Subject : Four of five children are willing to transfer the property of their father (who is no more) to their widow mother. One (male) of her (widow mother) five children, has been neither unwilling to transfer to his widow mother nor neither divide 1/6 including the widow mother. Background of this case has been to sell the property, where the person objects even that. Hence, thought to transfer the property to the widow mother. Question 1 : Considering the relinquishment deed, if 4/5 children's relinquishment deed are readt, if that may be adequate to ensure the widow mother has the control of the property? That may be further used for selling purpose? Question 2 : If the answer for question 1, states that the full consent from the sons and daughters (here 5/5) only if taken by taking all the five relinquishment deeds, then please suggest what could be the appropriate way to tackle this issue towards one of the legal heir (1/5 children) objects vehemently to transfer to his mother, nor equally partitioning, nor to sell the property legally. Regards Vijay
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1) for sale of property purchaser would insist on consent of all legal heirs . Under section 44 of transfer of property act co owner can sell without consent of other co owners
2) if brother refuses to sell nor partition property remedy is to file suit for partition of the property
Sir - Thanks for the information and reference. To understand rightly, the property shall be only transferred to one of the legal heir, only with all the other legal heir's approval or the actual relinquishment. To summarize on the next question, one of the legal heir has a right to sell the property, but issue may only arise if the third party purchaser if insists on the legal consent from all legal heirs, or the issue may arise if one the legal heir who has not given consent can go legally against the sale. Hope my understanding is right. Many thanks, sir. Regards Vijay
1) other legal heirs ie 4 children can if they so desire execute gift deed or relinquishment deed m
2) however that would not make your mother absolute owner of property as your brother still woukd have share in property
3) third party purchaser would insist on consent of all legal heirs if he is purchasing the property
Question 1 : Considering the relinquishment deed, if 4/5 children's relinquishment deed are readt, if that may be adequate to ensure the widow mother has the control of the property? That may be further used for selling purpose?
This is property and the rights are entitled and protected by the constitution. The disposal cannot be decided on the basis of a decision by majority share holders. Every share holder has a right in the property his legitimate share in the property cannot be illegally sold by others which can be considered as an offence. Thus your proposal cannot be legally enforced. Your mother cannot become an absolute owner of the entire property especially to that portion of property which was not relinquished or released in her favor by the unwilling son.
Question 2 : If the answer for question 1, states that the full consent from the sons and daughters (here 5/5) only if taken by taking all the five relinquishment deeds, then please suggest what could be the appropriate way to tackle this issue towards one of the legal heir (1/5 children) objects vehemently to transfer to his mother, nor equally partitioning, nor to sell the property legally.
Under this situation, a partition suit can be the only solution. No other method ill be legal or valid in the eyes of law.Your mothe can seek partition and take possession of her 4/5 shares which she can dispose it at her will after that.
To summarize on the next question, one of the legal heir has a right to sell the property, but issue may only arise if the third party purchaser if insists on the legal consent from all legal heirs, or the issue may arise if one the legal heir who has not given consent can go legally against the sale.
If the buyer is ready and willing to buy the undivided share in the property that is being sold by one or the other legal heirs selling it jointly to him, he may buy it and can file a partition suit to claim possession of his legitimate share of property against the unwilling legal heir who has not sold his share in the property.