To sell my part of parental property
I and my elder brother were gifted a land by my father . i and my elder brother contructed 3 floors on our respective parts(my back and my brother in front ) and a common passage was given in between for our common use .
now i want to sell my back part with usage of common passage to my client, but my elder brother is objecting and denying the sale of common passage to my client.He is not interested in purchasing my part. He says that he will allow the use of common passage to my family members only and not to my client.
Also please tell what r his rights and power for use of common passage.
Has he any right to object this sale of my part as a neighbour.
Is it mandatory to obtain NOC under neighbours rights.
Can he claim or force to purchase my part at a lower amt as compared to my clients amount.
Asked 4 months ago in Property Law from Udaipur, Rajasthan
1) under section 44 of transfer of property act co owner can sell his share without consent of other co owner
2)your brother cannot restrain purchaser from using the common passage
3) you have offered your brother first right to purchase your portion of house but he declined to do so
4) your brother had to offer market price for purchase of your portion of property
There is no legal hindrance to sell undivided sahre in the joint proeprty of a parson.
So you d not require any consent to sell any part of your share.
To choose an buyer and sell your part.
1. You cannot sell the common passage unless it has been gifted to you by your father. However, the buyer of your part of the property will step into your shoes after the sale deed is executed in his favour in as much as he will have the right to use the common passage in the same manner as you,
2. Your brother cannot restrain you from selling your share. No NOC is required.
1. The said land upon which both of you constructed dwelling houses are in your joint names since it was gifted to both of you jointly by your father.
2. Both of you have equal right, title and interest on the common passage which you have laid for use of both of you and your families.
3. After you sell off your house along with your rights to use the common passage, the buyer steps in to your shoes in connection with the ownership of your house including the right to use the common passage which was used by you so far.
If you have acquired the property with rights for common passage, you are entitled to sell your complete rights, your brother cannot legally object to this.
You even do not have to get NOC from your brother or neighbors to sell your property along with rights for using common passage for ingress and egress.
You can go ahead with selling of yor property, in case he is creating any problem or hurdle to this, you may file a mandatory injunction suit agaisnt him to not to interfere in your in your possession and enjoyment of the property.
Thanks for answers.
Under section 44 there is clause that a stranger cannot use or purchase common passage of a dwelling house of undivided family.
We have a "batwara" drafted among all brothers.
I want to know that wether this clause apply in my matter. I have a gift deed from my father to claim my part with common passage . My brother died and now his 3 sons lives in his part.
I contacted my brother several times but he is sticking to his point for not allowing anyone else to use common passage. My client is also demanding a written NOC from my brother then only he will purchase my part.
Please guide what to do. how can I get NOC from my brother and what will approx.time for the same.
Asked 3 months ago
Is partition deed between brothers for division of property by metes and bounds duly stamped and registered?
2) you are at Liberty to sell your portion without consent of other co owners
3) your brother cannot object to use of common passage
4) if he refuses purchaser can move court and seek easmentary right of necessity
1. In your case it is not "common passage of a dwelling house of undivided family". It is a common passage between two different three storied houses separately constructed.
2. If your brother refuses to issue NOC in favour of your customer, file a declaratory suit praying for a declaration that you are legally entitled to sell your separate house along with the right to use the common passage.
3. Based on the Court order, you will be able to easily sell off your said house along with the right to use the common passage.
A property in common cannot be sold by an individual separately.
Therefore the common passage cannot be sold by an individual separately, but a mention about the common passage and the rights in the same can very well be mentioned in the registered sale deed.
If you have a mention abut the usage of common passage in the partition deed itself you can inform the buyer accordingly.
If your brother is not allowing or objecting to the usage of common passage, then you can issue him a legal notice and a civil suit seeking relief of easement rights and obtain a court order in this regard.