Can you sell your share of an Inherited Property?

Can you sell your share of an Inherited Property

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:


Guide for NRIs to Sell Inherited Property in India


  • 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


How to deal with the inherited property – Inheritance law in India


  • 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.

4 Easy Steps For NRIs To Sell Inherited Property In India


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.

Guide for NRIs to Sell Inherited Property in India

succession certificate

STEP 1: TRANSFER TITLE OF THE PROPERTY

After inheriting the property from your ancestor, the first thing that you must do is transfer the title of the said property to your name. This can be done by the process called ‘mutation of revenue records’. For this you would need a copy of the will; in case there isn’t one, a Succession Certificate from a local court would work too.

STEP 2: GET THE REQUIRED DOCUMENTS IN ORDER

Here’s a list of all the documents that you would require:

  • Original Purchase Agreement, i.e. title document of the said property.
  • Original Share Certificate, in case of the unit in a co-operative society.
  • No objection certificate, issued by the said society.
  • Copy of approved plan and occupation certificate, which would be issued by the concerned authority, a municipal corporation.
  • Lawyer certificate, in case the seller does not possess the original documents stated above, a certificate from his lawyer proving that he is the rightful owner would be required.
  • PAN number, It is essential to apply for Tax Exemption Certificate under Section 197.

STEP 3: IDENTIFYING PREFERRED SALES METHOD

To carry out the transaction for the sale, the NRI can either hire a professional company or he can do it himself.  These companies provide end-to-end solutions including the identification of buyer, handling legal issues, due diligence and the tax issues. But, for these services that they provide, they charge a fee, which is a percentage of the sales’ consideration.

STEP 4: COMPLETING THE TRANSACTION

This can also be referred to as the actual process of the sale, and this can further be divided into the following steps:

  • Identifying the sale value, in case you have hired a firm, they would provide you with the complete data to determine the price such as the value of similar properties in the same locality. If you are doing the transfer on your own, you would require the similar data.
  • Managing structure of the transaction, unlike the prevalent practice of use of cash, something that the NRIs do not prefer using, one can easily sell the property without involving the cash component.
  • Issue an Admit Power of Attorney, an Admit PoA states that while the documents are executed by the owner, the PoA holder would merely represent him in the registration office.
  • Tax Issues, immovable property sold after 3 years of purchase is taxed at 20.6% in India. Further, in case of NRIs, it is imperative for the buyer to deduct tax at source, which presents another set of complications for the NRIs.