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Nitin Raikar
Asked September 25, 2019

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Hi Sir ....Just Posting My matter below ...would like a advice. My father A and his brother B bought a plot jointly with both of them having their name in the registered Sale deed, They jointly constructed a house for living. Expense was born by both equally. After some years diffrences arose in them and the plot along with the house got partitioned by metes and bounds ...with the deed of partition by metes and bounds. Due to which they were forced to stay in the same house sharing a common wall . Now ...if B wants to sell his share of the property including the house, Does my father has the first right of Purchase of the said share. Or is there any Rule like RFR for this case .. ..kindly let me know ....it will be of Great help. Regards Nitin

Answer 1

Dear Sir,

Your father will have first claim to purchase it is called right to Pre-emption.

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Right To Joint Possession And Right of Pre-emption

There are two views in this matter. The purchaser has no right to joint possession of the property compelling partition. He can sue all other coparceners for that purpose. [32

If the vendee has obtained possession, the other coparceners can get him ejected by a suit. All that the purchaser is entitled to in such a suit is a declaration that he is entitled to the share of the coparcener against whom the decree has been passed.

The Bombay High Court has a different approach. It gives some discretion to the court in the matter of ejectment of a stranger purchaser. In Bhau Laxman v. Budha Manku [33] the court laid down three rules:

First, if a purchaser stranger of the undivided interest of a coparcener in a joint family property is out of possession, he should not be given joint possession with the other coparceners but should be left to his remedy of a suit for partition.

Secondly, on the other hand if the purchaser has obtained possession of the property, a coparcener who has been excluded may obtain joint possession with the purchaser.

Thirdly, the purchaser in possession need not be ejected in a suit for recovery of possession brought by an excluded coparcener. The matter should be decided on merits because he is not a trespasser. In a suitable case he may be declared to be entitled to hold (pending partition) as a tenant-in-common with other coparceners.

The issue came to be discussed by Supreme Court in M.V.S. Manikayala Rao v. M. Narasimhaswami [34] . The court held that it is well settled that a purchaser in such a case cannot claim to be put in joint possession with the other coparceners. He has only the right to ask for general partition of the joint property.

 

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