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I have two brothers and we were bequeathed an equal share of our mother’s property—a plot of land with a building— after her death. I am in dire need of money and want to sell my share of the property. But my other brothers are not allowing me to do so. What options do I have under the circumstances? 

—Name withheld on request

 

 Based on the facts narrated, it is understood that you and your two brothers jointly own the property which is undivided and that you are in need of money and willing to sell your share in the undivided property. You may offer to sell this share to both the brothers collectively or individually;

 In case, both the brothers are not ready to buy your undivided interest in the property, then you are legally allowed to transfer your undivided right title and interest in the property to a third party. The buyer then acquires your share or interest and to give effect to the transfer, your right as the seller to joint possession or other common or part enjoyment of the property is also transferred including the right to enforce a partition of the same. 

This transfer of your interest to the buyer will be subject to the conditions and liabilities affecting at the date of the transfer. However, in case the property sold by you is a house used by you and your brothers along with their respective family members, then the buyer will not be entitled to joint possession or other common or part enjoyment of such a property.

 

We recently bought some land with proper documentation. Now, some claimants have come forward with documents to dispute our right to that land. How do we know that their documents are genuine? What needs to be done now?

—Name withheld on request

 

The words ‘proper documentation in the query entails carrying out your diligence to acquire the property free from all encumbrances by carrying out searches on the title of land so as to understand who the last owner of the property is. 

If there are any encumbrances and/or charges of any third party on the land, it  puts to test all the representations being made by the seller. An encumbrance or charge against a property by a party that is not an owner limits the transferability of the asset until it is lifted.  From the facts narrated in the query, it is assumed that you have acquired the property by executing a sale deed or any other transfer document which is duly stamped in terms of the applicable state laws and thereafter the transfer documents have been registered with the office of sub-registrar of assurances, which gives legal validity to the transaction.

In the scenario of a rival claim, you may have an option for ‘specific performance of the sale/ contract’ in your favour or in the alternative to ask for refund of monies on account of the misrepresentation of material facts and for a declaration that the sale to you was fraudulent.

Aradhana Bhansali is partner, Rajani Associates.

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