother?
In a partition suit if one of the co-sharers do not agree for partition terms then the court may bring the entire property into auction and distribute the proceeds among the co-sharers. Firstly understand that a Will will come into force only after the lifetime of the testator.
2) Under the above circumstances, if I decide to buy, would the court use the guideline value or market value?
In a general auction the highest bidder will get the bid.
3) And finally if I file a Partition suit now on my mother? What sort of court fees we are talking about here roughly - 100s,1000s or lakhs? My share (i.e. 50%) is roughly worth 2 crores
Court fee varies from one state to another across India. In some states the court fee is ad-veloram and in some states it is as per suit valuation, so without knowing in which state your property situate, no idea can be given about it.
However as you said in one of the posts earlier the if the property is located in Chennai, then the maximum court fee shall be rs. 1000/- however the advocate fee will depend on the advocate you may engage based on various factors.
1) . you have to file application under section 5 of partition act seeking permission of the court to exercise the right of pre-emption to purchase the undivided share of third party
2) market value of property would be considered in determining value of third party share
3) you can file suit for partition now . court fees is state subject . varies from state to state . it can be around Rs 3 lakhs or so
1. If the person to whom the share of your mother has been bequeathed by her obtains probate from the Court despite your challenging the will, he becomes the absolute owner of your mother's share of the property. The third party may file a partition suit against you to be decided by the Court if you disagree for executing a partition deed,
2. Court will not fix any value for your buying the property,
3. The Court fees in filing suit varies from state to state. You can file the partition suit keeping the payment of fees pending and to be paid after getting the decision of the Court in your favour.