Can You Sell Your Share Of An Inherited Property?
Can one heir sell the property? Can you evict someone if he/she is living on in your property making you unable to sell your share of the property? In India, given the multitude of property-related problems, such cases are common. Here are two such cases that help you know your legal rights.
When a relative refuses to move out of the property
Abdul Malik says that his father’s property in Hyderabad was let out to his uncle (father’s brother) because the latter could not afford a rented accommodation. He has been living in the house for over 10 years while Malik and his family have been living in Mumbai. Malik wishes to sell this property in Hyderabad but his uncle is unwilling to move out. The property papers are however in the name of Malik’s father and he is seeking advice on what he must to do to get the property back.
Mumbai-based advocate Ajay Sethi also says that the ideal way to proceed would be to have Malik’s father issue a legal notice to his brother to vacate the house because they are just ‘gratuitous licensee’ licensed to live in the premises without paying any rent or consideration. If they do not vacate, Malik’s father should file a suit for eviction against his brother.
Rajgopalan Sripathi, a Hyderabad-based advocate says, “Since there is no rent agreement, it is actually beneficial to you because you can always file a criminal case against your uncle in case you want to.”
Ashish Davessar, advocate in Jaipur says, “You can file a criminal complaint for house trespass against him which will result in his prosecution in the criminal court. However, to evict him from the property you require the orders of the civil court, which you may obtain by filing a suit for his eviction. Both the cases should be filed simultaneously to generate the required amount of heat on him.”
When a sibling refuses to move out of the property
Kirtan Sinha’s mother had passed away in 2005 and his mother’s property was given to him and his brother Manik. While Kirtan has been living away for the last 30 years, Manik has been using the property all this while and has also let it out to tenants. Kirtan had asked Manik to vacate the house but on his refusal to do so, he is looking at a way to sell his share of the house. He wants to know whether he can do it without making any physical changes in the house and without seeking his brother’s consent.
In case of an inherited property, each sibling is an equal owner in the property unless there is a mention in the will that a certain percentage be given to one of the co-owners. This also means that if one of the co-owners wishes to move out, the others should choose to buy his share or decide to issue a surrender deed for the extent of the share of his property.
In Kirtan and Manik’s case, this may not be easy given that the latter feels he is the real owner of the property or is refusing to share his entitlement. In case the partition is through mutual consent, a partition deed is executed by the co-owners of a property. However, to make it legally valid, the partition deed should be registered at the sub-registrar office of the area. It becomes important here to talk about the partition deed. Although you should seek legal help when filing a partition suit, here is a little guide to help you understand the logic behind a partition deed.
All about partition deed
As more than one person can jointly own a property, they all have either equal or a certain percentage of the right to possess and use the property. Partition of property helps protect the interest of co-owners. Post division, you get to become the independent owner of your share of the property and you could sell, gift, transfer, exchange or surrender at your will. This helps avoid problems that could have otherwise happened when it comes to taxation, inheritance or when you transferred your share of the property. It could also help ascertain your rights if you were to be alienated from your family for any personal reason.
It is not always easy to amicably resolve issues related to property. If the co-owners are ready for the partition, they need to execute a Deed of Partition. Like all legal documents, a partition deed must be duly signed by all the co-owners irrespective of the fact whether they have the same ancestry or are business partners or co-owners in any other way. The number of co-owners could vary.
Next, this partition deed must be registered at the sub-registrar’s office where the property is located. You would also be required to pay a stamp duty of two per cent of the value of property that is to be partitioned. Here is what a partition deed looks like this
It is not necessary that the share of co-owners in the partitioned property should be equal. It depends on the amount of investment put in or what the purchase document establishes the share as. In case there is no share of investment, then it is assumed that all co-owners have an equal undivided share of title and right in the property. One crucial aspect of joint ownership is the undivided share. Although all co-owners are equal or part owners of the property, their shares are not physically ascertainable with definitive boundaries. Thus, the shares remain undivided.
When there is mutual consent, it is relatively easier to go ahead with the partition deed. Suppose the co-owners do not agree? If there is no mutual consent, you will need to file a partition suit in the court of law. We have explained how to go about a partition suit here.
In this case, you will also need to keep documents related to ownership, transfer and all the originals ready. Do note that this again has to be executed on a stamp paper and be careful to mention the exact share of the respective parties clearly. Also be careful to record it at the sub-registrar’s office with clarity on the effective date of partition.