• Indian partition act section 4

I have three brothers . we have a kuchha house in 8 cents from my father, did not write any will . my all three brothers expired in 2008. in 2009 I and legal heirs of my brother wrote an agreement as"If you want to sell first offer to co partners only" .recently I came to know that my brothers legal heirs sold their share to third party. Kindly guide me to proceed legally( under  Indian partition act section 4)
Asked 7 months ago in Property Law from Visakhapatnam, Andhra Pradesh
Religion: Hindu
If purchaser sues for partition and claims possession of his share you can exercise your right of preemption under section 4 of partition act 

2) Supreme Court in  the case of Ghantesher Ghosh v. Madan Mohan Ghosh
and Others, reported in [1996] 11 SCC 446. In this case it has been held
that before Section 4 can be invoked the following conditions must be
fulfilled viz.

(1) A co-owner having undivided share in the family dwelling house
should effect transfer of his undivided interest therein;

(2) The transferee of such undivided interest of the co-owner should be
an outsider or stranger to the family;

(3) Such transferee must sue for partition and separate possession of
the undivided share transferred to him by the co-owner concerned.

(4) As against such a claim of the stranger transferee, any member of
the family having undivided share in the dwelling house should put forward
his claim of pre-emption by undertaking to buy out the share of such
transferee; and

(5) While accepting such a claim for pre-emption by the existing co-owner
of the dwelling house belonging to the undivided family, the court should
make a valuation of the transferred share belonging to the stranger
transferee and make the claimant co-owner pay the value of the share of the
transferee so as to enable the claimant co-owner to purchase by way of pre-emption 
emption the said transferred share of the stranger transferee in the
dwelling house belonging to the undivided family so that the stranger
transferee can have no more claim left for partition and separate
possession of his share in the dwelling house and accordingly can be
effectively denied entry in any part of such family dwelling house.
Ajay Sethi
Advocate, Mumbai
29777 Answers
1616 Consultations

5.0 on 5.0

File a pre-emption suit to buy his share.
Devajyoti Barman
Advocate, Kolkata
7696 Answers
92 Consultations

4.9 on 5.0

Since they have sold their share without first making an offer to you the only remedy for you is to file a suit for cancellation of the sale deeds executed by them. A suit for partition does not lie in this case. 
Ashish Davessar
Advocate, Jaipur
20072 Answers
531 Consultations

5.0 on 5.0

1. First be sure that they have sold your brother's share of the said property has been sold to a third party.

2. If confirmed then collect certified copy of the sale deed.

3. As per rule, before selling part of a dwelling house wherein the families of of all the brothers live, the share of the said dwelling house held by a brother shall have to be offered to other brothers before selling it to a third party.

4. This is called pre-emption which is mandatory as per law.

5. File a declaratory suit praying for a declaration that the said sell is invalid for not pre-empting and also a direction upon the registrar to cancel the registration of the saod sale deed.
Krishna Kishore Ganguly
Advocate, Kolkata
14155 Answers
315 Consultations

5.0 on 5.0

1) police will not intervene in civil disputes 

2) since suit for partition is pending better obtain court consent for carrying on construction on plot 
Ajay Sethi
Advocate, Mumbai
29777 Answers
1616 Consultations

5.0 on 5.0

1. What is the complaint of the third party in your constructing the house on your share of the land?

2. Are you encroaching in to his land?

3. This is not entirely a civil matter since encroachment into his area comes under criminal law.

4. In case of criminal matter police has the role to play.

5. It will be prudent on your part to negotiate with police and ensure that they do not interfere in to the matter.
Krishna Kishore Ganguly
Advocate, Kolkata
14155 Answers
315 Consultations

5.0 on 5.0

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