The question of selling a share in an inherited property arises when you inherit a property jointly with others. There is joint ownership, and there are co-owners. To determine the share of each co-owner, we need a partition deed.
After the amendment in the year 2005, in Hindu Succession Act, 1956 the interest of deceased Hindu, shall devolve by testamentary or intestate succession as per the Act. The law of intestate succession is more appropriately the law of inheritance.
The self-acquired property can be bequeathed by will by the owner to anyone even to the exclusion of legal heirs, but the ancestral property devolves as per the law of succession.
Types of co-ownership
Co-ownership can be:
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- Tenants in common – Share of each co-owner is not specific. When one co-owner dies, his share passes on to his heirs as per his will or intestate succession. The heirs become tenants in common with other surviving co-owners
- Joint tenancy – Each co-owner owns an equal share in the property. When a co-owner in joint tenancy dies, his share passes to surviving co-owners. There is a right of survivorship.
- Tenancy in entirety – A particular kind of co-ownership where husband and wife share equally. None of them can sell the property without the consent of other.
Unless expressed, in the document of title to the property, the law presumes co-owners to be tenants in common u/s 19 of Hindu Succession Act, 1956. It means no right of survivorship.
Rights of Co-owners
A co-owner has
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- Right to use
- Right to possession
- Right to dispose of off his share in the property (with or without the consent of other co-owners as provided in the document of title to the property)
Division of share of co-owners by partition
The shares of the co-owners are undivided. A partition deed is required to divide the property among the co-owners so that each co-owner gets his share to which he is entitled to as per law. Partition can be
- By mutual consent
- Through court by filing a partition suit.
A co-owner’s share in property is inheritable and transferable.
Undivided share of co-owners
The co-owner can sell even his undivided share in the absence of any partition deed. The buyer of the share steps into the shoes of the co-owner. He can enforce partition. He acquires the rights of the transferor.
Do we need the consent of other co-owners to sell the share in an inherited property?
According to the Transfer of Property Act, every co-owner has a proprietary right of the entire property. The sale has to be made with the consent of all co-owners. But if there is an agreement that gives the co-owners exclusive rights to certain parts/portions of the property, a co-owner can sell his portion.
However, if the dwelling house is the subject matter of sale, then
- All co-owners who jointly own the house must give their consent.
- The transferee does not get the right to joint possession with other co-owners.
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Generally, co-owners are free to transfer/sell their share in the inherited property. However, one co-owner cannot transfer the share of other co-owner without permission.
Selling the share in inherited property involves an understanding of the nature of co-ownership and rights of all co-owners. Partition deed is required to determine the share of each co-owner, with clarity.