vandana Guest
Asked July 26, 2016

Can I be forced to sell my house?

  • 1 Answer
  • 267 Views

Can my neigbour claim to buy my house without a will? I have 2 sisters & a younger brother. We don't any have Will. I & elder sister have not signed sale deed of my house. But my mom,second sis & younger brother have signed by force. My neighbour has paid 10 lakhs, instead of 20 lakhs. If it is violation of law under which article & section it been violated. pls let me know". 

Answer 1

A will is a document in which a person specifies the method to be applied in the management and distribution of his estate after his death; it is not a necessity for sale of property to the neighbour. There are 3 steps for completion of sale procedure, despite the absence of a will-

Sales agreement. This agreement between the parties is to be done on a Rs. 50 Stamp Paper.

Title deed. These are documents showing ownership and rights, obligations or mortgages on the property.

Registration. Since 2000, registration of land has become mandatory for the transfer of any immovable property. The details of the title deed will be transferred the registrar. Additionally, registration in the Revenue Department is also essential for complete transfer of property.

 

Hence, due duty and registration of the sales agreement or contract are essential for a complete sales deed or sales conveyance, which mark the transfer of title and ownership of the property.

 

Since you mention a will, this property might be a jointly owned ancestral property.  This joint property ownership may be in the form of joint tenancy or tenancy in common. In case of joint tenancy the deceased person’s interest is automatically transferred to the joint tenant, i.e., the son who jointly owned the property with his deceased mother. However, if the co-ownership is in the form of ‘tenancy in common’ each owner possesses equal right or share of the property.

As per S. 19 of Hindu Succession Act, 1956[1], if two or more heirs succeed together to the property of an intestate, they shall take the property (if not provided otherwise)-

(a) by per-capita distribution and not by per-stripes distribution; and

(b) as tenants-in-common and not as joint tenants.

In a per-capita distribution, the succession is according to the ‘number of heirs’ (i.e. heads). Among them the estate is equally divided; therefore, each heir gets equal quantity of property from the heritable assets of the deceased. (On the other hand, in per-stripes distribution, the several heirs belonging to different branches acquire their share of property depending upon the property available to their branch, unlike the distribution of assets in per-capita system.)

If this is such a case of ancestral property without will, you, your mother and your siblings, each enjoy equal share of the property. Hence, your mother, younger sister and brother can legally sell off their shares of the property, but cannot force ably sell the entire house as it consists of yours and your elder sister’s share as well. This is covered by by S. 44 of Transfer of Property Act, 1882[2], which provides the co-owners with right to sell off their share of property.

In case of Indian Succession Act, 1925, intestate property distribution is further substantiated in Chapter II, applicable to all other than Parsis. As per S. 33 of Indian Succession Act, 1925[3], the widow (in this case if your mother is a widow and the said property belonged to her husband, your father) is entitled to one third of the share and the remaining two-third of the share goes to the lineal descendant i.e., among you and your siblings.

Whatever the case being, joint ownership, ancestral property or inheritance as per the Indian Succession Act, 1925, for successful sale of complete property, your mother, sister and brother must file a partition suit in the court, under the Partition Act, 1893. Sale of complete property, without court order, would not be legally binding and would not lead to transfer of title to the neighbour as they are not the legal owners of the entire property in the first place.

 

 

[1] Available at: https://indiankanoon.org/doc/589488/

[2] Available at: https://indiankanoon.org/doc/513068/

[3] Available at: https://indiankanoon.org/doc/783121/

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