My father's younger brother had a considerably valuable land in Bangalore. When he died, my aunt got it transferred in her name. About 2 years ago she died. They had no children. She left a Will in which she gives the property to 11 inheritors, who are her husband's relatives. There are 3 executors named in the will. Two are from the beneficiaries and one is not a beneficiary (but a son of a beneficiary). The Will says since the property is indivisible, it may be sold and the proceeds be divided among the beneficiaries as per their entitlement. The Will is probated. In the probate, the Judge has prohibited the Executors to sell. Only beneficiaries can sell. Due to some activities from the adjacent plot, we have practically no buyers. Only one or two offers have come, in spite of trying by dozens of brokers and lot of effort. One offer is from the adjacent plot owner. Now, about 50% of the parties want to sell and the rest block the sale by telling that the price is low. We are unable to proceed. My questions are 1. The plot size being too small, it will be impractical to divide it, even by Court. Right? 2. Can we approach the Court to ask the opposing parties to agree to sell to available offers, since they are obstructing implementing the Will? If they still oppose, can the Court appoint a Receiver to auction and sell it? In this case, who will have to bear the expenses - only the petitioner/s or all? Can some of the beneficiaries grab the land by posting a binami buyer? 3. Can the parties wanting to sell their shares to an interested buyer sell it to get at least some money? 4. I have doubt that the opposing parties have adopted a waiting tactics. One person is residing locally. He may be thinking that he can encroach it once all people get fed up and go away. Is there any way by which taking over by a person or group can be prevented? 5. Is there any other solution to this problem which I have not written here?
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1) file suit for partition to divide the plot by metes and bounds
2) if the plot cannot be divided by metes and bounds court would direct property to be sold and sale proceeds distributed among the beneficiaries
3)in the alternative under provisions of section 44 of contract act co owner can sell his share without consent of other co owners
Dear Querist
My opinion on your queries are as under:
1. The plot size being too small, it will be impractical to divide it, even by Court. Right?
Opinion: Yes, the court can not go beyond the Will and bound to follow the conditions of Will.
2. Can we approach the Court to ask the opposing parties to agree to sell to available offers, since they are obstructing implementing the Will? If they still oppose, can the Court appoint a Receiver to auction and sell it? In this case, who will have to bear the expenses - only the petitioner/s or all? Can some of the beneficiaries grab the land by posting a binami buyer?
Opinion: If there is any condition regarding the selling the property, in the Will, then the court will follow that condition otherwise the court have all power to pass an order to sell the property, it will be better to execute a family settlement deed and resolve the issues.
3. Can the parties wanting to sell their shares to an interested buyer sell it to get at least some money?
Opinion: No, the property will sell with the consent of all the shares if there is no condition in Will then decide by the court.
4. I have doubt that the opposing parties have adopted a waiting tactics. One person is residing locally. He may be thinking that he can encroach it once all people get fed up and go away. Is there any way by which taking over by a person or group can be prevented?
Opinion: File a civil suit for injunction before civil court of area where the property is situated and get Stay order from the court.
5. Is there any other solution to this problem which I have not written here?
Opinion: Amicably settlement is best option for all the share holders.
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Hi
Please find herewith our response.
1) Since the plot size is too small, it is better to sell the plot as 1 single wholesome piece.
2) You can also ask the court to direct the opposing parties to submit their price quotes
3) Yes. courts can appoint an advocate commissioner to conduct an open auction to sell the property and thereafter distribute the share to the inheritors in accordance to the WILL.
4) Whilst making the application to court, initially the inheritors will have to bear the costs. the same can be fully reimbursed/partially reimbursed by the buyer at the time of auction if so stipulated in terms and conditions of sale of property through auction.
5) There are many private auctioneers in Bangalore who can do the auction of property by following a process of issuing paper advertisement, organizing site visits, providing copies of title deeds etc prior to conducting auctions. You may also contact one of them and get the property auctioned
hope this helps
In this case, who will have to bear the expenses - only the petitioner/s or all? Can some of the beneficiaries grab the land by posting a binami buyer? 3. Can the parties wanting to sell their shares to an interested buyer sell it to get at least some money? 4. I have doubt that the opposing parties have adopted a waiting tactics. One person is residing locally. He may be thinking that he can encroach it once all people get fed up and go away. Is there any way by which taking over by a person or group can be prevented? 5. Is there any other solution to this problem which I have not written here?
The property had been bequeathed by a will and the will has been granted with probate too.
Now the problem is about selling wherein some of the beneficiaries are not cooperating.
The best solution to this is to file a partition suit before the court seek partition and separate possession of the individual's share who is in the need of his share or is urging to sell the property.
In this partition suit itself he can file an application seeking injunction restraining others from alienating or encumbering the property in any manner till the disposal of this suit as an interim relief.
No doubt the property is indivisible but the court may order for bringing the property into auction and the consideration amount shall be disbursed accordingly to all the beneficiaries.
Once there is a stay by the court, nobody can try to encroach or alienate the property, hence need not be worried on that aspect.
1. The smallness of the plot is no ground which ousts the jurisdiction of the civil court to divide the property through a decree in a suit for partition. However, practically speaking the individual legal heirs will be unable to sell their respective shares if the plot is small in size.
2. The court cannot force any of the parties to sell his/her share.
3. The court can in terms of a consent decree appoint a receiver to sell the property to divide the sale proceeds. The expenses of receiver will have to be borne by all the co-owners.
4. After the decree of the civil court any co-owner will be at liberty to sell his share.
If you apprehend that someone may commit trespass into the property then you may file a suit for injunction against him.
1. Court will not interfere in to the matter and force/direct the unwilling heirs to agree to sell their shares of the property,
2. The right step for the heirs who are willing to sell their shares is to sell their undivided share to the owner of the adjacent plot and in that case the said owner of the adjacent plot can file partition suit and claim his share which will increase his area of total property owned,
3. After finding that 50% of te share of the property has been sold to the neighbour, the unwilling heirs will come to the negotiation table and agree for selling their shares also.
Thanks to all the learned advocates who gave correct reply to my queries. I understand that the property is described in the Will as "indivisible", it will be better if we approach the Court for sale only. Even if it is divided somehow, the small land (some) without access will be useless for sale. I understand that a group can sell their shares (at least 50%), preferably to the owner of the adjacent plot. But the problem is: will they pay a price, since this only opens the door to the Court for them? I also understand that though the first petitioner may have to deposit the Court expenses such as Commissioner salary, eventually all inheritors will be asked to bear the cost. Please confirm. Regards.
1) you may not get full market price if all legal heirs are not willing to sell their share in property
2) you are correct that purchaser will have to file suit for partition for division of property by metes and bounds
3) eventually all legal heirs have to bear the expenses for division of property
The expenses to be borne for paying remuneration to the Court/Advocate commissioner shall be borne by the petitioner seeking an assessment report by the said commissioner by filing a petition in this regard.
If the petitioner is alone then the expenses have to be borne by himself and not shared by others.
However it is mutual when others join the petitioner for the common cause.
1. Court will not interfere and give any direction for selling the said property which you shall have to do after settling your difference amicably,
2. The owner of the adjacent land may be willing to give you the better price than others in the given circumstances since they will be benefited by acquiring part of your land which will increase his total land holding in one stretch.