LE­GAL REME­DIES

Joint prop­er­ties

Hindustan Times (Chandigarh) - Estates - - FRONT PAGE - Su­nil Tyagi ht­es­tates@hin­dus­tan­times.com 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 us at ht@zeus.firm.i

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 pref- er­en­tial 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 lib- erty 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.

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