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Monday, December 12, 2016

Preventing division of joint property : Hindustan Times

HOUSE DIVIDED No one can transfer undivided interest in a joint property without taking into account the preferential right of co-heirs

Under the Hindu law of succession, if a person dies without leaving a will (intestate), his or her property devolves upon the class I legal heirs in equal proportion. By virtue of such inheritance, they become joint owners of such property. Complications may arise when one of them decides to alienate or transfer or sell his or her inherited undivided interest in the immovable property to a stranger. Undivided ownership interest in property means that share of the ownership in the property is identified but not demarcated till its partition or separation from other shares of such property. Till then, each coheir jointly owns property with others.

Section 22 of the Hindu Succession Act, 1956, confers a preferential right on the remaining co-heir(s) or co-owner(s) to acquire such undivided interest in that property. The purpose of conferring a preferential right to co-heir(s) is that strangers or outsiders need to be kept out to maintain the integrity of the property. It is a remedial measure to moderate inconvenience resulting from transfer to an outsider by a co-heir of his or her undivided interest in immovable property that was inherited along with other co-heirs.

The courts of law have on various occasions held that a statutory duty is cast on the transferor-heir to give notice of his intention to transfer his undivided interest. In cases where it is shown that the transferee has purchased the property without any notice regarding the same given to the remaining class-I co-heirs, the transfer could still be challenged after it was completed.

Other co-heirs can enforce their preferential right under the Act to acquire the transferred undivided interest by filing a regular civil suit before the competent civil court. Also, since the right to claim preference over a property in terms of a statute ordinarily is a weak right, a suit by the co-heirs for claiming such a right can be filed within one year from the date of sale of property and not later. It is pertinent to remember here that this special preferential right under the Act can be availed only for a joint property. In case a partition has taken placebetween the coheirs resulting in division of the jointly owned property through specific or respective allotment or demarcation of share to each co-heir, such preferential right shall not exist anymore. Each co-heir shall then have the liberty to transfer their respective demarcated/ partitioned share without any restriction to offer it first to other co-heirs.

Therefore, it can be said that under the Act, a co-heir cannot transfer his undivided interest in the jointly owned property that he inherited with other co-heirs, without reference to the preferential right of the co-heirs till such property is jointly owned. The law which provides for inheritance by co-heirs under class-I, limits the freedom of disposal of jointly owned immovable property. When the transfer is in violation of the above said provision, the remedy available for the other co-heirs will be to seek intervention of the court to enable them to acquire the right which has been transferred away by the other co-heir in violation of the Act.

  • 10 Dec 2016
  • Delhi
  • The author is a senior partner at Zeus Law, a corporate commercial law firm. One of its areas of specialisations is real estate transactional and litigation work. If you have any queries, email them at ht@zeus.firm.in and htestates@hindustantimes.com. Sunil













































  • with thanks : Hindustan Times : Dated 10th December, 2016

1 comment:

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