• Mother wants to sell the property land co-owned with brother

Here is my query  
Scenario:"After my father expired the ownership of the house was given to my brother, I was a minor at that time so my mother gave a consent on my behalf that I do not have any objection to ancestral property and will not claim it in future. My mother has been looking after the house maintenance etc and have really worked hard over the years on it. House is in my brothers name, however the land on which it is build is co-owned between my brother and mother. Recently my brother and sister in law have been abusive to my mother and she plans on selling her share to move to a retirement home. 
1. Can my mother sell land by herself without my brothers consent?
2. Now I am 18 year and older and think I too have the right in ancestral property, is there any way I can claim it?
Asked 2 years ago in Property Law from United States
Religion: Hindu

1. The share of a minor cannot be alienated without the orders of the court. So the transfer of your share by your mother to your brother is illegal and can be declared so by the court if you challenge it through a suit for declaration.

2. Your mother is free to sell her share unless she has relinquished it in favour of your brother. To sell her share she does not require the consent of your brother.

Ashish Davessar
Advocate, Jaipur
24834 Answers
699 Consultations

5.0 on 5.0

1. The undivided share holder of a property like your mother in this case sell her share without the consent of another share holder. However due to practical problem involved in such sale it is very difficult to get proper buyer for such sale.

2. The parent can not transfer immovable share of a minor in the joint property like in your case without the necessary permission of court. So the minor e.g.you within three years after attaining 18 years can file a suit to set aside such transfer.

So you can file now such suit so transfer of your share in favour of brother will be cancelled.

Devajyoti Barman
Advocate, Kolkata
15006 Answers
208 Consultations

5.0 on 5.0

Dear Concerned.

No, to sell her portion of land she has to file a partition suit for having a clear defined share - and also claim share in the house/ home constructed by your brother as that built on ancestral land.

You need to file a declaration suit for claiming your share in the land / the property you are referring to.

Best of luck.

Atulay Nehra
Advocate, Noida
1154 Answers
40 Consultations

4.7 on 5.0

1) under section 44 of transfer of property act co owner can sell his share without the consent of other co owner

2) you can file suit for partition to claim your one third share in the land .

3) your mother could not have relinquished your share without court consent as you were minor at that time

Ajay Sethi
Advocate, Mumbai
55702 Answers
3358 Consultations

5.0 on 5.0

Your mother can sell her share without consent of anybody. Minor share can sold only through court permission .When the minor attain majority he can claim the property within 3 years from date of attaining major. So the consent of mother is not legally sustainable if you objected. IF so you can file case for getting your share by civil law.

Ajay N S
Advocate, Ernakulam
3036 Answers
57 Consultations

5.0 on 5.0

this is an ancestral property and your mother along with her child has interest in the property despite the fact that property is in the name of one coparcener. you should take a temporary injunction order from the court for preventing any type of transfer of the property.

Shivendra Pratap Singh
Advocate, Lucknow
5075 Answers
78 Consultations

4.9 on 5.0

in some recent decisions the supreme court of india has held that a mother (specially a widow) can perform as Karta or manager of ancestral property and she can sell the property for the welfare of the family. when property is became a subject of dispute between the coparceners widow can sell it (without consent of the coparcener) and this act shall be treated as the welfare of the family.

Shivendra Pratap Singh
Advocate, Lucknow
5075 Answers
78 Consultations

4.9 on 5.0

1.If the land is in the joint name of your brother and mother, the house constructed thereupon can not stand in the single name of your brother and it has to be in the joint name too. However,if the title of the land stands in joint names, then your mother can not sell the land without the consent or signature of your brother.

2. If title of a property flows without any interruption for 4 generations i.e. from great grandfather to great grandchildren without executing and registering any deed of conveyance, then the said property is called ancestral property.It appears that the instant property is not your ancestral property. Moreover, a minor's share of ancestral property can not be dealt with his/her mother and can not be given any No-Objection by her. District Judge only can permit dealing with the share of the minors property for his/her welfare. So, if the property i ancestral one, then you have your share in it which your mother can not convey to your brother for and on your behalf.

Krishna Kishore Ganguly
Advocate, Kolkata
20925 Answers
525 Consultations

5.0 on 5.0

If this property belonged to your father and he is reported to have died intestate then it devolves equally on all his legal heirs consisting you, your brother and your mother, including your sisters if any.

Your mother cannot give away your legitimate share in the property to your brother especially during your minority.

You have rights in the property as well as your mother has.

You both can file a partition suit and and also seek an injunction restraining your brother from alienating or creating any encumbrance on the property till the disposal of partition suit.

Consult a local lawyer for further needful to be done on this.

T Kalaiselvan
Advocate, Vellore
45766 Answers
539 Consultations

5.0 on 5.0

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