Sale of property in the absence of co-owner
My mother has a jointly owned property with my father who passed away 6 years ago. we have a varas dakhala which states myself, my sister and my mother are the legal heirs of my fathers' property. Now my mother wishes to sell the property but the biggest issue is my sister would not be able to come to sign her no objection, the issue being she has left her husband and now is untraceable since last 9 months. We did register a missing complaint with the local police and have tried a lot to search for her but in vain. Please advice how can we sell the property now?
Section 44 of the Transfer of Property Act 1882 is concerned with transfer by a co-owner. According to the Act, every co-owner has a proprietary right of the entire property. Hence, any sale has to be done with the consent of all co-owners involved. As per Section 7 of the Transfer of Property Act, 1882, only the interest of a co-owner can be sold, to another co-sharer or to a third party. The title of all co-owners cannot be transferred by one co-owner without the consent of all. If, there are specific conditions present in the agreement that gives co-owners exclusive rights to certain divisible portions of the property, a co-owner can sell his own portion. For example, in cases where the co-owners have property arranged in separate plots (for the purpose of convenience), joint or co- owners of property can sell their own interests in the properties, which they own with other co-owners. However, a co-owner will not be permitted to sell the ownership interests of the other owners holding title in the property.
Research by - Anina D'Cuniha, Lawfarm
Book a phone consultation with a top-rated lawyer on Lawfarm.