Legal Advice

Whether one co-owner can sell a land without actual division

Query

I want to know whether one co-owner can sell a land without actual division when there are five co-owners. A registered Will contains names of only five brothers. This property has divided equally in all 5 brothers. Grandfather & grandmother both are no more. My grandfather owned one big piece of land on the highway (purchased by himself). He had 5 sons & one daughter. Before his demise, in 1994, he had registered his Will. In the registered will he has divided this property between his 5 sons only.  Sons & daughters Name are :- A (Son) B (Son) C  (Daughter) D (Son) E (Son) F (Son). In this sequence, B (Son) has done two marriages. Son B, has 1 daughter from first marriage. & two sons from second marriage. Son B has registered one case for division of this land and along with that his daughter has raised the case for share in this land from his division.  In the records of rights (jamabandi) for land, the names are specified of only 5 sons of my Grandfather (A,B,D,E & F). Can son A sell his part of land before the division of land ? Whether any chance that Daughter can claim a share in this land? Is there  any chance of  issues raised by other parties in selling part of land by Son A. Is there any chance of cancellation of sales deed and registry when son A wants to sell his land.

Advice

There are five co-owners and all have joint possession. Therefore it is impossible to sell the share of one owner without affecting the actual division. The property must be definite at the time of sale. Its boundaries, area and ownership should be well defined in the sale deed. Without partition you cannot claim that you are the owner of a particular portion of land. 

You cannot sell the land without partition

You should first divide the land before sale and demarcate boundaries and area for each owner. Thereafter you can sell your land. This process is mandatory otherwise the sale deed will become void. The other co-owners can sue the purchaser and refuse to give him possession over the land.  

Can a daughter claim her share?

No, in this scenario the daughter cannot claim her share in the property. Your father had already divided the property among the sons. The amendment of Hindu Succession Act (HSA) does not apply in your case. Section 6 of the HSA confers coparcency upon the daughter. Therefore, the daughter gets share in the ancestral property by birth.

This property has already been divided before the coming into force of the amendment Act. Therefore, the daughter has no right to claim share in this property. 

Cancellation of sale deed

If you sell this land without partition the co-owners will  sue the purchaser and file a civil suit for the cancellation of sale deed. Without partition you cannot claim which portion of land belongs to you. Your possession is not defined yet. Hence, you cannot sell the land. 

Shivendra Pratap Singh

Advocate

High Court Lucknow

Property

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